United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR McLAUGHLIN (of Counsel) Instructed by: Messrs Thatcher & Hallam Solicitors Island House Midsomer Norton Bath BA3 2HJ


 


JUDGE J McMULLEN QC

1. This is an appeal by the Applicant before a Bristol Tribunal, chaired by Mr J D Bedford, which sat on 28 and 29 August and sent its Extended Reasons on 20 September 2001. The Applicant claimed unfair dismissal; the Tribunal dismissed his claim. The Applicant was represented there and before us by Mr McLaughlin, who has backed up his written Skeleton Argument, for which we are grateful, by oral argument this morning. The Respondent at the Tribunal was also represented by Counsel.
2. The Applicant was employed by the Respondent, with continuity of employment from 1989 until his dismissal on 28 February 2001. The Applicant claimed that he had been unfairly dismissed; The Respondent cited the reason for dismissal as redundancy and contended that if that were wrong, it was for some other substantial reason, and the Respondent acted reasonably in the circumstances, in treating either of those reasons as a sufficient reason for dismissal.
3. The Tribunal made succinct findings of fact:

" The Applicant was formerly employed by Emborough Farms Ltd at Paradise Farm. His duties were principally relating to the milking and care of the cows and the necessary care of the land and provisions which that entailed……."

He was styled "farm manager":

" an appointment under grade 1 of the Agricultural Wages Order 1999 for a worker having "management responsibility for one or more of the workers and general responsibility for the management of the farm."

He was paid a salary and overtime. He received assistance casually from a local contractor in the care of the cows. His timesheet showed him working ninety hours a week. His herd was three hundred head of cows. He was perfectly happy.

4. From 28 April 2000, Paradise Farm and two other farms run by Emborough, were acquired by the Respondent on farm business tenancies. The Respondent had thirteen farms with 2,700 head of cows. This was a rapid expansion and led to the need by the Respondent to rationalise its working and staffing practices. A number of meetings were called by the Respondent to discuss the role of farm manager.
5. By July 2000, a proposed new structure was brought forward, indicating no continuing role as a farm manager. The Respondent, it is fair to say, was most anxious that the Applicant's workload should be reduced from the figure, which they regarded as wholly excessive, of ninety hours a week. A number of proposals were also made, including a salary without overtime additions. It was made clear by the Respondent that the Applicant would not be expected to work ninety hours a week, running three hundred cows, and there was likely to be a reduction in total income.
6. A few attempts were made to try and resolve both the income and the duties issues, as the Respondent saw them. A sixty hour week would be put forward as being the maximum that would be required. In the course of those discussions, the Respondent offered to reduce the number of head of cows from three hundred to two hundred. The talks came to nothing, and the Applicant was dismissed by reason of redundancy with a redundancy payment and, we are told, money in lieu of notice.
7. The Tribunal correctly directed itself as to the meaning of redundancy in sections 139(1)(a) and 139(2) of the Employment Rights Act 1996, and in accordance with the jurisprudence of the cases set out in paragraph 4 of its Reasons, including Murray -v-Foyle Meats Limited [1999] ICR 827 HL and Safeway Stores -v- Burrell [1997] ICR 523. The Tribunal is not criticised by the Applicant about the three stage test which it was required to go through and which it set itself. 8 The Tribunal considered the representations made on the Applicant's behalf that, with the same number of cattle, the work still needed to be done by the Applicant, or by other employees. For the Respondent, it was contended that there was no continuing requirement for the post of farm manager, which would cease to exist, and thus there would be no need either, for the managerial aspects of the post, or for the entirety of the role as a farm manager. The Respondent contended that to concentrate on the work which the Applicant actually had been doing, was to apply a function test which was not applicable.
8. The Tribunal was initially attracted by a simple view that there had been no diminution in the need of the business for employees to do the work which the Applicant had always done, and therefore, there was no redundancy. But as the Tribunal went on in its reasoning, that required a concentration on what the Applicant had actually done. It focused on the wording of the statute, in the light of the authorities which it directed itself upon, and are cited above. The Tribunal found that the Respondents, having taken over Paradise Farm, found themselves with a person in the post of farm manager. Regardless of the extent to which the Applicant, in practice, did or did not manage the farm, the Respondent had no further requirement for employees in that position. The Tribunal thus held that there was a cessation of the employer's need for employees to do work of a particular kind, namely that of the work of a farm manager. In those circumstances, the Tribunal decided that there was a redundancy.
9. Before us, in a Notice of Appeal, and in a Skeleton Argument, it is contended that the Tribunal erred in its application of the tests, which it is accepted the Tribunal correctly gave itself. We disagree. This was essentially a question of fact for the Tribunal, having directed itself correctly on the legal requirements. The Tribunal was entitled to come to the view that there had been a diminution in the need for a person to manage the farm, holding the position of farm manager, and there is no error of law which we can detect in the reasoning. Were that not the case, the Tribunal addressed the alternative arguments, advanced by the Respondent in the Notice of Appearance, that there was a reorganisation and management restructuring which constituted some other substantial reason for the dismissal.
10. The Tribunal responsibly addressed the alternative argument in paragraph 13 of its Reasons, and held that if it were wrong about section 139 and its application to the facts of the case, then it would have accepted the submission that the dismissal was for other substantial reasons. These reasons were set out fully in paragraph 14 as including:

"sound business reasons for a unified management structure including operating costs, communication, bulk purchasing and support teams."

The Tribunal found that:

"It was probably inevitable that the Emborough Farm managers would in due course not be required in those roles, leading to redundancies but, hopefully, re-employment on different contracts."

In those circumstances the Tribunal found that there were sound business reasons for the decision.

11. On appeal, the final stage of the Tribunal's reasoning is criticised. The Tribunal decided that whether for redundancy or for some other substantial reason, the dismissal was fair. The Tribunal correctly addressed itself in terms to section 98(4) of the Act. It addressed itself according to the jurisprudence set out in Williams -v- Compare Maxam Limited [1982] ICR156, expressly considering:

" whether the respondent gave as much warning as possible, consulted reasonably with the applicant, selected fairly where that was appropriate and did its best to find alternative employment before dismissal."

The Tribunal, applying those criteria, found:

"There was warning of the possibility of redundancy over many months There were a number of meetings with the applicant .."

Selection is not relevant, but in any event, the Respondent went to great lengths to try to arrange alternative employment. The alternative employment was, it found:

"suitable and reasonable in all the circumstances"

12. Agreement was sought from the Applicant, but with varying degrees of response, and when agreement could not be reached, the Tribunal found that the Respondent acted reasonably in treating redundancy as a sufficient reason.
13. By making the necessary changes in language, those findings would apply to an alternative decision based on some other substantial reason. We see no error in that approach of the Tribunal and dismiss the appeal.