United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S BRITTENDEN (of Counsel) Instructed by: Messrs Farrer & Co Solicitors 66, Lincoln's Inn Fields London WC2A 3LH
For the Respondent	MR M DURRANT (The Respondent in Person)


 


SUMMARY

UNFAIR DISMISSAL

Reason for dismissal including some other substantial reason

The correct interpretation of section 106 of Employment Rights Act 1996 ("the Act") was considered.

The condition set by section 106(2)(a) of the Act will not be met unless there is clear and unambiguous language used in the written information given to the employee on engagement. Where, as here, the letter is ambiguous, section 106 will not be engaged; decision of the Employment Tribunal upheld.

The condition set by section 106(2)(b) of the Act involves the Employment Tribunal in making a finding of fact as to the reason for dismissal. Where, as here, there is evidence to support that finding, no error of law will arise; decision of the Employment Tribunal upheld.

REDUNDANCY

Definition

Although the Employment Tribunal had directed itself as to Murray v Foyle Meats Ltd [1999] IRLR 562 and the case of Safeway Stores Plc v Burrell [1997] ICR 523, it had fallen into the error of confusing the requirements of the business with the difficulty of finding alternative employment for the employee. Appeal allowed and remitted to the same Employment Tribunal to re-consider the reason for dismissal.

HIS HONOUR JUDGE HAND QC

Introduction

1. This is an appeal from the Judgment of an Employment Tribunal comprising a Judge and two lay members sitting at London Central Employment Tribunal over 10 days in March 2009 and with a further day in Chambers in April 2009. The Judgment (including the reasons) was sent to the parties and entered in the register on 30 June 2009. The Employment Tribunal found that the Respondent, the Claimant below, who we will refer to as Mr Durrant, had been dismissed by the Appellant, the Victoria and Albert Museum, which we will refer to as the V & A, by reason of redundancy but that his dismissal was not unfair. We are now only concerned with the V & A's appeal against that decision, Mr Durrant's cross appeal having been dismissed in November 2009.
2. Mr Durrant worked at the V & A from 1988 until his dismissal in April 2008. He had been working, in effect, on secondment, on his civil service terms and conditions in the Administrative Officer grade, as a Picture Library Assistant on work, which the V & A had contracted out of the public sector. Consequently, although he remained a public servant he was managed by the management structure of a company, V & A Enterprises Ltd^[1], to whom the V & A had contracted out the work.
3. He had become ill in May 2005 and when fit to return in January 2006, after a prolonged absence, he was not able to return to his previous post. The work he had been doing was being carried out by a replacement, employed by V & A Enterprises Ltd, there was no other work available to him in the area of work now under the control of that company and his illness originated in difficulties that had arisen between him and his managers and as a result of the advice of the Occupational Health department he did not go back. Between 2006 and 2008 he worked elsewhere in the museum in temporary positions, the last of which was on a short fixed term contract as a replacement for a permanent post holder, who was on maternity leave. No other work was available for him and when that contract expired (and the post holder returned to work after her maternity leave ended) Mr Durrant's dismissal, which had been decided upon in 2007 under the incapacity procedure, was brought into effect.

The Issues

4. Mr Durrant contended that he had been dismissed by reason of redundancy. If he had, then he would be entitled to a payment pursuant to civil service terms and conditions. He also contended that he had been unfairly dismissed. The V & A contended that he had not been dismissed by reason of redundancy because, by the application of section 106 of the Employment Rights Act 1996 ("the Act"), the reason for dismissal must be deemed to be some other substantial reason and not redundancy. Alternatively, redundancy was not the reason for dismissal; in the circumstances the definition of redundancy in section 139 of the Act could have no application. In any event, the reason advanced by the V & A for dismissal, capability, which had been the basis of the decision to dismiss in 2007, was still the operative reason for dismissal taking effect in 2008. If it was not, then the dismissal was for some other substantial reason.
5. So the issues are:

i. Were the circumstances of the dismissal such as to attract the provisions of section 106?

ii. If not, was it by reason of capability?

iii. If not, was the dismissal by reason of redundancy or for some other substantial reason?

The Facts

6. What follows is a summary of paragraphs 6 to 59 of the judgment. Before Mr Durrant was certified as fit to return to work in January 2006, there were meetings between him, his trade union representative and the V & A Human Resources management team in September 2005 and between those parties and, in addition, a senior manager from the company, in November 2005. Possible redeployment opportunities were forwarded to Mr Durrant but, at the same time (i.e. the end of 2005) he was told that further meetings would be under the auspices of what has been referred to as "the capability procedure" and the first such meeting was held on 20 December 2005. At that meeting temporary redeployment was raised by the V & A management, although Mr Durrant expressed his preference for a permanent post.
7. On 9 February 2006 management presented what the trade union representative described to the Employment Tribunal (as recorded at paragraph 15 of the judgment at page 8 of the bundle) as an "ultimatum". This was that if an alternative post had not been found by April 2006 then "hard choices would have to be made"; the Employment Tribunal interpreted this as giving rise to the inference that Mr Durrant would be dismissed. The Employment Tribunal found that this "decision … to set an April deadline … was a significant change in stance … which must have been consciously decided upon in advance."
8. On 27 February 2006 Mr Durrant was back at work in a temporary post. In the meantime, he appears to have been considered, along with 190 others, for the post of Assistant Curator at the Museum of Childhood in Bethnal Green. The Employment Tribunal concluded that he "had no great chance of being selected for interview" (see paragraph 21of the judgment) and, although he was known to be a "priority candidate", the employment tribunal doubted that he had been accorded any real priority (see paragraph 20 of the judgment) and he was not shortlisted. During the first half of 2006 he raised a grievance about the way he had been treated in the Picture Library but the result was unsatisfactory and, in the meantime, the redeployment procedure seems to have come to a halt. Then, in November 2006, there was a redeployment meeting at which Mr Durrant was told that the temporary post was coming to an end and that he had a very limited time to find another job. If he did not, then he would face "a capability board". By 23 November 2006 the time limited for finding another post was set to expire on 8 January 2007 (see paragraph 28 of the judgment).
9. Mr Durrant failed to make the shortlist for a job as Exhibitions Assistant in December 2006. There were 200 applicants and he was not accorded any priority. He was, however, shortlisted for the job of Administration Manager in Visitor Services but before he could be interviewed he was dismissed on thirteen weeks notice with effect from 19 January 2007 as a result of a meeting of the "capability board". The letter of dismissal acknowledged that Mr Durrant had been fit for work since January 2006 but noted that he could not return to work in the Picture Library. He was unsuccessful at interview for the Administration Manager's job. The Employment Tribunal concluded that the interviewing panel did not know that he was a priority candidate (see paragraph 22 of the judgment).
10. On appeal, the V & A varied the decision to dismiss by extending notice of termination to a period of 6 months expiring on 19 October 2007. But the appeal committee upheld the decision to use the capability procedure "because the Claimant could not return to his substantive post in the Picture Library" (see paragraph 34 of the judgment). The appeal committee did not think that it was faced with a case of redundancy and it decided that "Our obligation is not to create a role for you" (see paragraph 35 of the judgment).
11. After the appeal Mr Durrant was offered the post of an Administrator in the Word and Image Department on a 6 month fixed term contract expiring on 19 October 2007. He was covering somebody on maternity leave but in the meantime was free to express interest in any band 6 roles that became vacant. The V & A took the view that by accepting that post Mr Durrant ceased to be a permanent employee and could only revert to that status if he found a permanent post. He disagreed and sought to express a reservation about any change of status by amending the caption in the letter of acceptance from:

"I am content to vary my contract in the manner described above."

to:

"I note the variation to my contract in the manner described above, without prejudice to my objection to the decision to dismiss me."

(see paragraphs 37 and 38 of the judgment)

12. In the event the post holder extended her maternity leave and, in turn, on 6 October 2007 Mr Durrant was offered a further 6 month fixed term contract to expire on 18 April 2008. A letter to him from the V& A Human Resources department gave the reason for the further contract as being "to provide cover whilst the current post holder is on maternity leave." The letter goes on to say (see paragraph 39 of the judgment) that if Mr Durrant had not got a permanent post by 18 April 2008 the contract would not be renewed and that:

" … would lead to the termination of your employment with the Museum. In these circumstances, the reason for the cessation of your employment will be due to the end of a fixed term contract."

13. Mr Durrant applied for a variety of other posts between April 2007 and 2008. He was not successful in relation to any of them. At a meeting on 1 April 2008 Mr Durrant articulated his disagreement with the proposition that his employment was about to end by the expiration of the fixed term contract. His view was that if he were dismissed that would end nearly 20 years of continuous service under the terms and conditions that he had always worked under; it would not be the result of the ending of a temporary fixed term contract but of the postponed decision to dismiss. In the event his employment ended on 18 April 2008.
14. Mr Durrant appealed against his dismissal. His appeal was unsuccessful. The V & A position then was the same as it has been during the hearing of this appeal. Mr Durrant could not work in the Picture Library because of his health. Attempts had been made to find him alternative work but the only work found had been temporary and that had come to an end.

The Judgment

15. The Employment Tribunal rejected the V & A's section 106 argument. At paragraph 64 of the judgment the Employment Tribunal say this:

"A few days later, on 13 April 2007, the Claimant was given a six month fixed term contract to cover maternity leave. The way the Respondent dealt with this was to create a six month fixed term contract which was stated to run concurrently with the existing period of notice to which the Claimant was subject. It is the Respondent's case at this point that the Claimant's contractual status changed. This was disputed at the time (page 473) because the Claimant maintained that his status remained that of a permanent member of staff and he referred to his period of notice having been extended. We observe that the letter sent by Miss Parsons did not inform the Claimant that his employment would be terminated on the resumption of work by the absent employee on maternity leave. In other factual circumstances, this might have been obvious to the parties, but in this particular case it could not have been. The reason is that the Claimant had been given notice initially because he had not obtained a suitable post; and that notice had been extended specifically, as noted on page 471 by Miss Parsons "in order to facilitate your search for a permanent role." Section 106 is therefore inapplicable to this situation."

This is not, perhaps, the easiest of passages to understand. We take the Employment Tribunal to mean that section 106 could not apply at that stage because section 106(2)(a) had not been complied with either on a narrow or more generous interpretation of the subsection. There was no compliance in a strict sense because on the facts, although the letter of 13 April 2007 (see page 113 of the bundle) said:

"The reason for this 6 month fixed term contract is to cover a period of maternity leave.

Further to your recent appeal hearing I wish to remind you that this 6 months maternity cover runs concurrently with your notice period that expires on 19 October 2007. This extension to your notice was agreed to in order to facilitate your search for a permanent role."

The "observation" in paragraph 64 is that the letter does not inform Mr Durrant in writing that his employment would be terminated on the resumption of work by another employee absent for maternity reasons.

16. There was no compliance in a broader sense because, although "maternity leave" and "maternity cover" were mentioned, the circumstances were ambiguous; Mr Durrant was on notice because he had failed to find other work and the notice was said to be extended to "facilitate" a further search for other work. So even looking at the broader context there was no link between termination of his contract and the return of the absentee from maternity leave. In other words, the letter did not comply with section 106(2)(b).
17. So far as the further 6 month contract was concerned the Employment Tribunal quote from it selectively at paragraph 66 of the judgment but in order to understand what was said

about it by the Employment Tribunal, it is preferable to set it out in full:

"Dear Martin,

Following your recent conversation with Ruth Hibbard (Loans and Touring Exhibitions Officer), in which you were offered an extension to your fixed term appointment to the post of Administrator (Finance, Loans and Conservation), I thought it would be helpful to write to you to clarify the change to your contractual status.

Permanent to fixed term status

As you are aware, the reason for this fixed term contract, which will expire on 18 April 2008, is to provide cover whilst the current post holder is on maternity leave. Your appointment will not extend beyond this period unless you have been expressly informed otherwise in writing by an HR Manager.

Following your appeal hearing, your notice of dismissal on grounds of capability was extended until 19 October 2007. This extension was agreed to facilitate your search for a permanent role, in respect of which it was confirmed that you would have the status of a potential priority candidate. I note that you have not secured a permanent role within this period. Should you not be successful in securing a permanent or alternative role over the duration of this fixed term appointment, your contract of employment will not be renewed, which would lead to the termination of your employment with the Museum. In these circumstances, the reason for the cessation of your employment will be due to the end of a fixed term contract.

Redeployment/your status as a priority candidate

We would take this opportunity to reaffirm our organizational commitment (in line with our legal obligation) to try and help you find alternative employment to avoid your dismissal on the expiry of the fixed-term contract. For administrative purposes, three months prior to the end of this fixed term contract, i.e. 19 January 2008, your status as a potential priority candidate for redeployment will recommence, and you must contact the HR department to express an interest in any permanent Band 6 roles in order that an assessment of your suitability as a priority candidate can be assessed. For the avoidance of doubt you will not have this status between 19 October 2007 and 18 January 2008.

All other terms and conditions remain unchanged.

To confirm your acceptance of this fixed-term contract, please sign the enclosed copy of this letter and return it to Kerri Baker, the Human Resources Officer for your department."

18. The Employment Tribunal regarded this letter as "not particularly easy to construe" (see paragraph 65 page 22) but analysed it in these terms (see paragraph 66):-

"It seems to us that this is an express statement that the ground for dismissal which is envisaged would be the Claimant failing to secure permanent or alternative employment with the Respondent. We consider the Respondent has failed to inform the Claimant in writing at this point that his employment will be terminated on the resumption of work by another employee in accordance with section 106(2)."

and reached the following conclusion at paragraph 68, namely:

"Our conclusion is that, in order to understand the intention of the parties at this point, one has to have regard to the earlier history. The only conclusion to which we can come is that the Claimant's employment after 18 April would be inextricably linked to the success of his job search. It may well be that the return of the post-holder from maternity leave was the trigger for his dismissal, but to say that he was dismissed for this reason is in our view unrealistic and far from the industrial reality. The Claimant was dismissed, from "the Museum" (to use Miss Hibbard's words) because he had not secured any other employment for himself there. We therefore conclude that he was not dismissed in order to make it possible to give work to the employee who was returning from maternity leave. That was possible without his dismissal, in that he could simply have been moved or dealt with in one of a number of different ways. He was dismissed because, so far as the Respondent was concerned, the time for looking for alternative work had run out. That was the operative reason for his dismissal and it is the second ground for saying that section 106 is inapplicable. The dismissal letter at page 668 expressly refers to the Claimant's employment with "the Museum" being terminated because "it has not been possible to identify alternative work for you to undertake, on either a temporary or a permanent basis.""

19. The Employment Tribunal felt that it had to test the conclusions by asking (see paragraph 69):

"…whether, in the case of a replacement employee coming for the first time from outside to cover an employee on maternity leave, it could ever be argued that there was a redundancy situation in terms of section 139 on the return of that employee from that leave. Clearly if section 106 had been complied with, then the redundancy situation could not be the reason for dismissal. However, if there were some failure to comply with section 106, we are still far from sure that this would be a redundancy situation. The reason is that the requirements of the business for employees to carry out work comprising the maternity cover had neither ceased nor diminished. In such a hypothetical case we cautiously suggest that some other substantial reason may well be the reason for dismissal."

20. The argument is developed through paragraphs 70 to 73:

"70. The distinction with Mr Durrant's case is that he had been employed for many years and had been actively seeking to obtain replacement employment by way of redeployment within the Museum. We say "the Museum" because this was also a term used by the Respondent at the conclusion of his employment. It was well understood by the parties, we conclude, that the reason why the Claimant was leaving was because there was no other work in any department him to do. Yet, he had been employed by the Museum in various posts, including the position in the picture library. It is an agreed fact in this case that by the effective date of termination the position in the picture library had been filled. Leaving aside the fact that the Claimant could not return to the picture library and the Respondent was not prepared to countenance this, he could not do so.

71. Mr Brittenden submits that if section 106 is found to be inapplicable, the dismissal was for capability grounds because the Claimant was unable to return to the picture library on the basis of capability. He submits that this is the operative reason why the Claimant could not return to the picture library post. He further relies upon section 98(3) which defines capability in terms that would include health.

72. It is not entirely irrelevant that in the letter of dismissal there is no reference to this ground as a reason for dismissal. But the wider industrial reality is that it would have been a somewhat bizarre departure for the Respondent to have resurrected this in April 2008. The parties well understood that the Claimant had been unable to return to the picture library since early 2006, or even somewhat earlier. It would have been irrational to have dredged up such ancient history in order to justify his dismissal at this point. We conclude that this was not in the mind of the employer and that this set of beliefs in the corporate mind predominantly revolved around inability to identify alternative work for the Claimant to undertake, to use the words set out in the letter of dismissal. We do not consider that we can accept the submission that the operative or effective reason for dismissal was capability. To do so would be to ignore the lengthy chronology we have set out above."

21. With respect to the Employment Tribunal not all of this is easily digestible but we think it can be summarised in the following way. The Employment Tribunal concluded that section 106 did not apply for two allied reasons. Firstly, as a matter of construction, the terms of the letters do not comply with the statutory requirements of section 106. Secondly, in rather broader terms, the specific history of the employment of Mr Durrant on temporary contracts was not what section 106 envisaged. He was not a temporary employee engaged as a stopgap measure because of maternity leave. He was a permanent employee moved into whatever temporary post was available and suitable; it just so happened that the last temporary posting was to cover for someone absent on maternity leave but the reason for his dismissal was because there was no alternative work for him to do and not because of the return of the post holder from maternity leave. Although, in some circumstances, where section 106 does not apply, it may be the case that the reason for dismissal would be some other substantial reason but that was not the situation here. Nor was the reason for dismissal capability. Mr Durrant's period of incapability had ended in 2006; since then he had been perfectly capable, save in respect of the particular and peculiar situation in the picture library. The Employment Tribunal concluded that capability was not the operative reason for his dismissal in April 2008.
22. The Employment Tribunal identified the next stage of the analysis as being to decide whether the reason for dismissal was redundancy or some other substantial reason. The argument that there could be no redundancy situation because Mr Durrant's position in the picture library had been filled by somebody else was rejected by the Employment Tribunal. In doing so the Tribunal considered the judgement of Lord Irvine in Murray v Foyle Meats Ltd [1999] IRLR 562 and the case of Safeway Stores Plc v Burrell [1997] ICR 523 referred to by Lord Irvine in Murray. Having quoted part of the judgement of the division of the Employment Appeal Tribunal presided over by HHJ Clark in Burrell the Employment Tribunal says this at paragraph 75 of the judgment (page 28 of the bundle):

"We note in passing the reference to "underlying causes" in the above citation. In our view Mr Durrant's case is indeed one where there was a prime underlying cause. It was not the inability of the Claimant to return to the picture library. The underlying cause of his dismissal was that he had been unable to find alternative employment as the Respondent had no suitable job available for him. The reason he was dismissed was that there was nothing that could be offered to him. The requirements of the employer's business for employees to carry out work of a particular kind had ceased. The Claimant was surplus to requirement because his original post had been replaced in circumstances where the parties agreed he could not return; and because all other available options had run out. First, he had not obtained any further employment. Second, his temporary redeployment had come to an end, even after the various extensions. If capability has nothing to do with the issue, because there was never any consideration of his returning to the picture library at the end of his employment, we find it difficult to avoid the conclusion that the Claimant was redundant. This view is, we would suggest, supported by the conclusion of the Employment Appeal Tribunal in the Safeway case. It was stated that the original tribunal had fallen into error in three respects and the first is as follows:

"The majority failed to apply the correct statutory test in finding that the applicant's dismissal was not by reason of redundancy. It failed to ask itself whether there was a stage 2 redundancy situation, looking at the overall requirement of the employer for employees to carry out work of a particular kind and then to consider whether that redundancy situation caused the applicant's admitted dismissal."

Here, the requirement of the Respondent for somebody in the picture library to perform the functions that the Claimant had some years ago been performing is, to our mind, besides the point. The overall requirement of the employer for employees to carry out work of a particular kind, which in the Claimant's case was broadly administrative, had diminished. They had been unable to place him in any other post, or had not done so, and he had been unsuccessful in securing any appointment. For a variety of posts for which the Claimant applied he failed to meet certain specified criteria. This reflects the situation at the termination of employment which is that the overall requirement of the employer for employees to carry out work of (sic) particular kind had ceased or diminished. Therefore, on our analysis the Claimant was truly redundant, even though that redundancy arose from circumstances which in industrial terms were unusual."

Submissions

23. Mr Brittenden submitted that the Employment Tribunal had fallen into error when it concluded that the case did not fall under the provisions of section 106 of the Employment Rights Act 1996. As a matter of construction the letters of 13 April 2007 and 10 October 2007 referred to either the inception of the six month fixed term contract or the extension of that six month fixed term contract, the object of both of which was to cover for somebody absent on maternity leave. This was clear on the face of the documents. The statute did not require the employer to say explicitly that the employment would be terminated upon the resumption of work by an employee, who had been absent on maternity leave, and the Employment Tribunal were placing an unwarranted gloss on the statutory rubric. The letters made it clear that the employment was for a fixed term with the purpose of covering for the absent post-holder, who was on maternity leave and that was enough to engage section 106.
24. He also criticised the Employment Tribunal's analysis as to the reason for dismissal. In particular, he criticised the reasoning in paragraph 68 of the Employment Tribunal's decision as muddled and confused. What the Employment Tribunal had failed to recognise was that the employment of Mr Durrant ended because his colleague returned from maternity leave. Mr Brittenden expresses this as the "operative" reason for the dismissal. Thus, looking at the matter more broadly than simply concentrating on the construction of the letters, the "operative" reason for the dismissal brought the case firmly within the ambit of section 106.
25. He made a similar criticism of the Employment Tribunal's reasoning in relation to capability as an alternative reason for dismissal. If, as the authorities demonstrate, the reason for dismissal is a synthesis of the facts known to the employer or the beliefs held by the employer, which caused the employer to dismiss (see Abernethy v Mott, Hay and Anderson [1974] IRLR 213), then the Employment Tribunal's analysis was unsustainable. The Employment Tribunal accepted that Mr Durrant could not return to the picture library and that it had been recommended by the occupational health department that he be redeployed on "health grounds". No alternative employment of a permanent kind had been found by the time Mr Durrant's colleague returned from maternity leave in April 2008. Whilst the Employment Tribunal appear to acknowledge that state of affairs, in reality the decision was little more than an attempt to ignore the obvious, namely that it was the inability of Mr Durrant to resume his duties in the picture library that led, step-by-step, to his dismissal in April 2008. What the Employment Tribunal neglects, submitted Mr Brittenden, is that the dismissal process had started in 2006, had moved through the capability board procedure and, in January 2007, had resulted in a dismissal on capability grounds. All that had really happened subsequently was the dismissal had been postponed. So the "operative" reason for his dismissal was that he was no longer able to work in the picture library. Put another way, that lack of capacity or capability was the real reason for his dismissal. This is what the Employment Tribunal should have found.
26. Mr Brittenden's most trenchant criticism of the Employment Tribunal's judgement was, however, reserved for its conclusion that the reason for the dismissal had been redundancy. He submitted that the Employment Tribunal, whilst purporting to follow the seminal authorities had, in fact, misunderstood and misapplied them. The concept of an "underlying cause", which the Employment Tribunal had extracted from a passage in the judgment of the Employment Appeal Tribunal in the case of Burrell, was not, as the Employment Tribunal supposed, helpful to the analysis that redundancy was the reason for dismissal. Plainly, the "underlying cause" of the dismissal was the lack of capability Mr Durrant. Had the Employment Tribunal properly analysed section 139(1)(b) of the Act it would have asked what work of a particular kind was involved, what were the requirements of the V & A for the carrying out of that work and whether or not those requirements had ceased or diminished. The characterisation of the Claimant's duties as "broadly administrative" was questionable on the evidence available. Moreover, the attempt by the Employment Tribunal to circumnavigate the fundamental issue in the case, which was that the requirements of the V & A to carry out work of a particular kind in the picture library had not ceased or diminished, as illustrated by the fact that Mr Durrant had been re-placed, by remarking that this was "besides the point", illustrated the extent to which the Employment Tribunal had failed to grasp of fundamental concepts involved in the case.
27. As to disposal, Mr Brittenden submitted that the position adopted by the Employment Tribunal was so clearly wrong that this Tribunal, armed with all the necessary material, which can be found in the decision and the documents, should substitute a finding that the dismissal was some for other substantial reason or for capability.
28. Mr Durrant had submitted a five page skeleton argument in advance of the hearing and at the hearing he submitted thirty five pages of written submission, which he asked us to accept in lieu of oral submissions, he being unused to oral presentation of the kind usually involved in an appeal to this Tribunal. We were happy to do so.
29. He begins his submissions in the period described by the Employment Tribunal at paragraph 4 of the judgment in these terms:

"The Claimant worked with the Respondent from 9 May 1988 until his termination on 18 April 2008. This is a period of almost 20 years although he was entitled to carry forward some previous three years or thereabouts of employment with English Heritage. The Claimant is a History Graduate who was initially employed as an administrative officer. In July 1992 the Claimant was transferred to work in the Picture Library. On 6 April 1999 the Respondent and/or VAE Enterprises Ltd offered him the position of Picture Library Assistant. We have avoided exploring in any detail the relationship between the Respondent to the Limited Company which we understand to be a trading arm. It certainly appears to be the case that the Company took over the management of the Picture Library on an agency basis in 1999. The company's terms and conditions were on offer to the Claimant but the letter at page 129 stated that:

"alternatively, you can remain on your current museum terms and conditions and be seconded to the VAE."

It appears to us that potentially there was a transfer of undertaking situation here. Nevertheless, the Claimant chose to be employed on the basis that he was seconded to the Company and the parties are in no dispute whatsoever that he at all times remained an employee of the Museum. This led to certain later difficulties, because at most there was only one other employee in the Picture Library who had opted to remain on Museum terms and conditions."

30. Mr Durrant supplemented this in his submissions by pointing out that his original appointment had been at a generic grade of established administrative officer subject to a mobility clause. He referred both to his letter of appointment of 10 May 1988, which had been part of the documentation presented to the Employment Tribunal and also to the terms and conditions relating to mobility, which similarly had been before the Tribunal. It was as a result of the mobility clause in his terms and conditions of employment that he had been transferred to the Picture Library in 1992 from a previous administrative role in the Buildings and Estate Department. When offered employment with V & A Enterprises Ltd in 1999 he had declined and remained working in the Picture Library, in effect, on secondment from the Respondent.
31. It was common ground that after he became ill and did not, or could not, return to the Picture Library, somebody took his place. But it must be remembered that person was an employee of V & A Enterprises Ltd, working under its terms and conditions and was not, like Mr Durrant, a public servant employed on civil service terms and conditions. Moreover, Mr Durrant submitted, we should not lose sight of the economic and financial climate that had prevailed in the Museum since he had returned to work. His appointment to the Photographic Services temporary post, which Mr Durrant occupied from February to November 2006, had been to clear a backlog of work. It was a supernumerary post; there had been a previous incumbent but after he left nobody else had been recruited because the post had been frozen. Consequently work backed up. There were inadequate financial resources to fund a permanent post but there was still work to be done. The temporary post ended because there was no money to continue to fund it. This was the situation throughout the Museum and was part of his difficulty in obtaining another permanent post.
32. Against that background he made submissions as to the reason for dismissal. Logically, he divided these between section 106 of the Act, capability and redundancy.
33. His submissions as to section 106 of the Act focused factually on the nature of his employment. He had not just been recruited to provide maternity cover. He was an employee of long-standing as opposed to a temporary recruit. He pointed out that after his dismissal in January 2007 the alternative posts to which he had been appointed were coincident with the notice period or the extension of the notice period. The letters accompanying those appointments related any subsequent dismissal to failure to obtain a full time post not to the return of the incumbent from maternity leave. Moreover those letters were not written in language, which complied with the statutory requirements of section 106 and, in any event, he had qualified his acceptance of the posts. They should be viewed in the context of the grievance procedure, which had resulted in an extension of his notice. His situation in 2006 had been completely unconnected to his colleague's pregnancy or her maternity leave, neither of which had arisen at the time of his appointment to the supernumerary temporary post in Photographic Services.
34. It is clear that Mr Durrant has come to the view that the Museum used the two periods of cover for the colleague absent on maternity leave as a way of manoeuvring Mr Durrant into a position where no redundancy payment would have to be made by the Museum. In his submission the Museum's reliance on section 106 of the Act represented an artificial construct used to mask the redundancy reason for dismissal and avoid liability to make a redundancy payment under the terms of the Principal Civil Service Compensation Scheme. He submitted that section 106 had not been enacted for such purposes and that the Employment Tribunal were factually and legally correct to have rejected its application in the context of his case.
35. As for capability, he emphasised that he had been at work for 26 months at the time of his dismissal. In terms of his health, he had been acknowledged to be well and able to work in January 2007 at the time that he was dismissed. Had the dismissal been carried into effect at that time it would have been obvious that he was being dismissed because the requirements of the business for the temporary work of the kind he had been carrying had ceased or diminished. Throughout the period he was seeking redeployment; for a variety of reasons he was unsuccessful. It was clear that his dismissal in 2008 was not because he was incapable of work but because he could not be redeployed, given the existing circumstances. This is what the Employment Tribunal had found at paragraph 72 of the judgement and that was the correct analysis.
36. He then turned to the question of redundancy. He reiterated the terms of his initial appointment, which remained in force. His work had always been broadly administrative and he had been engaged in a broadly administrative grade. His post in the Picture Library, to which he had effectively been seconded in 2003, if not before, when the work of the Picture Library had been completely outsourced by the Museum to V & A Enterprises Ltd, had been filled when he was absent through illness. But it should be noted that it had not been filled by another public servant on an administrative grade employed by the Museum and working on civil service terms of conditions but by an employee of V & A Enterprise Ltd working under a contract of service with that company on that company's terms and conditions of employment. Therefore, he submitted, the need of the Museum for employees to carry out administrative work in the Picture Library had ceased or diminished in 2005, if not before, and, as had been proved by the search for redeployment in another post between 2006 in 2008, had ceased or diminished in the Museum generally. Given that section 163(2) of the Act created a rebuttable presumption of redundancy, where there had been a dismissal, as was the case here, the Employment Tribunal had been entitled to reach the conclusion that his dismissal had been by reason of redundancy and no error of law arose from that conclusion.

Discussion and Conclusions

37. The first issue identified at paragraph 5 above is whether section 106 of the Employment Rights Act 1996 is engaged. So we turn first to the relevant parts^[2] section 106 of the Employment Rights Act 1996

"(1) Where this section applies to an employee he shall be regarded for the purposes of section 98(1)(b) as having been dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) This section applies to an employee where --

(a) on engaging him the employer informs him in writing that his employment will be terminated on the resumption of work by another employee who is, or will be, absent wholly or partly because of pregnancy or childbirth … and

(b) the employer dismisses him in order to make it possible to give work to the other employee …

(4) Subsection (1) does not affect the operation of section 98(4) in a case to which this section applies."

38. Provided the two cumulative conditions set out in section 106(2) are met, section 106(1) has effect. The approach of the Employment Tribunal in paragraphs 64 to 72 straddles both limbs of section 106(2) and spills over into the issue of the reason for dismissal and consequently covers a lot of ground. This makes it harder to separate out the components of section 106 but we think what follows is the correct analysis of this part of the decision.
39. The Employment Tribunal took the view that the letters of 13 April 2007 and 10 October 2007 could not be construed in a way that complied with those conditions firstly because on "engagement" Mr Durrant was not informed in writing that "his employment will be terminated on the resumption of work" of "another employee … absent … because of pregnancy or childbirth". The first letter is discussed by the Employment Tribunal at paragraph 64 (see paragraph 15 of this judgment). The second letter is quoted in full at paragraph 17 above and paragraph 66 of the Employment Tribunal judgment is set out at paragraph 18 above. The Employment Tribunal concluded that, on a textual construction, neither letter amounted to information in writing that complied with the requirements of section 106(2)(a).
40. Secondly, as discussed at paragraph 16 above in the context of the first letter and at paragraphs 18 to 22 above, which discuss paragraphs 68 to 75 of the judgment, looking at the matter more broadly against its particular factual matrix neither of the letters (taken separately or considered cumulatively) complied with the requirements of section 106(2)(a) because the reality was that Mr Durrant was to be, and ultimately was, dismissed not because of the return of the colleague from maternity leave but because at the expiration of periods set by the fixed term contracts he had not been appointed to a permanent post in the Museum.
41. On both points there was an acceptance by the Employment Tribunal of the submissions of Mr Durrant and a concomitant rejection of those of Mr Brittenden. He renewed these submissions before us. We also reject them and do so for two reasons.
42. Firstly, our own textual construction of the letters accords with that of the Employment Tribunal so far as section 106(2)(a) is concerned. Neither letter made an unequivocal statement as to future termination that fulfilled the requirements of the subsection. The argument addressed to the Employment Tribunal (and to us) was that a combination of the factual matrix and the rubric of the letters would have left no room for misunderstanding. The non renewal of the second fixed term contract was timed to coincide with the return from maternity leave of the permanent post holder, Mr Durrant knew that to be the case and the non renewal of the contract enabled her to return to work. We do not accept that such a coincidence of text and factual matrix can satisfy the requirements of section 106(2)(a). In our judgment the subsection envisages a clear notice being given at the outset, so as to leave no doubt on the part of the employee as to the circumstances in which the contract will end. If the language of the written information does not convey the simple message required by the subsection, we cannot see anything in the statute to suggest that the information can be conveyed by a combination of the text of the written document as supplemented by inferences drawn from the surrounding circumstances. On the contrary, it seems to us, stepping back and looking at the section as a whole, that where Parliament provides for the reason for dismissal, or at least, the nature of the reason for dismissal, to be characterised in a particular way depending on information being given in writing then the expectation is that the correct written information will be given and, if not, then that process will not be triggered. If that is a correct view then the matter could end at section 106(2)(a); there would be no need to consider section 106(2)(b).
43. The factual matrix is, however, of critical importance to section 106(2)(b). Whether or not this cumulative condition is complied with depends on the facts of the case. Our second reason for rejecting Mr Brittenden's submission is that the Employment Tribunal's conclusion that Mr Durrant had not been dismissed to facilitate the return to work of his absent colleague but because he had not found a permanent post by the time the fixed term expired, was a finding of fact that they were entitled to reach on the evidence. It seems to us that they cannot be criticised for looking at a broader horizon than just the last 12 months or so of Mr Durrant's employment at the Museum. Earlier history was relevant to the issue of dismissal and the Employment Tribunal were correct to consider it. When looked at in the broader perspective, we think it was open to the Employment Tribunal to conclude that the letters were ambiguous and that Mr Durrant had not been dismissed "in order to make it possible to allow the resumption of work by the other employee." In particular this ambiguity is apparent in the letters of 18 March 2008, asking Mr Durrant to attend a meeting to discuss the fact "… it is possible that your contract of employment will not be renewed" (page 120 of the bundle) and the letter of dismissal of 1 April 2008 (pages 121-122 of the bundle) the pertinent parts of which read:

"I am writing further to our meeting today where we discussed your contract of employment with the Museum. …

As you know, the reason for your appointment on a fixed term contract is to provide cover whilst the current post holder is on a period of maternity leave. With effect from 18 April 2008 your current contract will expire due to the return to work of the substantive post holder, … . In the letter dated 10 October 2007 we explained that in the event it has not been possible to identify alternative work for you to undertake, on either a temporary or a permanent basis, your employment with the museum will be brought to an end on 18 April 2008.

We are aware that you have expressed an interest in a number of roles over the last five months for which your suitability has been assessed, and unfortunately you have not been successful. During the remaining three weeks of your contract, we will continue to notify you of any opportunities that you may wish to express an interest in, and be considered for redeployment into as a priority candidate. However, in the event that it is not found (sic), your contract of employment with the V & A will terminate on the expiry date."

44. Mr Durrant's view of the purpose of the legislation may find some expression in paragraphs 68 to 70 of the judgment, although we have not found these the easiest of passages to understand. Because of our above conclusions we do not think it necessary to say much more about it save for this. We are not convinced an existing employee, who is transferred into this covering role, cannot be within the scope of the section and whilst the use of the fixed term might be unusual we are certainly not embracing his description of the mechanism alighted on by the Museum as an artificial construct with a dubious motive. Be that as it may, the Employment Tribunal examined the facts at length and with care and its conclusion as to section 106 seems to us unimpeachable.
45. We wish to add a further observation, albeit not without hesitation because it is not a point dealt with specifically by the Employment Tribunal, although it might be thought that paragraph 69 of the judgment is groping its way towards this topic, and because consideration of this topic is not necessary to decide this appeal.. It is central to Mr Brittenden's argument that section 106 be regarded as a deeming provision. In the case of a temporary employee dismissed to facilitate the return of a woman from maternity leave, he submits that, provided the conditions are fulfilled, section 106 operates to deem the reason for dismissal to be some other substantial reason. It seems to us, however, that section 106(1) is not so all embracing.
46. It provides that the reason for dismissal, which, to satisfy the requirements of section 106(2)(b), will have to be in order to make it possible to allow the resumption of work by the woman, shall be regarded for the purposes of section 98(1)(b) as being for a substantial reason of a kind such as to justify dismissal. But that does not mean, in all conceivable circumstances, the reason for dismissal must be deemed to be for some other substantial reason and we reach a contrary conclusion to the tentative view expressed by the Employment Tribunal at paragraph 69 of the judgment. It seems to us that there may be cases where, even though section 106 might otherwise be engaged because the employee has been dismissed in order to facilitate the return of the woman from maternity leave, the reason for dismissal might still be redundancy, particularly bearing in mind the impact of section 163(2) of the Act. One example (close to, but not the same as, this case) might be where there has been a "bumping" of an employee out of a post so as to accommodate somebody whose post had disappeared and the "bumped" employee is then given work covering for somebody on maternity leave and subsequently dismissed on her return. Section 106 might otherwise be engaged but would not apply if the reason for dismissal was redundancy because section 106 does not apply to section 98(2) reasons. Consequently we are not convinced that the essential premise of Mr Brittenden's argument, namely that section 106 displaces all other reasons for dismissal by deeming the reason to be some other substantial reason, is a sound one. Where another reason for dismissal exists (and realistically that is only likely to occur in a redundancy situation), section 106 will not deem the dismissal to be for some other substantial reason; that only happens where there is no other reason for dismissal than to facilitate the return of the woman from maternity leave.
47. Mr Brittenden's alternative submission was that if the dismissal was not deemed to be for some other substantial reason by reason of section 106, then the only other reason must be that of lack of capability. When Mr Durrant was absent through illness in 2005 he was incapable. When he returned in 2006 his capability was limited because he was advised not to return to the Picture Library. This lack of capability was dealt with through the capability procedure and his dismissal in 2007 was by reason of his incapability. All that had happened since was that the decision had been postponed through two fixed term contracts but at the end of the second, the original decision was implemented. Accordingly the dismissal was by reason of incapability.
48. Moreover, submitted Mr Brittenden, the reason for a dismissal being a set of beliefs held by the employer, here the Museum clearly believed that Mr Durrant was incapable of carrying out his duties in the Picture Library and therefore that must be found to be the reason for dismissal. For the Employment Tribunal wrongly to classify the reason for dismissal amounts to an error of law (see Wilson v The Post Office [2000] IRLR 834) and that is what had happened in the instant case.
49. But Wilson is a case where the factual issues were said by the Court of Appeal to have been clear throughout. Here the Employment Tribunal thought that the factual issues were far from clear. They were at pains to set all that out in paragraphs 64 to 70, which we have considered above and in paragraphs 71 and 72, which deal with the question as to whether the reason for dismissal was capability and which we set out at paragraphs 20 to 22 above. Buxton LJ in Wilson distinguished the earlier case of Nelson v BBC [1977] IRLR 148 on essentially a factual basis and we think that the instant case is not at all the same as Wilson. The Employment Tribunal did not fall into the same trap as the Tribunal in Wilson. There it alighted on a particular phrase in the letter of dismissal, which it construed, wrongly on the facts, as the reason for dismissal, thus ignoring what all parties had regarded as the reason for dismissal up to that intervention. Here, at best, there are competing reasons set out at various times and, at worst, there are no clearly articulated reasons at all set out by the employer in correspondence. Above all, the correspondence does not articulate capability as a reason for dismissal. Consequently, we do not think that paragraphs 71 and 72 represent a wrong classification by the Employment Tribunal of a clearly understood basis for dismissal (i.e. Wilson's case). Paragraphs 71 and 72 amount to a finding as to what was in the mind of the employer at the time of dismissal. That finding was distilled from and supported by the contemporary correspondence. In our judgment it amounts to a finding of fact that is not susceptible to challenge on appeal. Accordingly, the Employment Tribunal were right to reject incapability as the reason for dismissal.
50. Having reached the conclusion that section 106 did not apply and that the dismissal was not by reason of incapability the Employment Tribunal, in our view correctly, thought the remaining question to be "… therefore to decide if the reason for dismissal was redundancy or some other substantial reason" (see paragraph 73 of the judgment).
51. The Employment Tribunal answers this question in favour of redundancy in paragraphs 73 to 75 of the judgment. We chart the course of this part of the judgment at paragraph 22 above and we confess to finding these paragraphs hard to follow. The Employment Tribunal early in paragraph 73 address Mr Brittenden's main point on redundancy, namely that Mr Durrant was replaced in the picture library when he was absent through illness and so nothing arose there that could fall within the statutory definition of a redundancy dismissal set out in section139(1)(b) of the Act. The Employment Tribunal had reminded themselves of the definition at paragraph 60 of the judgment and we should do the same. It reads:

"(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to -

...

(b) the fact that the requirements of that business -

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where he was employed by the employer,

have ceased or diminished or are expected to cease or diminish."

52. The Employment Tribunal in the context of answering Mr Brittenden's point about replacement, which it says "does not enormously influence us for the following reasons", referred itself to Murray v Foyle Meats Ltd and to Safeway Stores Plc v Burrell (see paragraph 22 above). It does so after having said that the definition of redundancy had undergone "something of a transformation in the late 1990s". Taken at face value that is a somewhat startling statement; the definition quoted above has not changed significantly since it was first enacted in 1965. What the Employment Tribunal must mean, therefore, is that the House of Lords in Murray and this Tribunal in Burrell have brought about some significant re-interpretation. But even that is perplexing. Our understanding is that Murray restores the orthodoxy of the statutory language by rejecting the heresy that work of a particular kind means the work that the employee was contracted to do. What had been argued on Murray's behalf was that because, under the terms of his contract, Murray could have been moved from the killing line to the boning hall any diminution of work on the killing line was not a diminution of the employer's requirements for employees to carry out work of a particular kind because the requirements for work in the boning hall had not diminished and, by his contract, that was work Murray could have been obliged to do. In rejecting this the House of Lords re-established that the focus was the job the employee was doing not the potential scope of work that he could be required to carry out under the contract of employment.
53. We find it difficult to understand how this answers or even forms part of the answer to the point raised by Mr Brittenden and it may be that the real significance of Murray for the Employment Tribunal was its adoption of and approval of the decision of this Tribunal in the case of Burrell. What the Employment Tribunal seems to have found helpful in Burrell is the concept of the "underlying cause". There was such an "underlying cause" in play in the instant case, said the Employment Tribunal at paragraph 75 of the judgment. It was not Mr Durrant's inability to return to the picture library but his failure to get other work. The inability to go back to the picture library was "besides the point", which was that the requirements of the Museum for employees to carry out "broadly administrative" work had ceased or diminished as illustrated by the history of Mr Durrant from 2005 onwards.
54. It is difficult to discern to what extent the above represents an acceptance of Mr Durrant's submissions. In a sense it comes close to the way that Mr Durrant put the case on redundancy in his argument to us. He emphasised that he was employed in an administrative grade and largely worked on administrative tasks and his argument proposes that because there is less need for administrative grade civil servants to carry out administrative work, a redundancy situation arises. The Employment Tribunal appear to have accepted , at least, some part of this in two passages, in paragraph 75:

"The reason he was dismissed was that there was nothing that could be offered to him. The requirements of the employer's business for employees to carry out work of a particular kind had ceased. The Claimant was surplus to requirement because his original post had been replaced in circumstances where the parties agreed that he could not return; and because all other available options had run out.

…

The overall requirements of the employer for employees to carry out work of a particular kind, which in the Claimant's case was broadly administrative, had diminished. They had been unable to place him in any other post, or not done so, and he had been unsuccessful in securing any appointment. For a variety of posts for which the Claimant applied he failed to meet certain specified criteria. This reflects the situation at the termination of employment which is that the overall requirement of the employer for employees to carry out work of a particular kind had ceased or diminished. Therefore, on our analysis the Claimant was truly redundant, even though that redundancy arose from circumstances which in industrial terms were unusual."

55. But "surplus to requirements" is not any part of the statutory concept nor even an analogue of the statutory concept and it seems to us that these passages exemplify the very error identified and addressed by Murray. The question posed by section 139(1)(b) of the Act is not whether the need for employees on certain terms and conditions to carry out work had ceased or diminished but whether the need of the employer to carry out work of a particular kind had ceased or diminished. The issue was not whether there was less need for those on a civil service grade to carry out the work but whether there was less of a need for such work to be carried out at all. There are some slight suggestions in the findings of fact that there had been a measure of contracting out and, no doubt, that might be relevant to answering the question posed by section 139(1)(b) but there is scarcely a coherent set of factual findings and we reject Mr Durant's submission that the answer lies in section 163(2) of the Act (i.e. the presumption of redundancy).
56. Nor can we see why the "underlying cause" identified by the Employment Tribunal (i.e. the lack of a suitable job) satisfies the statutory definition. HHJ Clark pointed out in the very passage from Burrell cited by the Employment Tribunal that the "underlying cause", which we think means no more than the underlying reason for the "redundancy situation", does not mean that the statutory definition is bound to be satisfied and here we cannot see how the fact that no alternative job emerged between 2005, when Mr Durrant went absent through illness and 2008 when he was finally dismissed.
57. So we accept Mr Brittenden's submission that the Employment Tribunal has misdirected itself. It has confused the fact that Mr Durrant failed to secure alternative work with both a general redundancy situation and the requirements of the business for employees to carry out work of a particular kind. Moreover, we do not think that Mr Durrant's experience provides an evidential basis for the conclusion that the Museum had a diminished need for employees to carry out administrative work. That might prove to be the case but specific facts need to be considered.
58. The consequence is that whilst we reject Mr Brittenden's first two arguments the appeal must be allowed on the question of redundancy. Contrary to his submission on disposal, however we do not think it is inevitable that redundancy cannot be made out and we think that the matter should be remitted to the same Employment Tribunal for it to consider again the reason for dismissal within the following parameters. The finding that section 106 does not apply stands, as does the finding that the reason for dismissal was not incapability. Also the finding that the Museum's reason or set of beliefs for terminating Mr Durrant's employment was the fact that there was no alternative employment of either a permanent or temporary nature available at the effective date of termination will stand. The question which the Employment Tribunal will have to re-consider is whether, in the circumstances, that amounts to redundancy or to some other substantial reason; in relation to that section 162(3) of the Act will be relevant. The parties will be at liberty to call further evidence if so advised and that evidence will be confined to the questions as to whether there existed in the Museum at any time between 2003 (when V & A Enterprises Ltd ceased to be the agent for the Museum and took over complete control of activities formerly carried out by the Museum) and 2008 a redundancy situation; whether one consequence of that was a diminution in the requirements of the Museum for employees to carry out work of a particular kind; if so, whether that was work of the particular kind carried out by Mr Durrant and the diminution resulted in his dismissal. The scope of evidence can include the nature and extent of work, formerly carried out by employees of the Museum, which subsequently has been carried out by V& A Enterprises Ltd and the numbers of employees on the same banding as Mr Durrant over the period 2003 to 2008.

Note 1   Referred to the Employment Tribunal as VAE Enterprises Ltd; we have adopted the name used above from Mr Durrant’s submissions.    [Back]

Note 2   It has never been suggested that section 106(3) is relevant to this case.    [Back]