Szeto v Sims Portex Ltd [1998] UKEAT 431_98_0105

EAT
Szeto v Sims Portex Ltd
[1998] UKEAT 431_98_0105 · 1998-05-01
MR JUSTICE LINDSAY : We have before us the appeal, by way of a preliminary hearing, of Mr Peter Szeto in the case Szeto v Sims Portex Ltd . Sims Portex Ltd, this being a preliminary hearing, have, of course, not been represented before us, but Mr Szeto has appeared before us in person and has addressed us with moderation and skill.The appeal is against the unanimous decision of the Industrial Tribunal promulgated on 29th January 1998. It was a decision of the Industrial Tribunal at Ashford, under the Chairmanship of Miss V G Wallis. The unanimous decision of the tribunal was that Mr Szeto was fairly dismissed by the respondent Company, his application therefore failed and was dismissed. His application was one of unfair dismissal, his employment having been from 10th July 1995 to 1st August 1997.The background is that the Company was, in June 1997, looking for volunteers for redundancy. It indicated to its employees as is found in Mr Szeto's IT1 (page 13 of the bundle). Notice was given to employees as follows:
"Where any employee is declared redundant, the Company will allow a 2 week period of consultation during which alternative opportunities within SIMS Portex of Smiths Industries Group will be considered. Where an individual is willing to relocate, the Company will notify all other Group companies of the individual's details and availability."
At another section of the indication to employees it said:
"External career counselling will be provided for those seeking such help by an external organisation agreed by the Company."
Having read such a letter or notice given to employees and signing it as read, Mr Szeto put his name forward for voluntary redundancy.On 17th July 1997 he was told by a Mrs Howard, the Company's Personnel Operations Manager, that his name had been accepted for redundancy. What he says in his IT1 is this:
"On July 17 1997, the Applicant was informed by Mrs B D Howard, the Respondent's Personnel Operations Manager, that the Applicant's volunteer had been accepted and that the Applicant was to be dismissed by reason of redundancy on August 1 1997."
His claim was that thereafter Mrs Howard declined to consider alternative employment for him, and that he had thus been misled by the Company's previous indications in its letter. The way he makes the complaint is this:
"The Applicant was asked to sign a letter acknowledging that. After signing the letter, the Applicant raised the issue of alternative opportunities with SIMS Portex and other Smiths Industries companies, but was told by Mrs B D Howard that since the Applicant volunteered to go, the Company was not obliged to help. She said, "you volunteer, that's a different ball game." The Applicant was misled to believe that that was the case and did not say anything to anyone else. Instead, tried to concentrate on finding a job with his own effort."
His complaint continued:
"It is submitted that the Respondent had not taken one single reasonable step to seek alternative employment for the Applicant, nor had passed on the details of the Applicant to other Smith Industries companies, nor had arranged any external career counselling."
In the circumstances and because no agreed redundancy procedure had been applied to him, his dismissal, he said, was unfair.The Industrial Tribunal does not mention any evidence that Mr Szeto had in fact been misled into thinking that the Company would consider alternative employment for him or circulate his name if he accepted voluntary redundancy, nor does the Industrial Tribunal mention any evidence that the Company had set out to mislead either Mr Szeto or its employees generally. But let it be assumed in Mr Szeto's favour that he expected that the indicated provisions would apply even in the case of a voluntary redundancy. Even so, nothing suggests that the Company would act without some indication or request from the employee. There would be no point in considering alternative employment for Mr Szeto if he had not given some indication that he would or might want it. The alternative employment, for example, might be in another place and he might not wish to move, or it could require skills of a kind that he did not have and it could be that he could not or would not modify his trade or skills. Some indication would be desirable, indeed necessary, on the employee's part that he did indeed wish to be considered for alternative employment elsewhere. As to career counselling, the letter that he was given, along with other employees, was that it would be for those seeking such help. One had to seek it in order to obtain it. As to alternative employment involving relocation, the Company could not expect a willingness to relocate without it being indicated to exist.On this point the Industrial Tribunal heard evidence and came to a conclusion on the evidence. They accepted evidence given on the Company's behalf. They said this:
"14 ... He [ Mr Szeto ] was concerned that he had not been offered any help in finding alternative employment within the group of companies associated with the Respondent, nor had he been offered any career counselling. We accept the Respondent's evidence that he had not raised these matters during his notice period. If he had raised them, whilst it was the company's argument that these types of assistance were only available for those who were made redundant compulsorily, but if a volunteer made a request then that assistance was also provided to them, as had happened in one other case. Consequently, had he asked, that assistance would have been provided to Mr Szeto."
Even assuming in his favour that Mr Szeto had been led or had misled himself into thinking that the Company's indicative letter would apply to him even if the redundancy was voluntary, then even so, there was no unfairness involved in his dismissal because even on that basis he would have had to indicate to the Company, before complaining of a want of assistance or a want of consideration on its part, that he, indeed, wanted assistance or wanted alternative employment to be considered for him. Yet, he gave no such indication to the Company. There is no evidence that he gave it and the finding that we have just cited is that he did not raise the points during the notice period. Moreover, if only he had raised the points, then the finding of the tribunal on the evidence is that he would have received the very assistance which he thought he would have been entitled to. So, even if there was some lack of clarity in the letter that the Company put before its employees (and that itself is not clearly demonstrated to us) then that unclarity led to no adverse consequences other than such that Mr Szeto brought upon himself by his not inviting his name to be considered for alternative employment and by his not asking for career counselling. In so far as his Notice of Appeal relies on the construction of the Company's letter to its employees, we therefore see no prospect of success on his part.But he does have other points.One of them is that after negotiations with the union the Company withdrew its request for voluntary redundancies. Therefore, he says, the existing request for voluntary redundancy that the Company had received had been "terminated by the Company" and, therefore, he says, they could not thereafter be accepted by the Company having been terminated.This seems to be based on the passage in the reasoning of the Industrial Tribunal that one finds in paragraphs 9 and 10 of the extended reasons. What is said there is this:
"9 ... The company's view was that until the new shift system was sorted out, no voluntary redundancies should take place from the Moulding Department until the number of staff needed was clarified. As a number of employees had volunteered for redundancy, the union wanted the company to proceed with those volunteers and said that it would withdraw co-operation if that request was not acceded to. After some negotiation, it was agreed that the volunteers for redundancy could continue with their applications and the leaving date of 1 August 1997 would be honoured. However, they would all be given the option to extend their leaving dates to stay on to help to introduce the new shift system.
10 On 14 July, Mrs Howard spoke to Mr Szeto, and explained the position to him. He said that he would rather leave on 1 August 1997. Mrs Howard therefore prepared a letter for him setting out his redundancy entitlement and she went to see him on 17 July, gave him the letter and went through the contents with him."Thus the position is that Mr Szeto had put his name forward as a volunteer for redundancy; there was no finding that there were no true redundancies; it was agreed that the existing volunteers could continue to be regarded as having applied for redundancy; the position was explained to Mr Szeto; he persisted with his voluntary application; and he signed a letter acknowledging his redundancy.As we see it, his request for redundancy was not, to use his word "terminated". He did not withdraw it but he reaffirmed it and the Company acted upon it and he acknowledged his redundancy in writing. On this point, his Notice of Appeal says:
"5. ... Having found that the Company has terminated the request for volunteers, the Tribunal has failed to consider such issues."
But that is not a point of substance. There was no finding that the Company had terminated the request for volunteers or that Mr Szeto's request was withdrawn. The opportunity was given for reconsideration, and there was no finding that there was no true redundancy. The matter was put to Mr Szeto for reconsideration. Mr Szeto reaffirmed his wish to be regarded as redundant, and so the first part of that sentence, having had no substance, the second part does not apply - "the Tribunal has failed to consider such issues" - because no such issues were raised properly for consideration.Another point that the Notice of Appeal takes is this:
"6. ... It is respectfully submitted that the employer cannot claim that the dismissal of an employee by reason of redundancy is fair because of the pressure from trade union. Again, the Tribunal has failed to recognise that."
But paragraph 9, which we have just cited, does not hold that there was no need for redundancy. What it said was that:
"...The company's view was that until the new shift system was sorted out, no voluntary redundancies should take place from the Moulding Department until the number of staff needed was clarified. ..."
That is not a holding that there were no need for any redundancies at all. The latter part of Mr Szeto's submission is a consequence of the first, and, if the first fails, then the second is left without any substance.Yet another point taken by Mr Szeto is this:
"7. The Tribunal asked itself in paragraph 25 of its judgment, whether an employer should go through the same procedural steps for a volunteer for redundancy as in the case of compulsory redundancy. The Tribunal concluded that the employer did not need to. It is respectfully submitted that the Tribunal has made an error of law here. The law does not discriminate voluntary redundancy from compulsory redundancy. The law does not even distinguish the two."
What the tribunal held on that subject - we are looking at paragraph 26 of their reasons - is this:
"26 On balance, we concluded that the employer did not need to follow these steps where an employee volunteers for redundancy. Seeking volunteers before embarking on compulsory redundancies, is a matter of good industrial relations and would come about where the company has consulted with staff and shown that there was a need for volunteers. There would be no need to apply a selection criteria for volunteers, other than to assess their applications in the light of the requirement of the company to retain relevant skills."
We cannot fault the Industrial Tribunal's reasoning on that point.What Mr Szeto says is this:
"8. ... volunteers are still entitled to redundancy payment provided that their volunteers are actually accepted by the company. Likewise, the volunteers are still entitled to be considered for alternative opportunities. This makes good sense in regard to industrial relation practice, in that, the employer gets the redundancy it needs, and the volunteer moves on to an alternative opportunity within the same undertaking, should any vacancies arise during the period of consultation, or the volunteer moves to an alternative opportunity with an associated company. It is respectfully submitted that the law recognises that and does not prejudice volunteers and deprives them their to be considered for alternative opportunities."
That point, it seems to us, leads nowhere. Given that the Industrial Tribunal held on the evidence that if only he had bothered to ask for assistance he would have got it, as had happened to a volunteer in another case.Mr Szeto has other more minor complaints as to pay and other relatively minor matters in his Notice of Appeal. But those complaints were made good.So far as concerns unfair dismissal, we are able to detect in the Notice of Appeal and on a study of the extended reasons of the Industrial Tribunal, no error of law in what seems to us careful reasoning and material findings of fact. The Industrial Tribunal concluded at its paragraph 24:
"We concluded that the reason for the dismissal was redundancy because it is now settled law that in cases where an employee volunteers for redundancy there is still a dismissal"
In paragraph 28 they said:

"Consequently, we find that the dismissal was fair in all the circumstances."

We find no error of law - we emphasise of course that is alone what we are concerned with - in the decision of the Industrial Tribunal. Accordingly, at the preliminary stage we think it right to dismiss Mr Szeto's appeal.