British Broadcasting Corporation v Farnworth [1998] UKEAT 1000_97_1307

EAT
British Broadcasting Corporation v Farnworth
[1998] UKEAT 1000_97_1307 · 1998-05-07

JUDGE LEVY QC :

By an application to an Industrial Tribunal dated 12th December 1996 Ms Rebecca Farnworth ["the Respondent"] claimed that she had been unfairly dismissed and that she was entitled to a redundancy payment on termination of her employment by the BBC. By its Notice of Appearance dated 24th January 1997, the BBC claimed that she was not unfairly dismissed and was not redundant. In both the Originating Application and the Notice of Appearance mention was made of contractual claims.The issues the parties were tried before an Industrial Tribunal sitting at London (North) on 27th March 1997 and 14th May 1997. In a judgment promulgated to the parties on 1st July 1997 the unanimous decision of the Tribunal was that the Respondent was dismissed by the BBC on the ground of redundancy and that such dismissal was fair. From the first part of that decision the BBC appealed by Notice dated 6th August 1997.This appeal was heard on 7th May 1998, but argument ended at such a late hour that it was not possible to deliver judgment that day.Mr Bowers QC (who had not appeared below) appeared for the BBC on the appeal. The Respondent was represented, as she had been below, by Mr Segal.Having recorded in paragraph 2 of the Extended Reasons the claim by the Respondent was dismissal on the ground of redundancy and by the BBC for some other substantial reason, the stances of the parties being determined by the different economic consequences, the Industrial Tribunal in paragraphs 3 to 13 made appropriate findings of fact. From the Notice of Appeal, it is not on those findings that the BBC complain, but rather from the conclusions drawn from them. We therefore reproduce the facts from which the conclusions were drawn."3 The facts as we find them (and there was little difference between the parties on these) are set out so far as we can in chronological order are as follows. The Applicant began working with BBC Enterprises Limited (a subsidiary of the Respondents) as a Secretary on 30 July 1990. She started to work as a Radio Production Assistant on 30 July 1990. She stated to work as a Radio Production Assistant on 2 July 1991 working for the Respondents "on attachment" for 6 months. That ran from 2 September 1991 until 28 February 1992. In January 1992 she was appointed as a Researcher but it was a condition of that employment that she gave up her substantive post in BBC Enterprises and accepted a fixed term contract terminating on 26 June 1992. That attachment as a researcher on a programme "Education Matters" was extended until 31 December 1992, then until 31 March 1993. Then she had a one year fixed term contract at a salary which included the 15% short term contract premium. The post was with Continuing Education and Training Radio. On 1 July 1993 she was promoted to Acting Radio Producer and in that position she had a further one year contract from 1 April 1994. During the year, in December 1994 she was appointed to the substantive post of Radio Producer and then on 1 April 1995 she had her last one year's fixed term contract, as Radio Producer, Continuing Education and Training, ending on 31 March 1996.4 To complete the picture that contract was extended from 31 March 1996 to 28 June, then to 27 September, then to 6 October, then to 18 October and finally to 21 October, after which it was not renewed.5 In August 1995 Ms Marilyn Wheatcroft joined the Respondents as Head of Production in Education and as such became the Applicant's line manager. Under her, Mr Michael Greenwood was appointed the Commissioning Executive in the Education (Adult Radio) Department of the Respondents in November 1995. On joining he had to assess the production capability in the department as there was then a greater need for production to focus on producing the right programmes for the right people and his department need to put forward proposals for and to produce only high quality programmes that were likely to be commissioned, and having been commissioned, to be re-commissioned. The majority of the producers in the department were already working on projects of a continuing nature. Those who were not so attached were Kathryn Morrison, Claire Jones, and the Applicant, all of whose contracts were due to end at the end of March 1996.6 In January 1996 Mr Greenwood met the head of Commissioning and the Controller of Radio 4, with Sally Kirkwood and Kathryn Morrison who were then the two producers of Education Matters. He was told that Radio 4 wanted the programme to develop a more journalistic focus, to be more consumer led and for the programme to have more authority and in particular that a stronger presenter was needed. It was decided to continue with the same producers for a while and to try to rework the programme with them, but despite two changes in presenters in a short time, it became clear during the Summer of 1996 that the changes that were needed were not being achieved. At an early stage Mr Greenwood decided that none of the three producers who had been involved in the programme would be likely to achieve what was needed.7 The Applicant had been involved with the programme Education Matters for some time both as researcher and producer but she left it to go on attachment to Radio 4 between April and October 1995. Shortly after Mr Greenwood's appointment, he met the Applicant, and their respective recollections of what was then discussed varied. We prefer that of Mr Greenwood to the effect that the Applicant indicated that she did not want to work indefinitely on Education Matters and, having been on attachment, she had become separated from the programme with which she had had the strongest links in the past.8 Mr Greenwood realised that they may well have to recruit a new producer for Education Matters and that as Claire Jones and Kathryn Morrison both had commissions which were due to be worked on, and were due to work on social action programmes, the Applicant was the producer whose services they could not be sure of retaining unless the amount of work increased - and unfortunately she herself had not contributed to this with ideas which could be converted into commissions. In consequence the Respondents in January 1996 thought that they could not offer the Applicant any more than a three months' extension (April May and June 1996) but they hoped that during that time they would either receive extra commissions or that the Applicant would have an idea which would lead to a commission or that somebody else would gain a commission with the Applicant could work on.9 Early in 1996 the Applicant worked on and produced a single programme, Sons and Mothers; during April and May she again was a producer for Education Matters. On 11 June there was a meeting of senior commissioners (including Ms M Wheatcroft) with the Applicant for an output review of Education Matters when the Applicant was quite heavily criticised.10 By mid May it was apparent that there would be work for the Applicant producing Student Choice and possibly a Radio 2 pilot (and the Applicant also had some leave to take) and in consequence she was given a further 3 months' extension until 22 September. Meanwhile in July it was decided to advertise for a new more experienced producer for Education Matters. The advertisement appeared in the BBC internal publication Aerial on 21 July; during August Claire McGinn was appointed. The Applicant saw the advertisement but did not apply, possibly because of the criticism at the meeting on 11 June. Mr Greenwood said that neither she nor the other two previous producers would have been appointed.11 Two more weeks' as producer of Night Talk while the regular producer was on leave became available, and that led to the extension until 6 October. The next extension was to allow the Applicant to have time for any possible training and also to look for other work, and then the final extension was to enable the Applicant's grievance to be heard.12 On 6 August the Respondents wrote to the Applicant saying that they could not offer an extension to her contract beyond 18 October and that her employment with them would terminate at that date. Despite this, however, Mr Greenwood made enquiries with the Head of Magazine programmes at Radio 4 and found that the Applicant could be deployed on two programmes for between 6 weeks and 2 months. It was on this point that a second discrepancy in the evidence emerged. We find that Mr Greenwood told the Applicant about this, but that, as she said, she had lost confidence by that stage in Mr Greenwood and preferred to pursue other work for which she had been head-hunted by Barraclough Carey North and for which she had received a contract by 20 August, the date of Mr Nicholson's telephone call to her - and at that stage she did not think it right to let them down.13 In August and September there were discussions between the Applicant's union and the Respondents' personnel department on whether the non-renewal of the Applicant's contract would be on the ground of redundancy, and on 21 October there was a grievance hearing at which the issue was whether the non-renewal was for redundancy - which provided the higher compensation, as opposed to a terminal payment. The Respondents said frankly that there were debatable issues in law on this point on which they needed to take further advice, and as the matter had not been resolved by 12 December the Applicant's union issued the Industrial Tribunal application."In the first paragraph of the Extended Reasons the Industrial Tribunal had set out clearly what was the issue for decision, namely was the Respondent fairly dismissed(1) on the ground of redundancy or(2) for some other substantial reason or(3) on the ground of incapacity or(4) the possibility that she had been dismissed for no admissible reason at all.In paragraph 14, the tribunal considered whether she was dismissed because of incapacity. Having looked at matters which they considered relevant to capacity, they came to the conclusion that there was no question of the respondent's short term contract not being renewed on this score. As we have understood Mr Bowers skilful and erudite submissions, this finding is not challenged.On the question as to whether the dismissal was for redundancy, in paragraph 16 of the Decision the Tribunal said that they had had regard, as was obligatory, to the provisions of s. 139(1)(b) of the Employment Rights Act 1996 ["the 1996 Act"] and the decision in Safeway Stores plc v Burrell [1997] IRLR 200 . For the purposes of their determination, the material words of s. 139 of the 1996 Act are:
"(1) ... an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to-
...(b) the fact that the requirements of that business- (i) for employees to carry out work of a particular kind ...

have ceased or diminished or are expected to cease or diminish."

In paragraph 24 of the Safeway decision the Employment Appeal Tribunal said:
"Free of authority, we understand the statutory framework ... involve a three-stage process:
(1) was the employee dismissed: If so,(2) had the requirements of the employer's business for employees to carry out work of a particular kind ceased or diminished, or where they expected to cease or diminish? If so,(3) was the dismissal of the employee ... caused wholly or mainly by the state of affairs identified at stage 2 above."Having looked at various authorities, the Employment Appeal Tribunal conclude that there are indeed three questions to be asked. They then said at paragraph 70:
"(1) There may be a number of underlying causes leading to a true redundancy situation; our stage 2. There may be a need for economies; a reorganisation in the interests of efficiency; a reduction in production requirements; unilateral changes in the employees' terms and conditions of employment. None of these factors are themselves determinative of the stage 2 question. The only question to be asked is was there a diminution/cessation in the employer's requirement for employees to carry out work of a particular kind, or an expectation of such cessation/diminution in the future [redundancy]? At this stage it is irrelevant to consider the terms of the employee's contract of employment. That will only be relevant, if at all, at stage 3 (assuming there is a dismissal).
(2) At stage 3 the tribunal is concerned with causation. Was the dismissal attributable wholly or mainly to the redundancy? ..."A number of observations were then made.Paragraphs 14 and 15 are the crucial paragraphs in the Industrial Tribunal's Decision. Paragraph 14 concludes that no question of non-renewal arose on the grounds of the Respondent's capacity - for the reasons there given. The Tribunal recognised that the Respondent did not have the right mix of skills and experience required for a new producer at Education Matters, but, as she was a competent producer, they did not think that material. This finding was subject of much criticism by Mr Bowers who submitted that the case raised the question of the full definition of the phrase "work of a particular kind" used in the section. He took us to a number of decisions, including Vaux & Associated Breweries Ltd v Ward [1968] 3 ITR 385 , Kleboe v Ayr County Council [1971] 7 ITR 20 , Pillinger v Manchester Area Health Authority [1979] IRLR 430 (which Mr Bowers submitted was the closest to the present case) and Hindle v Percival Boats Ltd [1969] 1 WLR 172 to support his submission that if A replaced B in a different position there was no redundancy.Mr Segal's response to this submission was to refer us first to the passage in Harvey on Industrial Relations and Employment Law at paragraphs E[814.06] to [814.09], where the learned editors submit that the decision in Safeway clearly shifts the focus from the work done by the employees who carry out work of a particular kind to the employees who do that work, but recognise that the question remains "what work"? In paragraph [814.07] the suggestion is mentioned that the significance of reference to 'work of a particular kind' is to ensure that employees are entitled to a redundancy payment if they are replaced by other employees with different skills. Paragraph [814.08] refers to:
"... the somewhat forgotten case of Murphy v Epsom College [1984] IRLR 271 , [1985] ICR 80 CA. In that case, the College decided to replace a plumber who could do the work of a heating engineer with a heating engineer who could do plumbing work. The number of employees remained the same ... . The work remained the same. But the Court of Appeal held that the dismissal was by reason of redundancy because the business needed fewer plumbers; a plumber (one specialist skill) had been replaced by a heating engineer (different specialist skill).
Relying on Murphy Mr Segal submitted that here the post of a Mark '1' producer of educational programmes for the BBC was replaced by a Mark '2' producer of such programmes, but both performed the task of producing an educational programme.Mr Bowers submitted that the suggestion in Harvey that there is a redundancy situation where the business needs fewer of that particular kind of employee is wrong. We, with respect, do not agree with him.As to the cases cited by Mr Bowers, Mr Segal has taken us to other passages in Harvey where the learned editors explore the meaning of 'work of a particular kind' at paragraphs E844 et seq.The first paragraph of the text to which Mr Segal drew our attention reads:
"There is a redundancy situation where the requirements of the business for employers to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish. So an employee is redundant as defined when he is dismissed because his particular specialism is no longer required, even if he is replaced by an employee with a different specialism so that, overall, the requirements of the business for employees have not ceased or diminished."
In the succeeding paragraphs, under the respective heading "Specialist skills", "Skill not person" and "Skill not qualifications" by reference to reported cases, the textbook suggests conclusions.Under the first of these headings, the textbook suggests that it is a question of fact for the tribunal to determine whether an employee's work is sufficiently specialised for him to be regarded as different from other comparable employees.Under the second of these headings, the textbook states:
"The statute enquires what are the requirements of the business for employees to do work of a particular kind. The personal attributes of the employee are not therefore relevant except in so far as they reflect upon his ability to perform the relevant tasks."
The text is illustrated by the decisions in Vaux (Supra) Loudon v Crimpy Crisps Ltd (1966) 1 ITR 307 .Under the third, by reference to Pillinger (Supra) and Kleboe , the textbook suggests that the cases deny the relevance of the employee's qualifications as such, except in so far as they imply special skills, attributes or knowledge.Mr Segal, in our judgment correctly, submitted the textbook correctly stated the law in these passages. As the first question was resolved against the BBC by the Industrial Tribunal on the evidence they heard, Mr Segal submitted it was a finding which we should not overturn unless we were satisfied it was perverse. We were not so satisfied. On the second, the Tribunal having concluded on the evidence that the capacity of the Respondent was not in issue on the facts, Mr Segal made a similar submission, which we also accept. As to the third, Mr Segal pointed out that in Pillinger , the finding was not a redundancy because Mr Pillinger's replacement did exactly the same work as did Mr Pillinger, and accordingly, there was no redundancy because he had been dismissed for some other substantial reason. Here, the Tribunal looked at the position in August 1996 when Claire McGinn was not appointed to do the same work as had been done by the Respondent. They made a finding:
"15 ... We decide that there are different levels of producer depending on experience and ability, in the same way that there are different levels of teachers, and that the [ BBC ] need a varied range. When Claire McGinn was appointed clearly the [ BBC's ] need for as many producers at the Applicant's level had diminished or was likely to diminish ..."
In the light of the facts as found, in our judgment this is a conclusion the Tribunal was entitled to reach having asked itself the correct question under the section and Safeway .Mr Bowers submitted that if that question was resolved against the BBC, the decision of the Industrial Tribunal was flawed because it failed to consider sufficiently or at all whether the dismissal of the Respondent was caused wholly or mainly be the state of affairs identified. Mr Bowers pointed to findings made in paragraphs 7 and 12 of the decision. In paragraph 7 of the Extended Reasons the Tribunal found that of the three original producers on Education Matters, the contract of the Respondent was the only one not to be renewed. In paragraph 12, before the Respondent's employment with the BBC ended, she had received a contract from a third party whom she did not think it right to let down.In our judgment, the point made by Mr Bowers with reference to paragraph 7 is not material as to whether there was a redundancy. In our judgment the answer to the point made by reference to paragraph 12 is found in paragraph 15 of the Decision, from which we infer that the decision not to renew preceded the turning down by the Respondent of the alternative work offered. The Industrial Tribunal said in paragraph 16 that they had regard to the provisions of section and the decision in Safeways . In these circumstances we infer from the decision a finding by the Tribunal that the dismissal of the Respondent was caused wholly or mainly by the state of affairs which they had identified in paragraph 15 when they were considering stage 2 of the three stage test identified in Safeway .In our judgment, on the facts as found, the Industrial Tribunal asked and answered the questions of law which arose in a way which was appropriate.We thank both Counsel for the assistance they have given us in their submissions on this appeal. In our judgment on that facts as found, the Industrial Tribunal were entitled to reach the conclusion it did. Accordingly, the appeal fails.