Barker v Durham County Council [1994] UKEAT 522_92_1306

EAT
Barker v Durham County Council
[1994] UKEAT 522_92_1306 · 1994-06-13

JUDGE LEVY QC :

Aycliffe is an institution providing assessment and treatment for maladjusted and problem children where the Appellant to this appeal was employed. By a letter dated 24 May 1991, the director of the institution formally terminated his employment as Assistant Director (Gate-keeper) with effect from 31 August 1991. The same letter offered him an alternative post of Manager of one of the houses at the school. The offer was not accepted by the Applicant and he was in due course paid appropriate redundancy money. He complained that he was unfairly dismissed and there was a very full hearing before the Newcastle upon Tyne Industrial Tribunal on 12 and 13 February 1992 where the Chairman was Professor D W Elliott.At the end of the hearing the unanimous decision of the Tribunal was that the complaint of unfair dismissal failed; it was accordingly dismissed. It is from that finding that there is an appeal. At the outset of the hearing today Ms Cox QC, who appeared for the Appellant, rightly said that there was no allegation of perverse findings by the Tribunal. What she submitted was on two particular factors, which were analysed in some detail, the Tribunal below misdirected itself.We think it important to refer to the only authority which has been referred to us in the course of the hearing today at the outset of this Judgment. That is the decision of this Tribunal in Williams v Compair Maxam Ltd [1982] IRLR at p.83 when Browne-Wilkinson J, giving a reserved decision, allowing an appeal in an Industrial Tribunal, made some observations on what steps a reasonable and fair employer should seek to take in dismissing unionised employees on the ground of redundancy. He said they were not principles of law but standards of behaviour. At paragraph 35, before the conclusion of the judgment Browne-Wilkinson J said:
"For the purpose of giving our reasons for reaching our exceptional conclusion that the decision of the Industrial Tribunal in this case was perverse, we have had to state what in our view are the steps which a reasonable and fair employer at the present time would seek to take in dismissing unionised employees on the ground of redundancy. We stress two points. First, these are not immutable principles which will stay unaltered for ever. Practices and attitudes in industry change with time and new norms of acceptable industrial relations behaviour will emerge. Secondly the factors which we have stated are not principles of law but standards of behaviour. Therefore in future cases before this Appeal Tribunal there should be no attempt to say that an Industrial Tribunal which did not have regard to or give effect to one of these factors has misdirected itself in law. Only in cases such as the present where a genuine case for perversity on the grounds that the decision flies in the face of commonly accepted standards of fairness can be made out, are these factors directly relevant. They are relevant only as showing the knowledge of industrial relations which the industrial jury is to be assumed as having brought to bear on the case they had to decide."
With these very wise observations in mind, we turn to the facts on which this appeal is concentrated.There had been several reorganisations at the institution during the time of the Appellant's employment. In 1989 there had been a reduction in the management staff as is set out in paragraph 5 of the full reasons. We do not propose to rehearse these here, but the fact was that in a later reorganisation management sought to introduce further refinements, that is to make further staff reductions. Between 1989 and 1991 the position of the Appellant was as an Assistant Manager (Gate Keeper). His job was one of 3 where a redundancy unfortunately became necessary in the further refinement changes.The first of the complaints that Ms Cox makes on behalf of the Appellant today was that the employers as reasonable employers should have looked at the scope of people in the same reorganised position of the Appellant after the 1989 reorganisation to see whether he was the right man to be selected out of the pool, bearing in mind, as she reminds us, that he had been in employment since 1976 and was the employee with the longest service. She says that was not done. We are not satisfied that this was not done on the evidence and we think it was open to the Industrial Tribunal to have concluded that it was. There was a very long period of consultations and although it is not explicitly raised in the documents, if this was a point which could have been made, we are sure it would have been taken by the experienced union representatives who appeared for the Appellant in the Industrial Tribunal. It does not appear on the face of it to have been made below and we are not sure therefore, in truth, whether it is open to Ms Cox to argue it now. However be that by the way Mr White suggested a different approach to that problem. He draws our attention to the contract of employment which is common ground ran at all times through the employment of the Appellant, Clause 9(d) of that contract (at page 32 of the supplementary bundle which was given to us today) reads as follows:
"He [the employee] shall from time to time serve the managers upon being required to do so in an appropriate capacity other than that in which he/she is initially or subsequently employed subject to the provision that the salary payment payable to the employee after such change shall not be less than the salary he/she received before such change."
Mr White submitted that this was not a matter of interchangeability as Ms Cox argued but it was a matter of fact and degree. There was a reserved right to the employer to change the capacity of the employee and it is a question of fact and degree as to whether that was properly exercised and on the facts of this case it was something which was open to the employer to do. We think that Mr White is right on his submission but if we were wrong on that we do think that having regard to the terms of the full reasons the point is not open to Ms Cox to argue on this appeal.Further, this is not a case where perversity was raised by the Appellant in the Notice of Appeal and in the circumstances we think that there are findings of fact in the judgment of the Tribunal which enable the Respondent properly to say that the Tribunal had regard to the provisions of section 57(3) of the 1978 Act and accordingly it would be wrong for this Tribunal to interfere with the decision below.The second point made by Ms Cox on behalf of the Appellant dealt with the alternative employments which were offered to the employee. First of all she said the efforts by the employer to find alternatives were inadequate and secondly that insufficient offers were made. We have been reminded by Mr White of the provisions of section 82 of the 1978 Act which deal with general exclusions from right to redundancy payment. There has been no suggestion here that the Appellant did not have or should not have had the redundancy payment which he was offered and in those circumstances we think the second of Ms Cox's points does not arise; as to the first, there has been a finding by the Industrial Tribunal which ones finds at paragraph 14 of the decision it reads:
"Taking everything into account, we think that an offer of a salary protected on Point 9 on the Scale was a not ungenerous one. We do not go so far as to say that the applicant's rejection of the offer was an unreasonable thing to do, but we do conclude that the making of the offer in the terms in which it was made shows that the respondent was not trifling with the applicant but was determined to do for him as much as it reasonably could."
We think that on the facts of this case the provisions of section 57(3) were something which the employer had in mind and the Industrial Tribunal had well in mind and there is no misdirection which we think affects the decision.In the circumstances we propose to dismiss the appeal.