At the Tribunal | |
Before
HIS HONOUR JUDGE WILKIE
MS J DRAKE
MR K M YOUNG CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
FULL HEARING
For the Appellant | MS SEANIN GILMORE (of Counsel) Instructed by: Messrs Langley & Co Solicitors Sun Court 66 Cornhill London EC3V 3NB |
For the Respondent | MRS WENDY OUTHWAITE (of Counsel) Instructed by: Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TY |
JUDGE WILKIE:
"In the circumstances, I regret that I have no alternative other than to issue you with 3 weeks statutory notice to terminate your contract of employment. The notice will expire, therefore, on 13 November 1998."
It concluded as follows:
"Even at this late stage, I hope that you will reconsider your position, recognising that the new contract would operate at no detriment to you. I attach a copy of the employment contract and confirm that your acceptance of the contract before the expiry of your notice period will be welcomed by the Company and our negotiated settlement will remain in force."
"It is clear to us, on her own evidence, that Ms Ryder would never have dismissed the Applicant of her own initiative. The only explanation for her continued efforts to produce acceptable terms for him is that she wanted to retain him in employment. We have not had the benefit of hearing any evidence of Mr Smith and so cannot positively say that it was he who decided that the Applicant must go. If we are right in saying that it was not Ms Ryder, however, it is most probable that it was Mr Smith. Ms Ryder reported to Mr Smith that the Applicant would not accept the contract that was offered and, indeed, was asking for an increase in pay. We believe that Mr Smith concluded that there was only one solution and that was the dismissal of the Applicant.
The Respondent was in reality looking for someone to do a very different job from that which the Applicant had originally performed when he transferred from British Rail. The Applicant could have done that job and, indeed by the time of his dismissal was doing a very different job to his original function. He was undoubtedly over qualified. He was probably over qualified for the original job but he was certainly over qualified for the job, which he eventually found himself doing. They had to be an end to the Applicant's prevarication Either the Respondent had to concede his request for beneficial redundancy terms or it had to pay him substantially more. Possibly it would have had to do both to satisfy the Applicant.
The Applicant has asked us to conclude that because the Respondent did not exceed to the Applicant's request for the continuation of advantageous redundancy terms, the implication is that it must have been anticipating making him redundant. That might of course have been the case, but it does not inevitably follow. This sort of situation there is always an possibility that employees and the Applicants position will become redundant and there is no reason why management, looking for an easy way out, should agree advantageous terms, which may cause problems in the future.
In any event, if a large employer like the Respondent makes a concession of this sort, then it will be more difficult for it to draw the line with other employees, seeking the same sort of variations. Whoever did take the decision to dismiss the Applicant did so because he or she felt that the process of negotiation had to come to an end. It either had to come to an end with concession to the Applicant's dogmatic requests or by termination of the relationship. In our view, despite the Applicant's value to the Respondent company, the decision was taken that the situation could not continue and could not be remedied by conceding either the beneficial redundancy terms, or the increase in pay and on that basis, they included that he was not dismissed by reason of redundancy."
- The decision that Mr Taylor was not dismissed by reason of redundancy, but for refusing to accept proposed change in terms of employment and
- The passage which deals with the reasonableness, or otherwise of the decision to dismiss Mr Taylor for that reason.
As to that issue the Tribunal were referred to and reminded themselves of the principles in Catamaran Cruisers Ltd v William [1994] IRLR 386. In the course of their reasoning in dealing with the various factors identified in that case, they say as follows:
"In the present case, however, there is no doubt in our mind that the Applicant was being paid substantially more than was justified by the functions he was performing. The reason for this was largely historical. He was also claiming to carry over from British Rail redundancy rights which were not discretionary, as were those generally offered by the Respondent. In our view it was reasonable for the Respondent to seek not to further exacerbate the inequality of pay and to insist on acceptance of the common standard of redundancy payment."
Ms Gilmore relies on the fact that in that particular passage, some reliance seems to be placed upon the fact that, according to the Employment Tribunal; Mr Taylor was being paid:
"Substantially more than was justified by the functions he was performing."
"The guiding principle, when it comes to construing the reasons of an [employment] tribunal at an appellate level, must be that, if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate that conclusion unless the relevant words admit of no explanation save error of law."
"That would have been a matter connected with the transfer if it was still a live issue for those transferred. The matter had however, been resolved for the vast majority of the employees transferred and in our view this issue has become an individual matter between the Applicant and the Respondent and had ceased to be connected with the transfer from British Rail."