MR A HERRON v (1) JOHN EVANS (2) DAVID ROBSON QC [2000] UKEAT 851_00_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 851_00_1910Case No Appeal No. EAT/851/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A HERRONAPPELLANT(1) JOHN EVANS (2) DAVID ROBSON QCRESPONDENT
Before
His Honour Judge J R ReidDate 19 October 2000
[1]APPEARANCES For the Appellant MR R F MONKS (of Counsel) Messrs Deas Mallen Souter Solicitors Eldon Chambers 23 The Quayside Newcastle-upon-Tyne NE1 3DE JUDGE REID QC : This is an ex parte preliminary hearing in an appeal by Mr Herron against the decision of an Employment Tribunal held at Newcastle-upon-Tyne on 17th and 18th April 2000 after which a reserved decision was produced following deliberations on 3rd May 2000. By their decision the tribunal determined that the applicant had been dismissed by reason of redundancy and that the dismissal was fair. Since we take the view that this matter should go to a full tribunal, I will say as little as possible about the case.[2]The appellant was a barrister's clerk. The circumstances that arose in the Chambers were such that it was decided that the post which he had been occupying would no longer continue to exist. At the same time, more or less, another members of the clerks' room, who was the criminal listing clerk, decided to leave. The respondents went through a redundancy process with the appellant and invited him to apply for the job of criminal listing clerk that was to become vacant. They did not in the event shortlist him, taking the view that there were other and better candidates. Having interviewed those candidates the respondents made an offer to one of them, who initially indicated that he would accept. However, he then changed his mind and decided to remain with the Chambers at which he was then employed. What the respondents then did was to approach the next candidate on their list but they did not approach him with a view to making him criminal listing clerk. They determined that there should be a rejigging of the way in which the clerks' room was run and the result of that can for the present purposes be set out in the form of announcement which appears to have been circulated in these terms:
"Nick Leonard [ the second choice candidate ] has been appointed to the post of Assistant Listing Clerk. The title has changed in view of changes in the job description which resulted from discussions with Frank [ the senior clerk ] following the decision of Colin Hands [ the original appointee ] to remain at Trinity Chambers. It has been decided that Nick and Andrea [ CPS clerk ] will share equal status as Assistant Listing Clerks to Frank. Andrea will obviously be responsible for training Nick and both have expressed a willingness to engage in in-house training in both family and civil work in order to be able to assist Frank in clerking that work. Nick will take up his post on the 10th May, Sharon [ the former criminal listing clerk ] being due to depart on the 14th May."
[3]It will be seen from that that the job to be filled had changed pretty dramatically as a result of the rethinking by Chambers following Colin Hand's decision not to join them. Chambers did not however at that stage engage in any further consultation with the appellant. They simply went on, as they might very well have been entitled to do had their decision simply been to make Nick Leonard the criminal listing clerk.[4]In our view, it is arguable that the tribunal failed to pick up on the possibility that the respondents were in breach of their continuing obligation to consult following this change and in those circumstances it seems to us that there is a point which should be argued at a full hearing as to whether or not the decision was flawed by failure of the tribunal to consider whether or not the respondents should have continued consultation with the appellant once they had decided that rather than simply appoint a new criminal listing clerk they were going to rearrange the manner in which the employees in the clerks' room shared their work. In those circumstances, it seems to us that this is a matter which should go to a full hearing.[5]The case should be listed for ½ a day, Category C.