United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N COOMBES (Solicitor) Messrs Rice Jones Westgate House Market Street Halifax HX1 1PJ


 


JUDGE CLARK

1. This is an appeal by Mrs Suttcliffe, the Applicant before the Leeds Employment Tribunal sitting on 30 April 1999, against that Employment Tribunal's decision, promulgated with summary reasons on 26 May 1999, dismissing her complaint of unfair dismissal against the Respondent firm Crowley Garside Waring & Robinson. By order of the Employment Appeal Tribunal dated 12 January 2000 it was directed that those summary reasons stand as Extended reasons for the purposes of this appeal. This is a preliminary hearing held to determine whether the appeal discloses any arguable point or points of law which ought to proceed to a full inter partes hearing.

The Facts

2. The Respondent carries on business as Estate Agents and Valuers. The principal of the firm is Mr Crowley. At the relevant time the Applicant was employed in the Estate Agency division. Her continuous employment with the firm had begun on 20 February 1995. At the conclusion of her employment she was entirely office-based. The only two relevant employees in the Estate Agency division were the Applicant and Mr Robinson.
3. For 3 successive financial years the Estate Agency side of the business had lost money. On 6 November 1998, having seen the figures for year ending 31 October, Mr Crowley decided that cuts had to be made.
4. On that day he called a meeting with the Applicant and Mr Robinson. He explained the financial position and indicated that redundancies would be necessary. The Applicant accepted, so the Employment Tribunal found, that in a straight choice between herself and Mr Robinson she would have to go. His contacts meant that he was the more valuable of the two so far as the business was concerned.
5. In these circumstances the Applicant was given 3 weeks notice of dismissal by reason of redundancy. She worked out her notice and left on 27 November 1998.

The Employment Tribunal's Decision

6. Having found that the Applicant was dismissed by reason of redundancy the Employment Tribunal considered whether that dismissal was fair or unfair, applying the test to be found in Section 98(4) of the Employment Rights Act 1996.
7. They considered the following matters: -

(1) Consultation. They found that the meeting held on 6 November constituted adequate consultation with the Applicant.

(2) Redeployment. The Employment Tribunal considered and rejected a suggestion made by Mr Coombes on behalf of the Applicant at the hearing, it not having been raised in the particulars of complaint in the Originating Application, settled by Mr Coombes, that a recent recruit to the Lettings Department, called Rebecca, who joined the firm in October 1998 to replace a person who had left, ought to be dismissed to make way for the Applicant. The practice known as 'bumping'.

(3) Selection In view of the Applicant's acceptance that Mr Robinson was the person to be retained, no issue, the Tribunal found arose in relation to selection for redundancy.

8. Looking at he matter in the round and particularly taking into account the size of the Respondent's business, the Employment Tribunal concluded that the dismissal was fair.

The Appeal

9. In this appeal Mr Coombes takes 2 points

A. Consultation

It is submitted that the single meeting with the Applicant and Mr Robinson could not be held to amount to adequate consultation. The decision to make someone redundant had already been made by Mr Crowley. The Applicant was effectively under duress at that meeting. It was followed immediately by her dismissal on notice. The Employment Tribunal, it is said, failed to address the issue of consultation adequately.

We are unable to agree with that submission. As I said in Mugford –v- Midland Bank (1997) IRLR 280, it is a question of fact and degree for the Employment Tribunal to consider whether consultation both individual and with a Trade Union, where it arises, was so inadequate to as to render the dismissal unfair. In our judgment the Employment Tribunal carried out the necessary exercise and found, permissibly we think, that in the particular circumstances of this case, sufficient to consultation had place. We emphasise our role in hearing appeals on points of law. It may be that another Employment Tribunal would, equally permissibly, have found that consultation was inadequate, rendering the dismissal unfair. That of course is not a ground for allowing the appeal on this basis.

B. Bumping

We accept Mr Coombes submission that Section 139(1)(b) of the 1996 Act allows of so-called bumped to redundancies as I indicated in Safeway Stores Plc –v- Burell (1997) IRLR 200. That proposition was doubted by Morison J in Church –v- West Lancashire NHS Trust (1998) IRLR 4, but has since been affirmed by the House of Lords in Murray –v- Foyle Meats Ltd (1999) IRLR 562, see the speech of Lord Irvine LC, at paragraph 8.

10. The question is whether the Employment Tribunal was wrong in law not to find that a reasonable employer ought to have considered dismissing another employee within the business in order to make way for the Applicant, for example, the newly appointed Rebecca in the Lettings Department.
11. We have carefully considered the way in which the Employment Tribunal expresses their reasons in paragraph 9. They refer to the Court of Appeal decision in Thomas & Betts Manufacturing Ltd –v- Harding (1980) IRLR 255, a decision relied on below by Mr Coombes. That is a case which was decided in the days when the onus lay on the employer to show that he had acted reasonably under what was then the Trade Union & Labour Relations Act 1974. Secondly, as we understand the courts decision in Harding they upheld an Industrial Tribunal decision that the employer had acted unreasonably in failing to consider moving the Applicant to another position and dismissing the employee who held that position. We think the case goes no further than that and we accept the Tribunals comment, that the concept of bumping is not one that a reasonable employer should be required to adopt.
12. That we think was the Tribunals approach and we cannot fault it. Again, it would be open to a different Tribunal to find that the employer had acted unreasonably in failing to consider moving the Applicant to another position and dismissing the employee who held that position. But as we have indicated in relation to the appeal on consultation, because another Tribunal may have taken a different view, it does not follow that this Tribunal fell into error as a matter of law in the conclusion which it reached.
13. Consequently, having considered the 2 points taken by Mr Coombes, we are not satisfied that either raises a point which is reasonably arguable at a full hearing and consequently the appeal must be dismissed.