Banks v Samuel Lewis Housing Trust Ltd [1999] UKEAT 1119_98_2501

EAT
Banks v Samuel Lewis Housing Trust Ltd
[1999] UKEAT 1119_98_2501 · 1999-01-25

JUDGE C SMITH :

This is an application on behalf of Mr Banks for leave to proceed to a full hearing of his appeal against a decision of the Tribunal held at London North on 24 June 1998 - as stated in the decision although it is not quite clear how many days there were for this hearing - of which extended reasons were sent to the parties on 10 July 1998: whereby the Industrial Tribunal held that the Applicant, Mr Banks, had been fairly dismissed on the grounds of redundancy or, alternatively, on the grounds of some other substantial reason, namely that of a business reorganisation; that was the unanimous decision of the Industrial Tribunal.We have reminded ourselves that Mr Banks only has to show an arguable ground of appeal to be allowed to proceed to a full hearing of his appeal. We have had helpful submissions from Mr Brown along the lines of his grounds of appeal, all of which we have carefully considered. Looking at the decision it is apparent that the Applicant had held the position of senior estate manager, having been based at the Respondents' Whitechapel offices, and that his employment had been terminated on the grounds of redundancy on 31 January 1997.The Industrial Tribunal made very careful and very detailed findings of fact, particularly in paragraph 4. We note that the Tribunal set out the witnesses that it had heard on each side and the representation in paragraph 3 of their decision. They record there that they had heard evidence from Mr Martini as well as the Applicant on the Applicant's side. They had heard a number of witnesses: a personnel director, an area manager and a London regional director - all on the side of the Respondents, Samuel Lewis Housing Trust Ltd. So there is no doubt that there was a great deal of evidence before the Tribunal and it is quite clear that was a substantial conflict of evidence - we will come to that shortly.The Tribunal made careful findings of fact with regard to the evidence they had heard and they set those all out in paragraphs 4(i) through (xv). They really set out the whole history of the new structure which came in in October 1995, as introduced by the Respondents' committee of management, the nature of the meetings that were held with the staff and the focus groups relating to all of that, particularly in sub paragraphs 4(i) to (vii). It is to be noted that 4(viii) they found that
"The Applicant... decided that he did not wish to participate because he was too busy with other matters. This was a matter for him to decide."
Then, after that period of consideration of the proposed restructuring, there came a time when staff meetings were held which the Tribunal found was by the end of October and November 1996 and then (although the date is wrong) it is clear from sub paragraph 4(x) that on 4 November 199[6], Mr Rosser produced the 'Proposed London Structure'. Included within that was the reduction of area managers from five to four and the new role of "Estate Manager". So this was the new post that was of direct relevance to the Applicant's position because he had been senior estate manager.Then the Tribunal went on to find that that was the commencement of the consultation period and they refer to the letter that was sent to the Applicant dated 4 November 1996. The Tribunal quote from that letter at 4(ix):
"I am writing to confirm your employment position within the group as you know the position of Senior Estate Manager has been deleted in the new structure and you are therefore in a redeployment/redundancy situation. The group has a responsibility to consider you for redeployment. As you are aware a new category of post has been introduced... that of Estate Manager. These posts are substantially (at least 25%) different..."
The employers then notified Mr Banks that there was to be external advertising of that post. Then there were other important passages in the letter which the Tribunal noted. But again, the reaction of the Applicant was - with respect to him - on the findings of the Tribunal, negative in the extreme. He is recorded by the Tribunal, as a finding of fact, as stating that he did not think the new job would work, he was not interested in applying for that job, he was looking for promotion. That was really his approach and it ended up with him applying for the position of an area manager - which was a more senior post - and not being appointed, and then invoking the grievance procedure. It was in those circumstances that, at sub-paragraph (xv), the Tribunal found that his employment ceased, on redundancy terms, at the end of January 1997.It is against that background that the respective submissions are carefully set out by the Tribunal at paragraphs 5 and 6. We need not rehearse those. It is clear that the arguments that are now being put forward by Mr Brown, as he very fairly accepted, were really being put forward in exactly the same terms to the Tribunal. He submitted that there had really been no change. That was at the heart of the submission, that the position of the Estate Manager in the old and in the new structure was essentially the same. Whereas it was the Respondents' case that there were real and important differences. And it is clear that those were set out by the Respondents, who had Counsel representing them, at paragraph 6, particularly there was a different responsibility - so it was submitted on the detailed evidence - for the way in which budgets were set and the role of the estate manager in that, and that there was a different disciplinary responsibility; those were the points being made.A major point that is being submitted to us is that the Tribunal did not address a matter as to whether there was in fact any distinction between the old job and the new in the sense that apparently it was being maintained by the Respondents that the new estate manager would have to be concerned with the maintenance responsibilities on the site whereas there was some evidence, given by Mr Martini, to the effect that that was not the position; that the new estate manager was not being required to carry out the maintenance task because, the true position was, according to the evidence of Mr Martini, that the new estate manager did not carry out those maintenance tasks, they were carried out by customer service managers. Serious criticism is made of the Tribunal's apparent failure to resolve that conflict.In our judgment the Industrial Tribunal, in this particular case, plainly found detailed facts - as we have already said - and they reached a conclusion at the end of the day, as they set out in paragraph 11 of their decision, having considered what is now the leading case on Redundancy Law, Safeway Stores Plc v Burrell , they concluded that there was a redundancy situation. In our judgment there was a wealth of evidence supporting that conclusion. Although, no doubt, the Applicant regarded as of considerable importance the issue as to whether the work of managing the estates was or was not done by the new estate manager, in our judgment it is plain that that was only one of a whole range of issues which the Tribunal had to consider and which, in our judgment, they properly considered. So we find that there is no arguable point of law on that particular ground.Indeed, we have reached the conclusion here that what the submission really comes to is an impermissible attempt to re-open issues of fact which have already been properly determined by the Industrial Tribunal adversely to the Applicant. We note further that there was here, on the Tribunal's findings of fact, plainly a business reorganisation, a business restructuring. Whatever the precise position may have been on a point by point comparison of the new "Estate Managers" job with the old "Senior Estate Manager's" job there plainly was a substantial reorganisation of the Respondents' overall business structure. So, in our judgment, the Tribunal were fully entitled to reach the alternative conclusion that they did in paragraph 13.They put the matter in this way:
"Although the Tribunal has concluded that the Applicant's employment was terminated fairly by reason of redundancy, it has also had regard to the Respondents' alternative argument that if the Applicant was not redundant then his contract of employment was terminated fairly for some other substantial reason being that of a business reorganisation. The Tribunal reminds itself that it is not for it to decide how it would have reorganised the Respondents' business or how it would have restructured it and having done so the Tribunal is satisfied that in the latter part of 1996 and the early part of 1997 the Respondents had good and genuine business reasons for implementing a structural reorganisation essential for the running of its business and which reorganisation was carried out following consultation with its workforce during the period July to October 1996 prior to implementing the changes consequent thereon from the beginning of November 1996."
In our judgment that reasoning is beyond criticism. It is based on clear facts found by the Tribunal justifying their conclusion. It is based on facts which amply justify a finding that if it was some other substantial reason it was a fair 'some other substantial reason', within section 98(4) of the Act. So, for those reasons and, in our judgment, as there are no realistic prospects of any of the grounds of appeal succeeding, despite the forceful arguments of Mr Brown, we have to conclude that this application must be dismissed.

ADDENDUM

Mr Brown has rightly pointed out that there is an argument in the Notice of Appeal, at paragraph 3 of the Grounds of Appeal, which he did not really lay any emphasis on at all in his earlier oral submission to us but, of course, he rightly points out, it is contained in the Grounds of Appeal and therefore we ought to deal with it. We note that there is a submission that the Industrial Tribunal erred in law in concluding that the Applicant's contract of employment had been varied by the document entitled the "Staff Handbook" and that the Applicant had accepted the variation. It is submitted that that is a perverse decision since the handbook was no more than a "user friendly" summary of the terms and conditions. It is submitted that in some way the Applicant was misled and was unaware of the variation. It is then submitted that, since he continued to believe that his terms and conditions were governed by the original contractual document, in some way that affected the overall fairness (relating to consultation and so on) with regard to the redundancy. A particular point is made that under the 1992 contract there was a contractual right to any new job being internally advertised, at least, in this situation, and that seems to be one of the major complaints.The Industrial Tribunal dealt with all of that at paragraph 7 of its decision. The Tribunal held that:
"...if the 1992 contract document is the relevant document, it was varied in December 1995 when the Applicant acknowledged receipt of a revised reissued Staff Handbook by signing a document of acceptance and returning it to the Respondents;"
Alternatively, the Tribunal held it had been accepted by the Applicant continuing to work "under the provisions of the varied contract". Also the Tribunal went on to find as a fact that the job organisational change procedure had been brought to the attention of the Applicant by 4 November 1996 and they held that in the course of the hearing the Applicant had acknowledged that he became aware of it on that date and that it applied to him.In all those circumstances we take the view that this was, first of all, very much on the periphery of this whole case, secondly that the Tribunal were entitled to find that there had been an effective variation, thirdly and alternatively, the Industrial Tribunal found, in any event, that the particular job organisational change procedure had been orally accepted by the Applicant and, at least to a limited extent, he had played a part in it. Finally, in our judgment, it is clear from the overall findings of the Industrial Tribunal that the Applicant had no intention of applying for the new post, whether it had been internally advertised or not. That much is clear from other findings of fact made by the Industrial Tribunal and accordingly for those reasons we must also dismiss this particular ground of appeal as being without any merit.