Fernandes v Safeway Stores Plc [1996] UKEAT 179_95_0305

EAT
Fernandes v Safeway Stores Plc
[1996] UKEAT 179_95_0305 · 1996-05-03

JUDGE B HARGROVE QC:

On 18 January 1995 the Industrial Tribunal dismissed the Appellant's claim that he had been unfairly dismissed. The defendant was employed by the Respondents for just over two years. He was dismissed as a result of redundancy. Before the Industrial Tribunal he claimed that the dismissal was unfair and that he had been underpaid for the past two years.The employment history can be summarised as follows. On 27 July 1992 the Appellant stated a grievance in relation to working hours, multi-skilling, holidays and holiday pay and a complaint that he should have received a performance related pay rise. No mention was made there of being in the wrong wage band.On 23 September 1992 the Appellant raised a further grievance, that he had not been paid sick leave and had insufficient breaks in his working day. He asked for a transfer from the Camberwell Green branch. It was heard in October 1992, again no complaint about the wrong wage band.On 22 January 1993, there were problems which arose following pricing procedure and he received a warning. On 5 April 1993 he was told of a review of the arrangements at his employers and that the position of Data Transmission Clerk would cease to exist. He was told that he could retrain as Assistance Administrator; that would not be at an increased salary or train for two other matters or take redundancy.On 29 April he was given a final written warning and on 30 April there was a letter from the Appellant and that letter is worthy of some consideration. It was addressed to Mr Legg and it is in reply to the offer made arising from the redundancy situation and Mr Fernandes writes:
"Thank you for your letter dated 5 April 1993. I must say that having a present position of a data transmission clerk and trained in FMC and checkouts, my basic rate is based on cashiers grade where I should be taking of a general administration grade since last two years.
I would like to take up the new position of a system administrator provided my salary goes up to the right grade and as the store takes, if not I would like to remain at my current position for a period of months as mentioned in your letter.I would be grateful if you would look into this and do the needful.

Thank you in anticipation."

The reply to that on 28 May explained that the store is due to transfer to the new structure and then lists again the various alternatives and it says:
"I must stress that it is up to you to make the decision as to which option you choose and not for Store Management to make that decision for you. However if you refuse to make a decision as to what you want to do then we must assume that you do not wish alternative employment and you will be made redundant.
As this is now close to date that your store is due to transfer to the new structure I am prepared to extend the time allowed for you to make your decision. Your effective redundancy date will not be 12th June and if you have not taken a decision by then then you will be made redundant on that date."The position which the Appellant now says applies is this. He, by the letter of 30 April, and by a further letter which we can see on 7 June, what he meant to say was that, "Yes, I am taking up the post, but also I want you to look into the question of whether I am receiving the correct wages on the correct band". If one looks at the letter of 7 June, the relevant passage reads as follows:
"I would like to take up the new position of a system administrator provided my salary goes up to the right grade and as the store takes before I accept the new position, if not I would like to remain at my current position as mentioned in your letter previously given."
The effect of that was that the employers, having tried to get to the Appellant to give them a firm indication that he was going to take up the post, decided that he was failing to do that and he was made redundant to be dismissed on 24 June.One of the oddities about the case is that, even after that his grievance was heard yet again in July and (I will come back to that in a moment) the way in which the Tribunal dealt with the matter was as follows and it starts at paragraph 6:
"6. When dealing with dismissals for redundancy, the Tribunal must first be satisfied that a redundancy situation existed. The Respondent is entitled to reorganise his business, and in this case many of the functions of the Data Transmission Clerk were done away with by reallocation of responsibilities to the Systems Administrator post, and a new store-keeping system which was introduced at the same time. The Tribunal is satisfied that a redundancy situation existed within the meaning of the 1978 Act."
I pause there. There is no dispute before us that that is a correct decision. Paragraph 7 continues:
"7. The new post of Systems Administrator was radically different from that of a Data Transmission Clerk. It required different skills and had added responsibility, and attracted a higher wage. Each applicant would have to be judged on his merits. The Applicant was invited to apply for the Systems Administrator post which the Tribunal finds was an offer of suitable alternative employment."
Again, there is no dispute relating to that. Paragraphs 8 and 9 provides:
"8. The Applicant refused to apply because he had a perceived grievance over the wage banding over the previous two years. Clearly, this was a separate issue from taking up the new post at a new rate of wages. Should there have been a mistake in wage banding for two years, then the Applicant could have pursued this separately by the internal grievance procedure, or, if necessary, by a breach of contract action in the County Court.
9. On 12 June the Respondent was faced with the circumstances that the Applicant had been offered retraining following employment as a Systems Administrator, or retraining in order to fill any vacancy arising in the Balham outlet, or another outlet in the immediate area (although no such vacancy was particularised). The Applicant chose not to apply for either. The Tribunal finds as a fact that the Respondent has discharged his duty to the Applicant with regard to consultation and the offer of alternative employment. This dismissal was fair."What is said about that is that the Tribunal first of all has misdirected itself as to the true nature of the letters written on 30 April and on 7 June. Those letters were, in fact, letters of acceptance. They were not conditional. Secondly, it is said that the Tribunal again misdirected itself by failing to ascertain what was a proper and reasonable approach in all the circumstances.It is suggested that a reasonable approach would have been for there to have been further consultation, so that the issue of the wage banding could have been resolved and cleared away and that would have meant that the Appellant would then have been in the position of being able to take up the post.The problem with that approach is this. There is no doubt that there was clear evidence before the Tribunal in those two letters that this was a conditional acceptance. Management was not offering that there would be an investigation into the claims that he was making which, as the Tribunal noted, came very late on the scene. It was offering those three propositions; it was requiring an answer and it was reasonable to require an answer without pre-conditions being attached to it by the employee.It is trite law that if you make a counter offer you destroy the original offer and although there is no letter which says, in terms, "I refuse the offer", in our view the Tribunal was perfectly justified in taking the approach that it did, saying that the offer was not taken up.Secondly, it is said that there should have been further consultation. We have read the documents which have been placed before us. It shows extensive consultation, even going beyond the stage where there had been the final decision to dismiss and it is significant that, even at that stage, the employers were still seeking to find out what the employee wanted and the position becomes clear in two passages.The first is the answer of the Appellant to this question:
"You wanted him to make your decision for you - to increase your rate of pay before you became a Systems Administrator. That's your grievance? Answer: "
Yes" . And then he was asked, "Why didn't you make a decision?" and his answer was, "I felt I was not getting the right money and so it was not right to take on more responsibility". Those were matters which were before the Tribunal and, in our view, they are conclusive that this was a case where the employer was faced with a degree of intransigence upon this issue, which prevented the employee from giving any decision, although it was well known when the final date for redundancy would arrive and indeed, there had already been one extension.On the final matter the Tribunal held that there was no evidence of any wrongful deductions and upon that basis they seemed to have also reached the conclusion that there was nothing in the allegations that he had been paid under the wrong wage band for two years in any event.We have listened carefully to everything that Ms Genn has so admirably placed before us. No one could have done more for her client, but we regret to say that this is a hopeless appeal and is dismissed.