United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GILES RIDGEWAY (Representative) Employment Law Advisory Service Charles House Albert Street Eccles Manchester M30 0PW
For the Respondent	MR A COCKBURN (The Respondent in Person)


 


SUMMARY

Redundancy – Collective consultation and information

Contract of Employment – Notice and pay in lieu

The Employment Judge correctly upheld the Claimant's account of a meeting where "an offer" to lay off the employee on £19 pw constituted a dismissal. The contractual right to lay off did not arise once the dismissal had been decided.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case at the Employment Tribunal tested the distinction between dismissal and forced resignation on the one hand and true resignation on the other. I will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a judgment of Regional Employment Judge Lamb sitting alone at Stratford registered with reasons on 30 July 2007. The Claimant represents himself. The Respondent is represented by Mr Ridgeway, a non-practicing barrister appearing as an employee of a consultancy.
3. The Claimant claimed redundancy pay and notice. The Respondent contended that he resigned and is entitled to neither. The essential issue for the Employment Judge was to construe the employment contract and to determine the way in which the parties separated from each other. The Judge decided in favour of the Claimant's account and upheld his claim to redundancy and notice pay of £1,404.40. That constituted a redundancy payment of three weeks and notice pay of two weeks, he already having received one week's notice. The Respondent appeals against the judgment. Directions sending this case to a full hearing were given in chambers by HHJ Ansell.
4. The case came on before HHJ Birtles who noting that the claimant was unrepresented, advised him to seek representation and pointed him to the Free Representation Unit (FRU). He stood the case out. The Claimant did not take that advice. He has had a number of disturbances in his personal life and could not attend to the detail of applying for representation, having instead gone to solicitors rather than to FRU which he did last week only to be told that there was so little time FRU could not help. So two months later we are in the same position. Mr Ridgeway has come down from Manchester and Mr Cockburn is here again without representation and court time has been wasted.

The legislation

5. The legislation is not in dispute in this case. Section 95(1) of the Employment Rights Act 1996 determines that a claim may be brought for dismissal if it constitutes either actual dismissal or what is known judicially as constructive dismissal: an employee leaves in circumstances when he or she is entitled to do so by reason of the employer's conduct without giving notice, whether or not such notice is given.
6. The Employment Judge indicated the nature of the legal analysis that he was engaged in and cited a number of authorities.

The facts

7. The Respondent is in the business of trading wholesale to the licensed trade. The Claimant was employed as a driver's mate on 17 December 2003 until the end of March 2007. He was paid £277.00 for a 52 hour week which is £5.35 an hour. That was of particular importance in this judgment for the understanding of what was said and done at the second of two meetings.
8. The Claimant's contract was regulated by a clause which enabled the Respondent to effect short time working:

"35. Shortage of Work/Lay Offs If there is a shortage of work for whatever reason the Company will endeavour to maintain continuity of employment wherever possible by placing people on short time or laying them off without pay. In such circumstances as much advance notice as can reasonable be given, will be if, in the Company's opinion it becomes necessary to do so."

9. The possibility of layoff was broached at a meeting. The Employment Judge preferred the Claimant's account and gave reasons for so doing. Of the two meetings, the second was important and contained what the Employment Judge described as a dismissal. His conclusion, having considered from both sides their accounts of what was said and done in the context in which the discussion took place, came to this:

"13. Applying that law, my first conclusion is that there was in fact here an express dismissal. Judging the discussion that took place, this was not a case in which Mr Cockburn was in fact voluntarily leaving in the sense of resigning. That terminology was never used and he never intended to resign of his own free will so at to forfeit the benefits to which he would be entitled if he was dismissed. What he reasonably understood was that he was being dismissed and that this was in effect something done by Mr Dhillon because it would of assistance to him. Therefore, because he was dismissed and the reason for that dismissal was that there was a diminution in the need for employees to do the work of Mr Cockburn, that was a dismissal for redundancy and he is therefore entitled to a redundancy payment and he was also entitled to the additional period of notice for which he has not yet been paid."

10. That conclusion was in the light of the difficulty the Claimant would have in obtaining any public assistance if he resigned and was not dismissed. Generally speaking, a person is disqualified for a period of 26 weeks. The option which he was offered was to be paid, instead of £277.00 a week, £19.00. The Employment Judge said that in the circumstances what had happened to the Claimant was that he had been actually dismissed by reason of the "offer" made by the Respondent.
11. As an auxiliary finding, lest he were wrong on his first finding, the Employment Judge went on to construe clause 35, in circumstances which I need not deal with.

The Respondent's case

12. First, it was argued that the layoff clause was operative here and gave the Respondent the right to make a layoff or put on short time working and, therefore, the Claimant was not entitled to a redundancy payment.
13. Secondly, the Employment Judge had fallen into error by his description of the statutory procedure for invoking a right to redundancy payment following a layoff or placement on short time working. This is the regime set out in section 147 of the Employment Rights Act 1996.
14. Thirdly, the Employment Judge wrongly substituted his view for what occurred at the meetings for that of the Respondent for there was an agreed position that the Claimant resigned and the Employment Judge should not have gone behind that.
15. Fourthly, the decision was perverse on these findings. A reasonable Employment Judge could not have come to the conclusion which he did.
16. Fifthly, the Employment Judge wrongly applied A Dakri & Co Ltd v Tiffen & Others [1981] IRLR 57 and Kenneth MacRae & Co Ltd v Dawson [1984] IRLR 5 or alternatively inaptly invoked them in this case as authority.
17. Finally, the Employment Judge wrongly paid attention on emotive and not legal grounds to the Claimant's personal circumstances.

Discussion and conclusions

18. I uphold the primary finding of the Employment Judge and did not find it necessary to ask Mr Cockburn to add anything to the reasons given by the Judge.
19. The first thing to note is that this case is not about lay off and short-time working. The primary finding by the Employment Judge as to there being a dismissal was one which was open to him. It was he who had to decide what happened at the meeting, what was said by the parties, what was the reasonable impression given to Mr Cockburn as a result of what was said. His conclusion, having found the facts of what occurred and upheld Mr Cockburn's account, was that this constituted a dismissal. That was for the Judge to find and I see no error. It certainly was not perverse for him to have found that there was an actual dismissal.
20. The utility of clause 35, it seems to me, falls away. Once it is decided that there was an actual dismissal, whatever right there was in the employer to invoke clause 35 disappeared as Mr Ridgeway accepted before me. A redundancy payment can be achieved if there is a dismissal or if the exacting regime in Employment Rights Act section 147 is complied with having been triggered by the Claimant. But since it is common ground that he never did that, the discussion about lay off is strictly irrelevant once the finding has been made that there was an actual dismissal.
21. I acquit this experienced Regional Employment Judge of being emotive in his approach rather than legal. With his great understanding of working practices in the east of London he was entitled with this litigant in person and the represented employer to pay specific attention to the circumstances in which the Claimant came to have the meeting with the employer, Mr Dillon. He was also entitled to take into account what the consequences were of either of the options. That is the purpose of a specialist jurisdiction such as this, rooted firmly in the community. It was an entirely proper approach to the case.
22. In the circumstances, it is not necessary for me to pass any view about the Employment Judge's opinion contained in paragraph 14 on the employment contract. It was not necessary for his decision to do so and so I will simply be adding hypothesis upon hypothesis were I to be engaged in that exercise.
23. Mr Ridgeway is to arrange for payment to be paid to Mr Cockburn within 14 days' time. I would like to thank Mr Ridgeway for coming today to argue the point. This appeal is dismissed