Arnold v Gateway Foodmarkets Ltd [1994] UKEAT 880_92_1006

EAT
Arnold v Gateway Foodmarkets Ltd
[1994] UKEAT 880_92_1006 · 1994-06-10

JUDGE LEVY QC:

Although it has taken some time in argument this appeal really concerns a short point. Miss Tracy Arnold, the Appellant here, was employed by Gateway Foodmarkets Ltd, and the time came when the Respondent to this appeal thought there had to be redundancy in the store in which the Appellant was working. An appropriate letter was sent to her; we find it at page 13 of our bundle, it is dated the 5 November 1991, it is addressed to the Appellant in Rossington, Doncaster and reads:
"Further to your meeting with your Store Manager, I now write to confirm that your employment will be terminated from 30 November 1991 due to the current adverse trading situation and the need to reorganise manning levels within the store.
Naturally the Company is very sorry that you are facing redundancy and will make every effort to help you between now and the time of your leaving, and will see if an alternative position can be found for you. However, if an offer of suitable alternative employment is not forthcoming, outlined below are the final payments you will receive from the Company when your redundancy takes place."Then the calculation is set out, and in the two final paragraphs the letter says:
"If you have any queries regarding this information, please do not hesitate to contact me. You should also refer all enquiries regarding your employment, to my office at the address in Hyde.
Finally, on behalf of the Company, I should like to thank you for your past service and wish you every success and good fortune in the future."There was clearly a redundancy situation. This is found in the full reasons delivered on the 25 October 1992, following the hearing on the 6 October 1992 before the Sheffield Industrial Tribunal:
"The tribunal is satisfied from the evidence that it has heard that the selection criteria which was 'last in first out' was correctly carried out and was correctly applied in all cases. The tribunal is aware that the applicant through her representative has no criticism of the selection procedures or the reason that it was done on the time honoured 'last in first out' basis. This was not criticised or challenged at the time of the redundancies by the union as full consultation was achieved. The tribunal has heard that the respondent interviewed each member involved in the presence of their union shop steward to explain that they were to be made redundant and the time when this would happen. The store manager, Mr Mulligan, was at pains to point out to each person that although the redundancy was a fact of life his particular feeling was that a pricing initiative which the company had started, the 'red spot' pricing initiative, which made their products as competitive if not more with that of their rival would in fact reverse the adverse trading situation and Mr Mulligan's words turned out to be correct because there was a remarkable upturn in the store's turnover to such an extent that it rendered it unnecessary to have those people ultimately made redundant."
So, before the notice period had expired, there had been that remarkable turnround and there was evidence below that Miss Arnold was told that she could have her job back, and that the notice which I have read out need not be implemented. That was prior to the notice having expired; nonetheless, she having been given the opportunity not to go, decided she did not want to stay. It is a reasonable response for her to have made because she had been told by one of the employers' representative that there could be no guarantee that she would not be made redundant at a later date.A criticism is made because the full reasons of the Industrial Tribunal do not go into the reasonableness of her stance but the position is, as we see it, that the employers behaved as fairly as they could be expected to behave in the circumstances regarding this redundancy, they paid her redundancy at the end of the period, she accepted it and then she began these proceedings.We have been taken, at some length, by Mr Brown, who appears for the Appellant, into the provisions of Section 82 and 84 of the Employment Protection (Consolidation) Act 1978 but we do not think that they have any part to pay at all in the matters which were before the Tribunal below. We are sorry that the notes of evidence are perhaps less full than the Appellant would have liked them to be, there has been no effort made by either side to supplement those notes and in those notes there is clear evidence which entitle the Tribunal to reach the findings of fact, which in fact it did reach. Perhaps for clarity I will set out the passages in the evidence to which we particularly refer. There was evidence from George Jones, the Project Manager of the Respondent, where he said, page 19 of our bundle:
"On 30 November 1991 all affected staff were offered their jobs back. Three decided to stay and three left."
There appears to have been no cross examination directed at that.There was evidence from Mr Mulligan, the former Store Manager, he said in his Evidence in Chief at the foot of page 22:

"Informed the concerned staff told would not have to leave."

That is obvious shorthand in the Chairman's note, but it seems to us clear that he told the Tribunal below that all the six staff were told they would not have to leave before the notice had expired and he goes on his evidence to say:

"Tracy said wanted to go had had enough. No future guarantees could be given."

In cross examination there was some talk about offering Tracy 20 hours of work, but we do not know whether that relates to an earlier time than the notes or time when she was given her job back or not. The witness was asked:

"What did you say to Tracy?"

and the notes of evidence records:
"In canteen not professionally said no need to go. I couldn't guarantee trade. She said she had "had enough"."
That is obviously not a full note of the evidence, and although the words are "not professionally said" or recorded, what is quite clear to us is that the Appellant was told that the notice served would not be implemented but that it could not be guaranteed the trade would be sufficient, to avoid a further redundancy notice later. She then she said she had had enough. A little further in the Notes of evidence there is one to the effect that the Appellant declined to have her job back. This was her decision for which the Respondents were not responsible.In the circumstances it seems to us, that despite Mr Brown's very valiant efforts, this is an appeal which must fail and accordingly we dismiss it.