Sheridan v GPT Communication Systems Ltd [1997] UKEAT 881_96_2801

EAT
Sheridan v GPT Communication Systems Ltd
[1997] UKEAT 881_96_2801 · 1997-01-28
MR JUSTICE KIRKWOOD : This is an appeal by an employee, Mr Sheridan, from the dismissal of his complaint of unfair dismissal by the Industrial Tribunal sitting at Bedford in February and March 1996.It has to be stressed that this appeal is not in any sense a re-hearing, nor in any sense an opportunity to generally rehearse the arguments in the case.This Appeal Tribunal can only interfere with the decision of the Industrial Tribunal if it is demonstrated that the decision flowed from a misdirection upon the law; or that the Tribunal's findings were so far outside the findings properly open to a reasonable Tribunal on the material before it as to be perverse.The background to the appeal is that in 1987 Mr Sheridan was working as a Project Co -ordinator in Luton for Siemens Communications Ltd. In about February 1989 he became an Order Controller in the Sales Commercial Department and, as I followed from his written contribution, it was in 1990 that Siemens merged with GPT Business Systems Ltd (the company for whom he worked) as GPT Communication Systems Ltd, a Siemens GPT Company.On 27 October 1994 Mr Sheridan received an offer of secondment to the Strategic Business Development Department of GPT at Wellingborough. He was to join the NCC team, that was the National Code Change team, which was working in preparation for the change in national telephone codes due to take effect on 16 April 1995.The employment at Wellingborough was to run from 1 November 1994. By letter of 27 October 1994, the offer was made and the letter said:
"This transfer is initially a direct secondment onto the NCC team from 1 November 1994 - 30 April 1995 inclusive. We would anticipate that by April 1995 other major opportunities would arise which should provide you with further opportunity after the NCC secondment period. We will review your position within CSD during April 1995 which will of course be subject to the volumes of new business and associated projects in the Strategic Business Department.
In the unlikely event there will be insufficient work in CSD for you to continue employment within the Strategic Business Department a position will be made available to you from 1st May 1995 in the Sales Commercial Department in Luton."Mr Sheridan accepted the amendment to his existing contract imported by that letter and moved to Wellingborough. His Supervisor there was Mr Grearson, who was described as the Focused Project Manager at the Customer Services Division in Wellingborough.As the end of Mr Sheridan's initial period of secondment came to an end two lines of enquiry went ahead. Mr Grearson determined that, in the light of two prospective projects, there was sufficient work within his Customer Services Division to retain Mr Sheridan within the Division. One of those projects related to Electro Magnetic Compatibility, referred to in the papers as "EMC". That was one of the two projects Mr Grearson identified. A post for a Focused Project Controller at Wellingborough was, so the Industrial Tribunal found, advertised and Mr Sheridan was invited to apply.The confirmation of the offer of employment in that post was made by a letter bearing the date 27 March 1995. That, in all probability, as the Industrial Tribunal found, was dated March in error for April, that is to say, 27 April 1995. Mr Sheridan received that a few days later. Mr Sheridan, having had certain discussions and negotiations, accepted it by endorsing the written offer on 10 May. The job, the Industrial Tribunal found, was specific to the two projects identified by Mr Grearson and differed from Mr Sheridan's function whilst at Luton. There was thus a further amendment to Mr Sheridan's contract.The second line of enquiry was by Mr Sheridan himself, who got into touch with Luton to ask about returning to his former job. He was told that, due to re-organisation, the post which he had left there was no longer available to him. The Industrial Tribunal found, as a fact, that Mr Sheridan made that enquiry before signing acceptance of the offer for the post at Wellingborough.At some time after 10 May 1995, it appears in May and June, the employers came to the decision that a number of jobs within its various divisions had to be excised for economic reasons. In due course some 39 posts were identified as redundant.On 27 June 1995 the employer, through its Personnel Manager, Mr Williams wrote to Mr Sheridan in these terms:
"The company has been reviewing its organisation structure in order to ensure that the Company's business targets are met. As a consequence of this review a number of job functions within Customer Services Division are to be made redundant.
The purpose of this letter is to inform you that your job is at risk. To that end you are required to attend a meeting, with your manager Kerry Grearson and Les Williams, Personnel Manager, the details of which are as follows: ..."The letter then appointed a meeting for 1.00 pm the next day, 28 June at Wellingborough and the letter continued:
"As from Wednesday 28th June the Company will commence the consultation process with you.
As from today you will not required to attend Company premises and/or customers' sites, unless requested to do so."The Industrial Tribunal was told, and accepted, that the exclusion of Mr Sheridan from company premises was for security reasons and not intended to reflect adversely on him.Discussion took place on 28 June and was followed by a letter of 30 June, which contained these passages:
"Further to your discussions with Kerry Grearson and myself on Wednesday 28 June 1995, concerning the potential redundancy situation, it is with much regret that I have to confirm that should you not receive an offer of suitable employment, your employment with the Company will be terminated on 15 September 1995 by reason of redundancy.
As from 28 June 1995 there will be a period of consultation up to and including the 30th July 1995. From the 31st July your formal contractual notice of 7 weeks will commence and will end on your termination date of 15 September 1995.Every effort will be made to find you suitable alternative employment, both with GPT CSL and the parent organisations. You will continue to receive vacancy information during your notice period. If you attend any interviews within CSL, please keep us updated of the outcomes. In addition the Company will be organising a workshop to provide assistance in job search activities, details will follow. You are able to use Company facilities for the preparation of job applications/CV's if you require.During the consultation and notice periods you will not be required to attend company premises and/or customer sites. Also, during the consultation and notice periods your salary will continue to be paid as usual and you will continue to retain your other Company benefits."Then the letter goes on to deal with the various financial matters, which arise in these circumstances of projected redundancy.The decision to notify Mr Sheridan that his post was redundant had been taken by Mr Grearson, or rather by the Board on Mr Grearson's advice because the projects to which Mr Sheridan had been appointed had not generated the work that had been anticipated. The company had not looked beyond Mr Sheridan's post for its definition of a suitable pool of employees from which to select the employee to be made redundant, having adopted a policy of selection from a smaller pool as possible. Mr Sheridan was in reality in a pool of one. Mr Sheridan had no prior warning notification of what was in the air before the letter of 27 June.During the consultation period, the employer company circulated to Mr Sheridan and others affected by the redundancy exercise, a notice of possible alternative employment within the Siemens Group, of which GPT formed a part. Eleven other people found alternative employment within the Group. The Industrial Tribunal found that Mr Sheridan did not enquire for details of any of the posts, or express interest in them. The Industrial Tribunal found that Mr Sheridan was capable of filling some of the posts advertised by reason of his experience, but took the view that it was for the employer company to find him alternative employment, if such was available. The company's view was that it was for Mr Sheridan to notify his interest.In the chronology of events, Mr Sheridan went on a pre-booked holiday for two weeks from 15 July 1995. On 2 August 1995 Mr Sheridan's appeal hearing was held by Mr Thwaites, the Manager, Strategic Business Development. The Industrial Tribunal found that that meeting, as well as 28 June meeting, was adequately carried out and, in the light of that finding, nothing turns upon it.I have summarised the facts and, I claim it as no more than a summary from the facts as found by the Industrial Tribunal. The Industrial Tribunal directed itself to Sections 81 and 57 of The Employment Protection (Consolidation) Act 1978 . The Tribunal considered whether the employer had shown that Mr Sheridan was dismissed; whether the employer had shown the reason for dismissal and whether it had shown that that was a reason falling within Section 57(2) of the 1978 Act.The Industrial Tribunal then went on to consider, under sub-section (3) whether the dismissal was fair. As to that the Industrial Tribunal found:
"It is common ground that he was dismissed and the Tribunal so finds.
The Tribunal is satisfied that for economic reasons the Respondent found it necessary in mid-1995 to search for economies. These it identified as possible through the abolition of certain functions across the Respondent's various Divisions. As far as the Applicant was concerned, the Tribunal is satisfied that the requirement for the Applicant to carry out work of the particular kind which he was carrying out had diminished and was expected to diminish further thus satisfying the test for redundancy set out in section 81(2)(b) of the Act. There was clear evidence from Mr Grearson to that effect and it was not seriously challenged.The Tribunal accepted that the Applicant effectively found himself in a pool of one for the purposes of selection and that there were no relevant peers with whom the Respondent was under an obligation to group him. His function was specific and work relating to that function was diminishing."The Extended Reasons of the Tribunal continue:
"The Tribunal is satisfied that the Respondent carried out sufficient consultation with the Applicant although clearly he had very little warning as to the inception of that consultation or of the fact that he was 'at risk'. There was, as set out in the Tribunal's findings, considerable effort made by the Respondent to endow the Applicant with information and opportunity to find alternative employment within the Respondent company or associated bodies and it was not the fault of the Respondent that the Applicant failed to avail himself to the extent that he might have done of the information and opportunities offered. It was, in particular, unfortunate that he chose to go on holiday for half of the consultation period although the notice period was also open to him for the purpose of researching alternative employment with the Respondent. The Tribunal does not accept the Applicant's stated understanding that it was for the Respondent to find him alternative employment. The meetings on 28th June and 2nd August 1995 were, meanwhile adequately carried out given the circumstances facing the Respondent. The Tribunal rejects any suggestion by the Applicant that he should have been made privy to the Respondent's determinations during the formative stages of their decision-making process."
The Industrial Tribunal went on to make some adverse comment about the insensitive way (as they thought) in which the Respondent employer had dealt with Mr Sheridan in April 1995 and they alluded to the shock that the "at risk" letter of 27 June 1995, must have occasioned.The Tribunal concluded however, that those considerations did not assist the Applicant towards a finding of unfair dismissal. They dismissed his application. It is against that finding that Mr Sheridan has appealed.The first ground of appeal is that, in applying the test of redundancy set out in Section 81 of the 1978 Act, the Industrial Tribunal erred in law. Mr Sheridan points to his history of posts with the employer company. He argues that job descriptions of Order Controller and Focused Project Controller show much similarity between the two functions. Mr Sheridan submits that, although the Industrial Tribunal found that his job as a Focused Project Controller was specific to the work in the field of electromagnetic compatibility, and the evidence of the employer was that the requirement for Mr Sheridan to carry out work of a particular kind had diminished, the Industrial Tribunal nevertheless erred in limiting the enquiry to that. It said that on a proper application of the decision of the Court of Appeal in Cowen v Hayden Ltd [1983] ICR 1, the Industrial Tribunal should have looked at Mr Sheridan's wider contractual duties and considered whether the employer's requirement for employing Focused Project Controllers generally, had diminished.The second ground of appeal is that the Industrial Tribunal erred in accepting that it was fair and reasonable for the employer to place Mr Sheridan in a pool of one person only. Following through his first ground of appeal, Mr Sheridan submits that the employer should have decided what work he could have been required to perform under his contract and would thereby have established a wider pool. So Mr Sheridan submits that the Industrial Tribunal was wrong to find that the employer had acted fairly and reasonably.The third ground develops the same general point. In determining whether, for the purposes of Section 81(2), work of a particular kind that Mr Sheridan was carrying out diminished, the Industrial Tribunal should have looked at the type of work Mr Sheridan could contractually have been required to carry out and then determined whether there had been a diminution of such work throughout the entire group.Fourthly, Mr Sheridan submits that the Industrial Tribunal's decision was perverse. He relies on his first three grounds of appeal and submits that the Industrial Tribunal was wrong to prefer the oral evidence of Mr Grearson to that of the written material and, in particular, to the job descriptions for the position of Order Controller and Focused Project Controller and also, to the written evidence of Mr Sheridan's contract of employment.The fifth ground of appeal goes to the Industrial Tribunal's findings as to fairness of the selection procedure and Mr Sheridan points to three matters. He says there was an absence of an effective and proper consultation. There was an absence of any real effort to find Mr Sheridan alternative employment and there was a failure to place enough emphasis on the employer's conduct towards him in April 1995 when his period of secondment to Wellingborough was coming to an end.The grounds of appeal have been supported by a very full written skeleton argument and also by oral argument, courteously and capably presented on his behalf by Mrs Sheridan, his wife. The first difficulty about Mr Sheridan's first three grounds of appeal is that they raise points about the nature of the work he was employed to do that were not argued at least in any comprehensive way before the Industrial Tribunal, although the issue was clearly before the Tribunal. In its Notice of Appearance, the employer included this written passage:
"The new role, Project Controller (EMC) was also no longer required. This job was a unique role so there was no requirement to carry out a group selection process. Mr Sheridan was advised of this immediately and the normal consultation procedure was applied i.e. he was put at risk, efforts were made to identify any other roles during his notice period."
While Mr Sheridan now seeks to impugn the Industrial Tribunal's findings and approach, the evidence on this aspect, before the Industrial Tribunal, was manifestly within a small compass. Mr Sheridan is bound by the Industrial Tribunal's findings of fact. These matters can be established by reference to the Tribunal's Extended Reasons in these passages (referring to Mr Grearson in April 1995):"He determined that in the light of two prospective projects, one relating to Electro Magnetic Compatibility ("EMC"), the subject of a European Commission Directive, and one relative to the control of the tendering stage for the centralised operations of one of the Respondent's customers, there was sufficient work within the Customer Services Division to retain the Applicant within that Division. Accordingly a post for a Focused Project Controller, Electro Magnetic Compatibility, was advertised.The Applicant's new job as Focused Projects Controller was specific to the two projects identified by Mr Grearson as coming on stream and was different from the function which he had performed at Luton. The amendment to his contract placing him in his new post to that extent meant that his contract was different also.The decision to notify the Applicant's post as redundant had been taken by Mr Grearson in the light of evidence that the projects to which the Applicant had been specifically appointed were not generating the activity which had been anticipated such that he did not have enough work to do."On page 13 the Industrial Tribunal summarised the submissions:
"The Applicant principally submitted that the consultation process was grossly unfair.
For the Respondent, it was principally submitted that section 81 was satisfied by the Respondent's evidence, that is to say that the Applicant was redundant, his role having been identified as surplus to requirements."I have already referred to the Tribunal's findings and the finding of redundancy, which depended on the clear evidence from Mr Grearson, which was not seriously challenged.In seeking to raise a point of law Mrs Sheridan argued that Mr Sheridan's contract is in written form and cannot, in fact, be varied by oral agreement or understanding. The contract is in the bundle of papers. It refers to a position of Focused Projects Controller. Also in the bundle is a job description which contains this passage, upon which reliance is placed:

"SUMMARY OF MAIN PURPOSE OF JOB

To assist in the provision of a support capability for the major customer contracts undertakings of Strategic Business Development, including all CSL functions plus the relevant functions and departments of associated Siemens and GPT Companies."We reject the argument that it was not open to the Industrial Tribunal to look at, and find, what was the actual job Mr Sheridan was employed to do in the context of determining the reason for his dismissal and questions of fairness.The detail of the Industrial Tribunal's deliberations went to the thrust of Mr Sheridan's case that the finding of the redundancy process was grossly unfair and whilst Mr Sheridan is bound by the Industrial Tribunal's findings of fact, which cannot in the circumstances possibly be described as "perverse", it is appropriate to say a word about the decision of the Court of Appeal in Cowen to which I have already made brief reference.The report is, as I have said, at Cowen v Haden Ltd [1982] ICR 1. It is a case that turns on its own particular facts, as indeed was the Nelson case that was considered in it. It is a mistake to dwell upon the decision that is reported of the Employment Appeal Tribunal where the helpful guidance comes from the judgment of Cumming-Bruce LJ, when the case was in the Court of Appeal.The learned

Lord Justice said in the course of his judgment:

"The first question to be answered is: What particular work was the employee employed to do under his contract of employment? In the first period of employment from June 1977 to August 1978 the answer is to be given by reference to paragraph 1 of the written document entitled 'Terms and conditions of salaried staff'."
Lord Justice Cumming-Bruce then reviewed the progress of the employee's career and how he came to be a regional surveyor and then these words:
"The effect of the words: [ taken from the contract] 'He will be required to undertake, at the direction of the company, any and all duties which reasonably fall within the scope of his capabilities' was not to give the employers the right to transfer him from his job as regional surveyor to any job as a quantity surveyor in their organisation, but only to require him to perform any duties reasonably within the scope of his capabilities as regional surveyor."
Thus, the Court of Appeal looked to see the job that was being done in that case at the time of dismissal. That guidance is helpful in looking at the job description to which Mrs Sheridan has drawn attention and which I have already referred to.We have each, individually, and, indeed, collectively, searched through this case and the very full grounds of appeal in the skeleton argument, as well as the oral argument, to search for a material error of law or a perversity of finding of fact, in the sense of perversity that I have indicated, and we unanimously conclude that we can find no reason on this aspect of the appeal to interfere with the finding of the Industrial Tribunal.The second limb of the appeal goes to the consultation process. We must approach it on the basis, despite Mr Sheridan's argument, of a finding of a pool of one situation. The Industrial Tribunal found as a fact that that was reasonable. The Industrial Tribunal rejected Mr Sheridan's arguments, as to the absence of a redundancy procedure, as to the consultation process after 26 June 1995, as to the absence of real effort by the employer to find him another job. They dealt with those matters and their view of the meetings of 27 June and 2 August and we can find no reason to disturb the way in which the Industrial Tribunal dealt with them.The Industrial Tribunal also commented adversely on the employer's lack of sensitivity in the April 1995 period and the shock of the "at risk" letter of 27 June 1995. The Tribunal found that the employer did not wilfully deceive Mr Sheridan, but having made its adverse comments, the Tribunal concluded, quite properly, that those matters did not assist Mr Sheridan towards a finding of unfair dismissal.Furthermore, the Industrial Tribunal found that it was right for it to reject any suggestion, by the Applicant, that he should have been made privy to the Respondent's determinations during the formative stages of their decision-making process.We are not, for ourselves, sure that the employer imparted to Mr Sheridan on 28 June all that had been discussed with the Union MFS on the previous day. It is, of course, important that a non-union employee should be treated as fully as if a member of a union. However, this was a matter for the Industrial Tribunal on the evidence before them and it is not a matter on which we can properly make any finding.For the reasons I have given, this appeal will be dismissed.