United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS C LEWIS (Of Counsel) Instructed by: North Lambeth Law Centre 14 Bowden Street (Off Cleaver Street) London SE11 4DS
For the Respondent	MR S J BROWN (Of Counsel) Instructed by The Treasury Solicitor Room 544 Queen Anne's Chambers 28 The Broadway London SW1H 9JS


 


JUDGE PETER CLARK

1. This is an appeal by Mr Pitman, one of 4 Applicants before the London (South) Employment Tribunal chaired by Mr Andrew Bano sitting over 7 days between 25 January and 7 July 1999, dismissing his complaint of unfair dismissal brought against the Respondent Foreign and Commonwealth Office. The Employment Tribunal's decision was promulgated with Extended Reasons on 19 October 1999.
2. The Applicant and his colleagues were employed by the Respondent as Overseas Security Officers (OSOs), carrying out security duties at UK diplomatic posts abroad. As a result of a report prepared by a team headed by Sir Anthony Harris, a diplomat it was decided to substantially reduce the number of UK based OSOs. As a result of an exercise carried out by the Respondent the Appellant, among others was dismissed.
3. For the Respondent it was contended that the reason for dismissal was redundancy, a potentially fair reason and that dismissal for that reason was fair, applying Section 98(4) of the Employment Rights Act 1996.
4. The Appellant and his colleagues wished to argue below that redundancy was not the reason for dismissal; alternatively that the dismissal was unfair under Section 98(4).
5. The Applicants contended that their jobs following their dismissal were performed by locally engaged security officers (LESOs) abroad. The Respondent's case was that there were significant differences between the work of a particular kind performed by OSOs and LESOs, so that the Applicants were indeed redundant within the meaning of Section 139(1)(b)(i) of the Employment Rights Act 1996.
6. It seems that at an early stage in the hearing the Employment Tribunal, of its own motion, raised a jurisdiction issue. The Applicants had been dismissed before the repeal of Section 196(2) of the Employment Rights Act on 25 October 1999. Consequently there was a question as to whether the Applicants were precluded from bringing complaints of unfair dismissal because they ordinarily worked outside Great Britain. Both parties submitted to the contrary; the Applicants were based within the United Kingdom. The Employment Tribunal accepted that joint submission.
7. However, the Employment Tribunal Chairman went on to express the view that if their place of employment was within the United Kingdom, then the requirement for OSOs had diminished regardless of the recruitment of LESOs - Employment Rights Act Section 139(1)(b)(ii). This reasoning is set out at paragraph 8 of their decision.
8. It was in these circumstances that the Employment Tribunal came to record at paragraph 5(b) of their reasons, that the Applicants had conceded that the reason for their dismissal was redundancy. The Employment Tribunal then went on to find the dismissals fair for that reason, having considered in detail the steps taken by the Respondent in the redundancy exercise which they describe as having been carried out with genuine concern and scrupulous care.
9. When this appeal came on for an Ex Parte Preliminary Hearing without the Respondent present before a division presided over by Mr Recorder Langstaff QC on 25 July 2000 the Appellant, who had originally launched the appeal in person, was represented by Counsel, Mr Davies. The Employment Appeal Tribunal dismissed the appeal against the finding of fairness under Section 98(4) but permitted it to proceed to this full hearing on 2 grounds:

(a) on the question of jurisdiction under Section 196(2) and

(b) on the question of the reason for dismissal.

10. In the course of giving judgment on behalf of the Employment Appeal Tribunal Mr Recorder Langstaff QC acknowledges at paragraph 5 of the judgment that the Employment Tribunal below recorded that redundancy was conceded by the Applicants and adds this:

"Whether this included Mr Pitman is disputed. It may be that the word should have been "Respondent", but in any event no point is to be taken against Mr Pitman on this particularly in the Chairman's comments on the Notice of Appeal. We make it plain that he, Mr Pitman sought to understand why it was that any difference arose between locally employed and overseas security officers."

11. In the amended grounds of appeal settled by his present advisers, North Lambeth Law Centre, the first ground of appeal is a complaint that having accepted jurisdiction to hear the complaint of unfair dismissal the Employment Tribunal refused to hear evidence by the Appellant that there was no genuine redundancy of those posts.
12. In response the Respondent by its answer relies on the case which it advanced below but before us Mr Brown makes clear that the Respondent wishes to rely on the concession as recorded by the Employment Tribunal at paragraph 5(b) of their reasons and he submits based on Court of Appeal authority - see Jones v Burdett Coutts School [1998] IRLR 521 that we should not permit the Appellant to reopen that concession.
13. There has been no affidavit evidence lodged to deal with the dispute as to whether or not a concession was indeed made below and no further comment has been obtained from the Chairman since his comments on the original notice of appeal, dated 4 April 2000. That places us in a difficulty.
14. On the one hand the Appellant raises a complaint about the fairness of the proceedings below, that he was not permitted to advance any complaint of his case. On the Respondent's side it is said that the Appellant conceded the point which is the real point in this appeal and should not be permitted to reopen that concession. We have heard submissions from Counsel on the dispute as to what actually happened below, but the only way in which to resolve that dispute is for both parties to go on affidavit and for us to obtain the Chairman's comments and for a direction then to be given as to the future conduct of the appeal.
15. In these circumstances we direct that within 21 days of today the Appellant lodge an affidavit setting out his account of what happened in relation to the "concession" before the Employment Tribunal. A Representative from the Respondent side will then respond by affidavit 21 days after receipt of the Appellant's affidavit.
16. Upon receipt of those documents they will be put before the Chairman for his comments. Once those comments had been obtained the papers will be returned to me to give a direction on paper as to the future conduct of the appeal in particular the question as to whether or not deponents will be required to attend for cross-examination at the resumed appeal hearing.