Russell v London Borough Of Haringey [1999] UKEAT 529_98_0802

EAT
Russell v London Borough Of Haringey
[1999] UKEAT 529_98_0802 · 1999-02-08
MR JUSTICE CHARLES : The parties to this appeal are a Mr Colin Russell and the London Borough of Haringey. The appeal is against a decision of the Industrial Tribunal held at London (North). The hearing took place on 9 and 10 March. Extended Reasons are dated 23 March 1998.Mr Russell represented himself before the Tribunal and has again represented himself today. The Respondent employers have been represented on both occasions by Mr Choudhury. The decision of the Industrial Tribunal was that it was the unanimous decision of that Tribunal that the Applicant was not unfairly dismissed and that the Respondents were not in breach of contract. They therefore refused Mr Russell's application.The essential paragraphs for present purposes of the Extended Reasons are as follows:
"1 the Applicant was employed from 28 September 1992 until 31 March 1994 (sic) as a Panel Administrator in the Housing and Social Services division of the Respondents, the London Borough of Haringey. Mr Russell's job was declared redundant and he claims that there was no genuine redundancy, that he was unfairly selected and that the reason for his dismissal was not redundancy but because he was forced out for personal motives by his managers. He also maintains that the Respondents were in breach of contract in not pursuing his grievance promptly and in dismissing him before his grievance had been resolved. The Respondents maintain that there was a genuine redundancy in respect of Mr Russell's job, as part of a much larger exercise to simplify the management structure and a reduce the budget by £200,000. The deletion of Mr Russell's job was arrived at objectively and reasonable efforts were made to relocate him within the organisation. Breach of contract is also denied and the Respondents maintain that they went to great lengths to identify an independent person to carry out an investigation of Mr Russell's grievance, that this took time and the matter was deal with as expeditiously and thoroughly as possible."
The reference to 31 March 1994 is clearly a typing mistake and should refer to 31 March 1997.Paragraph 2 of the Extended Reasons sets out the evidence heard by the Tribunal. It continues under the heading "Unfair Dismissal":
"We are satisfied that there was a genuine redundancy as to the Post of Panel Administrator. The Respondents commissioned a report by independent consultants which recommended the streamlining of the administration of the directorate of Housing and Social Services and pursuant to that report a review group was established, of which Mr Olechnowicz was a member, to consider the post to be deleted in order to comply with the Consultants' report and recommendations and to achieve the saving of £200,000 which was required. The Applicant's job was included in the notice sent to the trade union concerned pursuant to section 188 of the Trade Union and Labour Relations Act. The post itself, although grade 5, had been identified as having reduced its value to 17½ hours and the duties of it were combined with another half job during Mr Russell's period of work in post. The decision to delete the post was justified by subsequent events, under which it is still considered as a half job and which has in fact been down graded. The Respondents have shown that the requirements for section 139 (1) (b) of the Employment Rights Act 1996 had been complied with and that there was a genuine redundancy in respect of Mr Russell's post.
3 Consultation took place by virtue of the Respondents having followed the requirements of section 188 of the Trade Union and Labour Relations Act to give notice of intended redundancies and consult with the union. As Mr Russell was not a member of the union, there was personal consultation with him at an interview on 12 December 1996 when he was informed that his post was at risk. The position was confirmed by Mr Olechnowicz in a telephone conversation of 14 January 1997.4 Since Mr Russell's post was considered as specific unit, there was no need to apply selection criteria. The Respondents were however obliged to offer Mr Russell suitable alternative employment and although initially the time given to him to decide whether or not to apply for any of the jobs offered was short, looking at the process as a whole we conclude that the Respondents acted reasonably in the manner in which opportunities were presented to Mr Russell for acceptance. Mr Russell's refusal to apply for any of the jobs which were available to him was unreasonable and based upon a misconception, namely that he could not be dismissed on grounds of redundancy unless and until his grievance had been resolved. The grievance had in fact been instituted before the redundancy situation had progressed to the point of deletion of Mr Russell's job, and was therefore quite independent of it. Mr Russell's fear that those managers who were named in his grievance might be involved in the job selection was also misplaced and his failure or refusal to pursue any of the jobs offered to him relieved the Respondents of any further obligation in that regard.5 As to the timing of the job offers, the initial particulars were conveyed to Mr Russell by Miss Gaffrey letter dated 7 February (a Friday) requiring him to notify her of his interest by 11 February (the following Tuesday) or in the case one job Monday the 10th. Taken in isolation that was grossly inadequate notice. However by subsequent correspondence Ms Gaffrey extended the deadline to a point whereby Mr Russell could have applied for the job on offer for a period of some six weeks after they were originally mentioned to him, but he chose not to do so.6 We therefore conclude that there was a genuine redundancy, that the steps taken by the Respondents to deal with the redundancy issue as regards Mr Russell were fair and therefore the dismissal itself was fair."Paragraphs 7 and 8 of the Extended Reasons go on to deal with a breach of contract claim which is referred to in paragraph 1. The Tribunal rejected that claim. No appeal was pursued in respect of that rejection before us today in the oral submissions made by Mr Russell. Also the finding of the Tribunal that Mr Russell had not been forced to leave because of the personal motives of his managers was not pursued before us today in oral submission. In our judgment Mr Russell was correct not to pursue an attack on these parts of the decision. We can see no reasonably arguable point of law relating to them.The main focus of the appeal before us reflects the short judgment given by this Tribunal at the preliminary hearing and the focus is on two grounds:(1) That the Tribunal erred in law in concluding that Mr Russell was redundant, and(2) The Tribunal erred in law in concluding that there was no need to apply selection criteria in Mr Russell's case.The finding of redundancy within section 139 (1) (b) of the Employment Rights Act .That section reads:
"139 (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissed 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.Subsection (6) provides:
"(6) In subsection (1) 'cease' and 'diminish' mean cease and diminish either permanently or temporarily and for whatever reason."
Section 6 of the Interpretation Act 1978 provides that:

"Unless the contrary so appears the plural includes the singular."

In our judgment that general interpretation provision applies to section 139 of the Employment Rights Act.The application of the statutory test in section 139 to a given situation is a matter that can generally be left to the good sense of the Tribunal. If authority were needed for that proposition it can be found in Church v West Lancashire NHS Trust [1998] IRLR 4, at paragraphs 32 and 33 where this Tribunal cite from the decision of the Court of Appeal in High Table v Horst & Others [1997] IRLR 513 .Mr Russell referred to the decision in Safeway Stores Plc v Burrell [1997] IRLR 200 . So far as that decision and the Church decision are concerned, we comment that this is not a case where the debate contained therein as to "bumping" arises. Also, as to the Safeway case we comment that at paragraph 48 of the judgment of this Tribunal, where they refer to the earlier case of Cowen v Haden Carriers Ltd [1982] IRLR 22, this Tribunal indicate that the statutory test contained in section 139 (1) (b) can be satisfied where the employer's requirements for a particular post have ceased.In our judgment, in concluding that the statutory test set out in section 139 (1) (b) was satisfied in this case, the Tribunal did not err in law and their decision is well within the range of meaning of the statutory test.The decision that there was no need to apply selection criteria .The first sentence of paragraph 4 of the Extended Reasons is the crucial finding in this respect. It has to be read with the procedure applied by the employers and in particular paragraph 3 in Part D of that procedure under the general heading "The way in which employees will be selected for redundancy". Paragraph 3 reads as follows:
"3. CLOSURE OF SPECIFIC UNITS .
The identification of a unit or section for closure will not automatically result in the people who work within it being declared redundant.Consideration will be given to whether the affected employees are interchangeable with other employees elsewhere in the organisation.Only if there is evidence that the employees are not interchangeable will they be declared redundant without any further selection.It is possible for a unit closure to be a single employee. Supernumerary employees will generally fall into this category."In our judgment a fair reading of paragraph 4 of the Extended Reasons against the background known to the parties (and, in particular paragraph 3 which we have just set out above) is that having regard to the evidence they heard the Tribunal concluded that it was reasonable for the employers to decide that Mr Russell was not "interchangeable" and therefore as the Tribunal found in the first sentence of paragraph 4 that since Mr Russell's post was considered as specific unit there was no need to apply selection criteria. We add that in reaching this conclusion the Tribunal had the benefit of evidence which extended over a period of time and undoubtedly took into account the letter referred to in paragraph 5 of the Extended Reasons in reaching their conclusion.The application of the procedure, and the conclusion of the Tribunal relating to it, both involve issues of fact and degree and what can be described as "value judgments relating to the circumstances of a given case". Again, in our judgment in respect of this ground of appeal the Tribunal did not err in law in reaching the decision that they did and that decision was well within the band of decisions open to the Tribunal on a correct application of the law.Finally we make some general comment. As we mentioned Mr Russell presented his own case before us. He did so with ability. We are aware that he does not agree with some of the findings, or indeed most of the findings, of fact reached by the Tribunal, but as we sought to explain to him it was not open to us to go into the facts again.In our judgment the Tribunal clearly had evidence upon which they could reach their findings of fact and having regard to them the Tribunal did not err in law in reaching the conclusions that they did. This appeal is therefore dismissed.