Rides v U M S Travel [1994] UKEAT 622_92_3108

EAT
Rides v U M S Travel
[1994] UKEAT 622_92_3108 · 1994-08-31
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by the Appellant, Mrs Lynda Rides against a decision of the Industrial Tribunal sitting at Bristol as long ago as 14 April 1992, whereby the Tribunal unanimously decided that the Appellant's complaint of unfair dismissal be dismissed. The Respondents to the appeal are U M S Travel. They have indicated that they do not propose to attend the hearing of this appeal, nor to be represented, the reason being that they are no longer in business.The Appellant was a senior manager in the travel industry and she worked for a concern called Snowdon Travel in Bristol. She began her employment there in October 1983. By November 1990 the Appellant, a married lady, was expecting a baby. She took maternity leave, as of course she was fully entitled to do. She worked until 26 November, the day before she was confined and left for her maternity leave on 27 November. On 5 December, the Appellant wrote to the principal shareholders of Snowdon Travel and said that she intended to return to her job after her maternity leave, but meanwhile Snowdon Travel were being taken over by the Respondents, U M S Travel. As to that, the Tribunal found, by a majority, that a relevant transfer had taken place under the Transfer of Undertakings (Protection of Employment) Regulations 1981, that transfer being of course between Snowdon Travel and U M S.On 7 May 1991, the Appellant wrote again, this time to the principal of the new firm who had taken over the business, and stated that she intended to return to work on 17 June 1991. That was a date within the 29 weeks from the date of her confinement which gave her therefore, a legal right to return under the provisions of Section 45(1) of the Employment Protection (Consolidation) Act 1978. Mr Morgan Hicks, the principal who received her letter, replied to it on 10 May saying that he was under no obligation, under contract, to deal with former employees of Snowdon Travel. He advised the Appellant to seek a remedy against them, Snowdon Travel. However, he did make an offer of employment with U M S Travel though at a substantially reduced salary from that which the Appellant had been paid previously. She refused that offer. In her Originating Application, IT1, the Appellant complained of unfair dismissal. She set out the full details of her complaint. The principal remedy which she sought was that of reinstatement. Unfortunately, that remedy is no longer available to her by reason of the fact that the firm has gone out of business, but it does not, of course, disentitle her to other remedies if she can satisfy a tribunal she should recover them.When the Tribunal came to deal with the matter, they said this, at paragraph 7 of their reasons:
"The next matter we have to consider is whether the Applicant was dismissed on 10 May 1991 when Mr Morgan-Hicks wrote the letter. Under Section 56 the Applicant claims that she was not permitted to return to work and was dismissed on 10 May 1991. The Respondent's case is that it was not practicable to offer her work under the original contract because the requirements of her previous job had diminished and she was redundant. The Respondents offered her suitable alternative work in accordance with Section 45(4) which she refused.
At paragraph 8 the tribunal say this:"On the first point we are unanimously satisfied that we accept the Respondent's evidence that the Applicant's work had diminished during her absence and their refusal to offer her her original job was because of redundancy".And at paragraph 9 they say:
"Turning to Section 45 we are unanimously satisfied that:- (a) The work offered to the Applicant was suitable and appropriate; and"
Interjecting there, that was a clear reference to Section 45(4) paragraph (a). TheTribunal continued, and said:"(b) its terms and conditions were not substantially less favourable".Interjecting again, that was a clear reference to Section 45(4) paragraph (b). The

Tribunal continued:-

"Her salary was £6,000.00 less than before but £5,000.00 of this downturn was because she had resigned her managing directorship in December 1990, during her absence".That finding is not, nor could it be challenged, in the present appeal. The Tribunal

continued:-

"In the circumstances of the loss of business owing to the recession and cessation of work of managing director, a loss of £1,000.00 in salary was not unreasonable".

And then in the final paragraph (10) the Tribunal say this:-

"It follows that we are unanimously satisfied that the Respondent carried out his statutory obligations under Section 45 of the Act and the Applicant was not dismissed".We have been greatly assisted in considering this appeal by the submissions made byMrs Underhill on the Appellant's behalf. Mrs Underhill has taken us through the relevant sections of the Employment Protection (Consolidation) Act 1978. Those sections are, in our opinion, sections 45, 46, 56 and 86. The complaint made by Mrs Underhill is that the Tribunal failed to comply with the provisions of Section 45(1) and that they should have considered the matter under that sub-section. Mrs Underhill submits that the error which the Tribunal made was to decide whether there had been a dismissal or not under the provisions of sub-sections 3 and 4 of Section 45, but that those were not the appropriate sub-sections for the Tribunal to consider. What they should have been looking at, in Mrs Underhill's submission, are Sections 56 and 86. Section 56, considering whether there had been a dismissal for the purposes of unfair dismissal (what Mrs Underhill has referred to as a deemed dismissal) and Section 86 in considering whether there had been a dismissal for the purposes of redundancy.The submission is that the Tribunal failed to address the correct point and failed to consider the relevant position. It would not be open for us to consider the matter because we do not have the material before us to enable us to do so. This is a case where, if the appeal succeeds, the matter must be remitted to a fresh Tribunal for a re-hearing. In our view there is substance in the submissions which Mrs Underhill makes. We propose accordingly, to remit the matter to a Tribunal for further consideration, and in particular to consider the following questions:-"(1) Whether the dismissal on the notified date of return which is, as the Tribunal have already found, because of redundancy, is unfair under the provisions of Section 57(3). Alternatively, if a dismissal is found to be fair, to whether the Appellant is entitled to a payment on the ground of redundancy".The appeal succeeds accordingly and we remit the matter in the terms indicated.