Green v West Midlands Co-Operative [1998] UKEAT 95_97_0602

EAT
Green v West Midlands Co-Operative
[1998] UKEAT 95_97_0602 · 1998-02-06

JUDGE PETER CLARK :

This is an appeal by the Applicant before the Shrewsbury Industrial Tribunal, Mr Green, against that Tribunal's decision to dismiss his complaint of unfair dismissal against his former employers, the Respondent, West Midlands Co-operative Society Ltd, following hearings held on 19 July and 18 September 1996. Extended reasons for that decision are dated 3 December 1996.The Appellant commenced employment with the Respondent on 9 February 1976. At all material times he was employed as deputy manager of their Highley store.During 1995 a reorganisation took place, designed to lengthen the opening hours of the stores. As a result the post held by the Appellant at Highley disappeared, to be replaced by that of senior supervisor. The new post attracted a lower salary than that paid to a deputy manager was of lower status and involved different duties.The Appellant was informed of the proposed restructuring in early September 1995. He raised a grievance with the Respondent which was ultimately rejected.On 1 November 1995 the Respondent served 12 weeks written notice of termination of his existing contract, coupled with an offer of alternative employment as a senior supervisor at Highley. The letter continued:
"There will be one remaining option available to you on Monday 5th February 1996 which is that situated at our Tipton Food Store. This post if accepted would enable you to retain your present terms and conditions and again would attract any future annual wage awards."
Certain disciplinary proceedings then followed, leading to a final written warning dated 22 November 1995 in respect of the Appellant's failure to attend a meeting fixed for 17 November. That warning was later rescinded on appeal.On 4 January 1996 the Appellant wrote to the Respondent contending that the Notice given on 1 November 1995 amounted to a repudiatory breach of contract, which he accepted, with effect from 3 February 1996.The Tribunal found that he had been constructively dismissed. We think that the original employer's notice constituted a notice of dismissal. Either way, he was dismissed for the purposes of Section 95 of the Employment Rights Act 1996 .As to the reason for dismissal, the Tribunal found that it was not redundancy because, although the post entitled deputy manager had disappeared, it was replaced by a post of senior supervisor, carrying out similar work. They found that the Respondent had shown some other substantial reason for dismissal; namely the need to replace the deputy manager post with that of senior supervisor in order to meet changed trading conditions.Finally, reasonableness under Section 98(4) of the Act. The Tribunal found that there was consultation with the recognised Trade Union, and that the Appellant's grievance was gone through at some length. They found that three alternative positions were canvassed with the Appellant. The first was reasonably rejected by him, but that the other two were on the same terms and conditions as he had previously enjoyed, although there were differences to which we shall return. The Tribunal concluded that there was nothing else that the Respondent could realistically have done and that the dismissal was not unfair.

The Appeal

Mr Green first applied to adduce fresh evidence before us which was not before the Industrial Tribunal. That evidence consisted of a series of annual Branch Accounts for the Highley store for the years 1991 - 5, and witness statements of three people who were not called before the Industrial Tribunal. Directing ourselves in accordance with the principles identified by Popplewell J in Wileman v Minilec Engineering Ltd [1988] ICR 318, we concluded that this application fell at the first hurdle, namely, that the Appellant had failed to show that the evidence could not have been obtained with reasonable diligence for use at the Industrial Tribunal. He did not ask the Respondent for, nor seek an order for discovery of, the Branch Accounts, the existence of which was known to him before the hearing before the Industrial Tribunal; nor did he seek witness orders in respect of the three potential witnesses. Accordingly, we refused that application.Turning to the substance of the appeal, Mr Green advanced the following arguments.First, he submitted that the Tribunal was wrong in law not to find that the reason for dismissal was redundancy. He relied on a decision of this Tribunal in Safeway Stores Plc v Burrell [1997] ICR 523 . He contended that his job as deputy manager of the Highley store had disappeared. He was redundant. We cannot agree. The Appellant accepts that there was no reduction in the number of employees employed at the store on supervisory duties. The deputy manager post was replaced by that of senior supervisor, a job involving different duties, lower status and less pay. However, those factors do not determine the question of whether or not he was redundant. There was, as the Tribunal found, no diminution in the requirement for employees to do work of a particular kind, namely supervisory work. In these circumstances we reject his first ground of appeal.Next he submits that there was no evidence to support the Tribunal's finding that the Respondent had shown some other substantial reason for dismissal. Again, we cannot accept that argument. It was the Respondent's case, in evidence, that a reorganisation was necessary so as to increase opening hours in order to meet competition from other retail outlets. That involved deploying a team of supervisors. That was capable of amounting to some other substantial reason, in our view.Thirdly, he complains that the Tribunal failed to balance the advantage to the Respondent of the reorganisation, involving the removal of the deputy manager post, with the disadvantage thereby caused to the Appellant. We think it implicit in the Tribunal's reasoning that it carried out that balancing exercise but concluded that, in taking all reasonable steps to accommodate the Appellant by way of alternative employment, the balance did not tip in favour of a finding of unreasonableness.As to the alternative job offers, we bear in mind that the question for the purposes of Section 98(4) is not whether the Respondent made an offer of suitable alternative employment which was unreasonably refused by the Appellant (the test for disentitling an employee to a redundancy payment) but whether they took all reasonable steps to find him alternative employment.The Tribunal decided that the Respondent did so. It thought that in the post of administrative supervisor at Stourport, although an office job, the Appellant would have enjoyed the same terms and conditions of employment as before. Further, they treated the Respondent's letter of termination dated 1 November 1995, as including a further "offer" of employment. We refer to the paragraph in that letter, set out earlier in this judgment.Mr Green submits that the Tribunal was not entitled to treat that paragraph as amounting to an offer of alternative employment as deputy manager at Tipton. We think that is a wholly unrealistic interpretation of what is there written. The Tribunal's reading, contained in paragraph 7 of their extended reasons is, in our judgment, plainly permissible.Finally, he submits that the Tribunal's conclusion was perverse. We remind ourselves that that contention is a mountain for Appellants to climb. Mr Green remains in the foothills on the facts of this case.In all these circumstances we can discern no error of law in the Industrial Tribunal's decision and accordingly this appeal must be dismissed.