United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NICHOLAS BOOTH (of Counsel) Appearing under the ELAAS scheme


 


JUDGE REID QC: This is a preliminary ex parte hearing on an appeal by Mrs Nutley, who was the applicant below, against a decision of an Employment Tribunal sitting at Reading following a hearing on 6th and 22nd March 2000. By that decision the tribunal determined that Mrs Nutley was not unfairly selected for redundancy as her employment was terminated by mutual agreement; that there was no unlawful harassment of the applicant; and that the applicant was entitled to three months' notice of termination of employment in the eventuality of redundancy, rather than the 12 months for which she had contended.

1. On this appeal there are two points. The first is that so far as the determination that the applicant was not unfairly selected for redundancy as her employment was terminated by mutual agreement, the tribunal failed to consider, or at any rate, failed to express anywhere in their decision the applicant's case that she in effect agreed to go because she had no choice. It is trite law that even an agreed termination can amount to dismissal if pressure is put upon the applicant or the applicant has no choice in the matter, and the case that she was putting was that at the time when she agreed to go, she was under the impression that she was part of a pool of three, three of whom were due to be made redundant. It was only subsequently that she discovered that in fact the pool was three but only two were to be made redundant but she discovered that too late.
2. The tribunal have dealt with the departure by mutual agreement extremely briefly, in one paragraph only, paragraph 11 of their extended reasons. They do not advert to the argument addressed to them about pressure and lack of choice. In those circumstances, it seems to us, that there is an arguable case for saying that the tribunal erred in law either in that it failed to consider the arguments put before it, or in failing to give any proper reasons for their decision. That point must go to a full hearing.
3. The second ground of appeal is that the tribunal was wrong, as a matter of law, in determining that Mrs Nutley was entitled only to three months' pay on redundancy, rather than being entitled to 12 months.
4. In very brief form the history of her employment was this: she was originally employed by the Berkshire County Council and under that agreement she was employed at the Slough College of Technology. There is a date of notification showing terms of employment dated 1st May 1975 (pages 15 and 16 of the bundle). On 1st April 1989 there was a transfer of undertaking and she was then employed by Thames Valley College of Higher Education. She entered into a new contract, the written form of which we have at pages 17 to 20 of the bundle, which was apparently issued on 5th October 1989, took effect from 1st January 1990 and was signed by Mrs Nutley on 4th April 1990.
5. Whereas under her previous contract, Mrs Nutley had been entitled to 12 months' notice in the event of redundancy, under this new contract (see paragraph 11, page 19) she was to be entitled only to three months' notice.
6. The tribunal determined that that agreement had existed "without variation throughout the applicant's subsequent period of employment until her employment ceased on 31 August 1999". That finding appears to be in error because it appears that the contract was varied following negotiations and at page 27 and 28 of the bundle, one has a letter from Mr Thompson, then Head of Personnel Services, to Mrs Nutley, dated 10th June 1992, the first paragraph of which reads:

"I am pleased to confirm that, following extensive discussions with your recognised trade union, NATFHE, Phase 2 of the 1990 national agreement will be implemented from 1 June 1992."

At paragraph 3 the letter continues:

"Your terms and conditions of service will in future be those set out in the 1990 national agreement; a copy of these new terms and conditions is attached, together with relevant extracts from the Polytechnic of West London Staff Handbook (to be published)."

For present purposes, the most important paragraph of the letter is the fifth paragraph:

"Finally, it is worth reminding staff that the Polytechnic has a policy of "no compulsory redundancy". Notwithstanding this policy, the national agreement states that all staff transferring to the new national contract of employment will retain their entitlement to one year's notice in the eventuality of redundancy."

7. The next event after this was that it became necessary for redundancies to be implemented. In the course of this the employer, which had by now become the Thames Valley University, sought voluntary redundancies, but before the redundancies took effect there was, amongst other things, a letter written to Stuart Godden of NATFHE by Charlotte Thomas, the director of Human Resources, in these terms:

"The University recognises that staff who:

( are currently on teaching contracts at TVU, and

( were employed prior to transferring to the 'new national contract' in 1991, and

( would have been in receipt of a letter from John Thompson, Head of Personnel Services of 10 June 1992 and

( have not subsequently, explicitly given up this right,

have an individual entitlement of 12 months notice in the event of dismissal for redundancy."

I should say that we were also shown a note of a meeting with staff at Thames Valley College on 10th March 1992, which contains the following paragraph:

"10. The twelve month notice provision (in the event of redundancy) should [my emphasis]apply to all staff, following transfer to the new contract."

That document however, is merely notes of a meeting containing a large number of grouses by staff and certainly is not of a contractual nature.

8. The position that Mrs Nutley argued for was that by virtue of the letter of June 1992, she was entitled to twelve months' notice. The problem with that of course is the word 'retain'. She also relied on the terms of the national agreement setting out the matters that had been agreed, which we find from pages 21-26 of the bundle, paragraph 4 of which reads:

"If in accordance with the existing contract of employment as a result of the transfer to the Institution on 1 April 1989, an individual is entitled to one year's notice in the eventuality of redundancy under the Terms of Appendix II of the "Conditions of Service for Lecturers in Further Education" then that entitlement shall remain in force notwithstanding the fact that the individual has transferred to the agreed contract of employment under the provision of Phase Two of this Agreement."

That again, it seems to us, is of no assistance in relation to the first matter. The existing contract which she had provided for three month's notice and she could not therefore be said to be retaining a right to one year's notice. So far as paragraph 4 is concerned, the provision for the retention of an entitlement to a year's notice depended on their being an existing contract of employment, which provided for a year's notice. Again, she was not in a position to rely on that.

9. The position therefore at the time when Mrs Nutley's employment came to an end, to put it neutrally, was that as a matter of contract she had been entitled to only three month's notice but she had been in receipt of the letter of 21st April 1999, which we have read. It retailed a management statement dated 11th February 1999 which contains recognition of certain persons (who as defined in that letter would have included Mrs Nutley) being entitled to twelve month's notice. The tribunal, in our view quite properly, took the view that as a matter of contract she was entitled only to three month's notice, but they then did not go on and deal with the question as to whether, by reason of that letter, the University were prevented from asserting that she should be limited to her contractual entitlement of three month's notice only, and was not entitled to rely upon the terms of the letter giving her twelve month's notice. The way in which the tribunal dealt with that, at paragraph 14 of their extended reasons, is in these words:

"14 … Again the Management statement of 11 February 1999 which recognises that certain staff have an individual entitlement to twelve months' notice in the event of dismissal for redundancy, can only apply to those members of staff who were entitled to twelve months' notice and as the applicant had entered into a new contract in 1989 giving only three months' notice, she was not a member of staff who was covered by this statement."

10. With respect, it does not seem to us that it necessarily follows that the Management Statement of 11th February, which was retailed in the letter of 21st April, can only apply to those members of staff who were entitlement to twelve months' notice. The letter spells out four specific points and those who fulfilled the criteria set by those four points were said to have an individual entitlement to twelve months' notice. It therefore seems to us to be arguable that, so far as that is concerned, the tribunal failed to deal properly with the argument which was addressed to it and may arguably have been in error in the conclusion to which to they came. That is something which seems to us should be properly ventilated at the full hearing of an appeal.
11. We therefore direct that the matter should go to a full hearing of the appeal on the two points: firstly, the point as to whether or not there was a dismissal; and secondly, as to whether the University were, what might loosely be described as estopped from saying that a person who complied with the four criteria in the letter was entitled to twelve months' notice in the event of redundancy. What we propose to do, therefore, is direct that an amended Notice of Appeal be put in within 14 days, so that those two points are properly raised and the tribunal who eventually has to deal with this matter at full hearing can see what it is that it has got to decide.
12. I would not have thought for my part that there was a need for any further specific directions other than the usual directions as to skeleton arguments. I would have thought that the appropriate way of dealing with the case was to list it as Category C and for ½ a day.