Murden v W S Business Services Ltd [1995] UKEAT 371_94_0903

EAT
Murden v W S Business Services Ltd
[1995] UKEAT 371_94_0903 · 1995-03-09

JUDGE LEVY QC :

W S Business Service Ltd ("the Company") is a company which a firm of accountants use to service the necessary administration for the firm. Mrs Linda Murden was employed by the Company from 30th July 1984. In April 1992 she left for maternity leave and on 8th October 1992 she came to the firms premises with her baby. There she met one of the partners of the firm, and a director of the company Mr Besser. According to the Full Reasons of the Industrial Tribunal and in circumstances to which we shall come to in a moment, Mrs Burden told Mr Besser that she was concerned at the prospect of redundancy at the company. She said Mr Besser did not say anything to her about her job being at risk, although agreed that Mr Besser had mentioned that there would have to be redundancies in her area of expertise. By that time (October 1992) the recession was in full sway and the accountancy firm was feeling its share of the difficulties which many professional firms had at that time.Following that meeting, on 25th October the Company wrote her a letter in these terms:
"... Although we have had no written confirmation from you as required by the statutory maternity provisions, we understand that you intend to return to work on 9th November 1992."
"Before you return it is important that we arrange to meet to discuss the following."
"We are sorry to have to inform you that taking account of the loss of major clients it has been decided that it is vital for our future to re-organise."
"As you know the loss of Burke & Hare, Bentley Restaurants and Lautrec directly effects your role since this business accounted for a large part of your duties."
"We have looked at various alternatives to deal with the changes that are required and in the circumstances we consider that your job can no longer be sustained and that you should be made redundant."
"However, before any redundancy is made we would like to discuss with you the reasons why we have reached this decision and to listen to your views on the matter."
"We should be grateful if you would telephone Howard Graham to arrange a meeting to discuss this matter as soon as possible."
Of this letter, the Industrial Tribunal said with some force that they found it somewhat confusing. But we think that it is not a letter of dismissal, but a letter showing that the writing is probably on the wall but that Mrs Murden was to have the opportunity to talk to Mr Graham on behalf of the Company before any firm decision was taken. At a date unknown to us, there was a discussion with her, at which her husband was present. Following that meeting, she received a letter dated 5th November 1992 from Mr Graham phrased in this way:
"I refer to my letter of the 28th October and our subsequent meeting at which your husband and Keith Besser were both present."
"The purpose of the meeting was to discuss the question of the redundancy situation, to consider your views and review other options that might exist"
"A number of issues were discussed and I felt it would be appropriate to address these in writing."
"[1] The original letter referred to the loss of a number of jobs including Burke & Hare, Bentley Restaurants and Lautrec. The significance of these jobs was the fact that your role had developed over the year to the extent that it was hoped that there would be an increasing number of installations and external consultancy work making use of your skills. The loss of these jobs and the general economic recession has meant that such opportunities have not come our way and the partners can foresee no likelihood of such opportunities."
"[2] You made reference to the fact that you were originally recruited as a book-keeper. There can be no doubt that over the period of time you were with us, your job specification changed in a number of ways as you learned new skills. Whilst it was never laid down in writing, your role was to manage the computer department and you were responsible for most of the internal book-keeping systems at this office."
"However, over the last year or so prior to you departing on maternity leave, the nature of your role did change, particularly in last six months as evidenced by your time sheets. Much of your time was spent "fire fighting" as we experienced a number of problems with the installation of our new file server and the updating of our network. On numerous occasions, the system was going down and you were finding it necessary to spend a considerable amount of time trying to get it up and running."
"Thankfully, our problems in this respect have all but virtually disappeared so that the instances of a "crash" are rare. Additionally, I made it my business, at the request of the partners, before your departure on maternity leave, to take control and responsibilities for our computer systems. Of course, with the way our business is run, this has not meant that I have been able to off-load any of my other work."
"[3] Over the last few months of your time with us, prior to leaving for maternity leave, a number of jobs were delegated by you so that-"
[and then the letter deals with what additional other members of staff were given to do. And the letter goes on]

These tasks were taken on in addition to their existing duties."

"The above highlights the reasons why we consider that you position no longer exists. I can assure you that we have explored all the alternatives and considered all the points you raised very carefully but there still seems no other way than to make you redundant as there are no other job opportunities that can be offered you."
"We feel it would be difficult for you to have to return to work knowing that this decision has been taken. We have therefore terminated your employment with effect from the 9th November 1992."
[ and then letter deals with the forms which were sent and express appreciation for work that Mrs Murden had done over the years].Faced with that letter, not unnaturally, Mrs Murden commenced proceedings in an Industrial Tribunal on 10th December 1992. The company put in its Notice of Appearance on 24th December 1992. There was a hearing at London South on 26th October 1993. The Full Reasons for the Tribunal's decision was despatched to the parties on 24th February 1994. The conclusion reached by the majority was that the applicant was not unfairly selected for redundancy and therefore was not unfairly dismissed. The minority expressed a different view.From that decision, again not unnaturally, Mrs Murden has appealed. We can well understand that when an employee leaves on maternity leave, and finds a redundancy hoisted on her just as she is about to return, she looks at the decision with some suspicion. We are sure that the Industrial Tribunal looked at the position initially with the same attitude. But what we have in the decision is a very fair setting out of its reasons. The facts behind the decision for redundancy and the reasons for it are clearly set out. There are ample facts found by the majority of the Tribunal to satisfy us that there was indeed a redundancy situation in the Company, and there was a fair selection procedure carried out from which Mrs Murden was the unfortunate loser.There is a passage in the Full Reasons which strongly supports the Company's decision and that of the majority at the Industrial Tribunal:
"We are satisfied that the Applicant's skills were no longer substantially relevant, and that the Respondent Directors being Chartered Accountants, were in a situation where they had to choose in the interests of the continuation of their business where the most competent and accurate employees were available"
"We would ask ourselves whether they would be likely to dispense with the services of a long standing employee and with her knowledge of clients and their specialised needs she was in a position to assist in keeping the business afloat."
We have pondered for a time to consider whether the decision was procedurally fair, because the evidence on that is scanty. However, there was a warning of redundancy, there was a preliminary letter, there was a form of discussion in the meeting and Mrs Burden was provided with a resume of the facts in the letter of 28th October. In these circumstances, although we can well understand why the minority member came to the decision he did, we have concluded that there was ample evidence for the majority to come to their decision. In these circumstances it is not open to us to interfere with it.Mr Bacon who has made a spirited attack on the Tribunal's decision on a number of grounds, has not satisfied us that any point of law arises on this appeal. It seems to us that, as what we have said, there was a redundancy situation and in the midst of the recession, unfortunately Mrs Murden was the person with whom the Company felt they could properly dispense on the grounds of redundancy. Both parties have referred us to the decision in Polkey - v - Dayton Ltd 1988 ICR 142 and in particular the well known passages in Lord Bridge's speech and having considered those passages we are satisfied that the appropriate steps were taken by the Tribunal in considering the matters which they had to consider before the majority came to the decision which they did.In the circumstances we will dismiss this appeal. We thank both Counsel for their assistance.