United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ADRIAN JACK (Of Counsel) Instructed by: Messrs Mark Gilbert Morse Solicitors Greys Building 53 Grey Street Newcastle Upon Tyne NE1 6EE


 


JUDGE PETER CLARK

1. This is an appeal by Mr Macé, the Applicant before the Newcastle upon Tyne Employment Tribunal, against that part of the Employment Tribunal's decision, promulgated with Extended Reasons on 1 January 2003 and corrected on 20 February, limiting his compensation for unfair dismissal to a basic award of £360, with no compensatory award. We are not concerned in this appeal with the Employment Tribunal's further finding upholding the Appellant's breach of contract claim.
2. The relevant facts, for the purposes of this appeal, are that the Appellant, who is French, commenced employment with the Respondent, whose business is the provision of customer services and telesales outsourcing, based in Newcastle, on 8 November 1999. As a French speaker he was employed to work on the Microsoft anti-piracy line. In Spring 2000 he passed an internal team leader's course and was promoted to that position on 8 May 2000. His annual salary was then increased to £15,000, including an allowance of £2000 to reflect his knowledge of a language other than English. He was assigned to the INTEL programme. By early 2001 he was suffering from stress, being off work from 9 January - 7 March 2001. During that absence he was interviewed twice at home by the Human Resources officer responsible for the INTEL programme, Ms McTavish, and that programme's operations manager, Ms Edgar. The former told him that he may not be able to return to the programme, but he made clear his wish to return when fit. No mention of redeployment was then made.
3. A report was commissioned from the Appellant's GP, Dr Wilkes, who responded on 13 February, stating that the Appellant was complaining of stress and anxiety-related illness. He concluded that he was indeed suffering from stress, anxiety and mild depression; was then unfit for work but should recover in between 1 and 3 months. He could then return to any type of work, but the doctor warned of the adverse effect of any unacceptable stresses placed on him at work or at home.
4. The Respondent's case was that this report left them with no option but to remove the Appellant from the INTEL programme because it was likely to place unacceptable stresses on him. The Employment Tribunal thought that was an overly pessimistic view of the doctor's report; unjustifiably the Employment Tribunal found, the Respondent treated the report, without reference back to either the doctor or the Appellant, as grounds for a transfer. That said, the Employment Tribunal were not satisfied that at that stage the Respondent had resolved to dismiss the Appellant. Genuine efforts were made to relocate him but no other suitable position was available, save for a temporary assignment to a recruitment project in France for which a French-speaker was required.
5. The Appellant returned to work, expecting to return to his previous duties. Instead he was assigned to the temporary role whilst a permanent alternative position was sought.
6. When his first temporary assignment ended, in the absence of a permanent position, he transferred to a temporary posting on the SAP project in the same department, a post which he enjoyed, considering that it would place him ideally for a permanent position. That view, the Employment Tribunal found, was overoptimistic. It influenced his disinterest in permanent vacancies brought to his attention by the Respondent over the following 3 months, during which he moved from the temporary duties on the SAP project to translation duties. Those vacancies were open to both internal and external candidates. He was not, under the Respondent's policy, to receive preferred status. He was not prepared to return to tele-sales duties, which involved cold-calling and the loss of his foreign language allowance. He applied for some posts, but at interview his attitude was perceived as negative. The Employment Tribunal found his attitude to these alternative posts as palpably unenthusiastic.
7. Accordingly no permanent assignment was given to him. On 30 July 2001 he turned up 30 minutes late for an appointment with Ms Stockell, the Human Resources manager and Ms Austin, a senior operations manager. He was then given 1 month's oral notice of termination of employment. Further meetings followed. He was told the reason for dismissal with his sickness/capability. His employment ended on 24 August 2001. On 2 September the INTEL project came to an end and those employees then working on it who did not find alternative employment, notice having been given to him 90 days earlier, were dismissed by reason of redundancy. The Employment Tribunal found that had the Appellant been in that pool he would not have secured alternative employment in view of what actually happened and his employment would have ended by reason of redundancy on 2 September 2001 in any event.
8. On those facts the Employment Tribunal found:

(1) the reason for the Appellant's dismissal related to capability, a potentially fair reason

(2) dismissal for that reason was unfair. He should not have been removed from the INTEL programme following his period of sick absence

(3) However, had he returned to the INTEL programme he would have been dismissed by reason of redundancy on 2 September 2001, 9 days after his actual dismissal. Thus his compensatory award would have been limited to 9 days pay, but that period was subsumed in the award of damages for breach of contract. Accordingly compensation for unfair dismissal was limited to the basic award.

9. In this appeal Mr Jack seeks and we grant, permission to amend the Notice of Appeal to add 2 further grounds. Having done so he has helpfully reduced the points in the appeal to 2. First, he directs our attention to paragraph 9 of the Tribunal's Extended Reasons where they say this:

"We had some concerns in relation to the fact that it did not give the applicant preference in relation to several vacancies but required him to compete with colleagues and indeed external candidates. Having said that, in this day and age we were not prepared to find that that was an unreasonable position. The company did go to considerable length to locate and inform the applicant of various vacancies, to encourage him to make applications and to assist him in that regard."

10. We remind ourselves that our jurisdiction is limited to correcting errors of law. Mr Jack submits that the Tribunal fell into error as a matter of law by saying that the Respondent can overlook an existing employee for whom alternative employment has been sought even where an external candidate is more appropriate for the job. We prefer to approach this case, in the absence of authorities cited to us by Mr Jack in support of that proposition, from first principles. The question under section 98(4) of the Employment Rights Act 1996 is one of reasonableness and bound up within that question is whether the employer in these circumstances has taken reasonable steps to find alternative employment for the Applicant.
11. The Employment Tribunal set out in some detail the attempts to bring to the Appellant's attention internal vacancies and they make clear findings of fact that in relation to those vacancies, although the Appellant was called for interview, his total lack of enthusiasm made it quite clear that he was unsuitable for the post.
12. In these circumstances the fact that some of those posts may have been filled by external candidates seems to us to be nothing to the point. It would be otherwise if the Appellant had shown a real interest in an alternative post but that post had been given to an external candidate.
13. Accordingly we reject this basis for appeal which is encapsulated in the 2 further grounds added by way of amendment. As to the original grounds of appeal Mr Jack focuses on 1 point only. That is that at the time of his dismissal there was still translation work for the Applicant to perform. In these circumstances it is submitted that the Employment Tribunal could not properly find that the Appellant had suffered no loss for the purpose of the compensatory award where he could and should have been retained in employment to perform that work.
14. Again we step back and look at the overall picture. The Respondent's case below was that they had spent some 3 months hoping to redeploy the Appellant. Various jobs had been put before him. He had gone for interview but had shown marked lack of enthusiasm for the work.
15. In these circumstances it was a matter for judgment of the Employment Tribunal as to when a reasonable employer would say enough is enough and terminate the employment. Plainly this Employment Tribunal found that the employer had acted within the band of reasonable respondents in terminating the employment when they did and in these circumstances we must reject the second point in the appeal also.
16. It follows that this appeal fails and is dismissed at this preliminary hearing stage.