EAT/1081/00 MS J WALKER v JOHN L BRIERLY LTD [2001] UKEAT 1081_00_2003

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1081_00_2003

Case No Appeal No. EAT/1081/00 EAT/1078/00 EAT/332/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

EAT/1081/00 MS J WALKERAPPELLANT

JOHN L BRIERLY LTDRESPONDENT

EAT/1078/00 MS P KAURAPPELLANT

JOHN L BRIERLY LTDRESPONDENT

EAT/1332/00 MR JOHN LAWRENCE HINCHCLIFFEAPPELLANT

JOHN L BRIERLY LTDRESPONDENT

Before

Mr Recorder Burke

Date 20 March 2001

[1]APPEARANCES For the Appellants

EAT/1081/00

MS J WALKER

EAT/1078/00

MS P KAUR

EAT/1332/00

MR JOHN LAWRENCE HINCHCLIFFE MR D IBEKWE Representative of behalf of the Appellants MR RECORDER BURKE QC We are going to give judgement in these 3 appeals in sequence starting with judgement in the case of Walker. This is the Preliminary Hearing of the appeal by the employee, Ms Walker, against the decision of the Employment Tribunal sitting at Leeds, chaired by Mr Simpson and promulgated on 19 July 2000.

[2]The basis of the employee's complaint was that she had been unfairly dismissed, that she had been dismissed in contravention of Section 99 of the Employment Rights Act 1996 and that she was due a redundancy payment. The Tribunal dismissed her claim for redundancy payment on the basis that she had already received what was due to her. The Tribunal found that she had been fairly dismissed and that the reason for her dismissal was redundancy. Although it was common ground that at the time of her dismissal the employee was pregnant and indeed, very shortly to go on maternity leave, the Tribunal found that her pregnancy played no part in her dismissal and thus that her complaint under Section 99 of the Act should fail.

[3]The dismissal occurred in the context of a redundancy situation which had arisen in the employer's company for the first time for many many years. The employers were found by the Tribunal to have needed to devise a redundancy policy. They sought advice and as a result of that advice produced a policy and a consultation procedure as to which the Tribunal found there was no criticism to be made. The Tribunal went on to find that the procedure involved effective criteria which were appropriately applied. Pursuant to the policy and the criteria thus applied, Ms Walker was selected for redundancy. She had been working, fulfilling the role of a despatch clerk; the redundancy exercise established that there was only one job doing that kind of work but there were two employees. Another member of the staff who carried out that work was able to absorb Ms Walker's work, but he did other work which Ms Walker could not do. Ms Walker accepted, found the Tribunal, that that was so and in those circumstances she was identified as at risk of redundancy.

[4]The Tribunal found that the procedure that the employers had carried out was all that could be expected of a reasonable employer. It found that there had been consultations as to the procedure with elected representatives and that once Ms Walker had been identified as at risk of redundancy, there was individual consultation with her. The Tribunal found that the employers considered whether there were other jobs that Ms Walker could do against the background of other jobs which were available but that in the end Ms Walker had to go. Overall, therefore, the Tribunal concluded that the employers had taken a decision which they were entitled to take and had done so fairly.

[5]The Tribunal awarded Mrs Walker £144.54 by way of redundancy payment, saying that that was the amount due to her on the basis of her age, length of service and basic wage.

[6]In this case and the two cases which come from the same works and the same redundancy exercise which follow, the Appellants have been represented by Mr Ibekwe, a representative of their trade union, who has put their cases forward with diligence, good sense and a great deal of charm. We are grateful to him for the help that he has given us. He has identified, in Ms Walker's case, three points which he submits are arguable. Firstly, submits Mr Ibekwe, accepting that there was a redundancy situation and accepting for the present that the reason for the dismissal was correctly found to be redundancy, the Tribunal erred in finding that Ms Walker was reasonably dismissed for redundancy because, says Mr Ibekwe, there was insufficient consultation and there was no offer of alternative employment. So far as consultation is concerned, the Tribunal expressly found, as we have indicated, that there was consultation generally with work place representatives on the procedure and individual consultation, once Ms Walker had been identified as somebody who was at risk of redundancy, with her. In the face of those findings of fact, it is in our view, not arguable that there was an absence of consultation, and whether the consultation amounted to sufficient consultation for the dismissal to be regarded as reasonable was of course a matter for the Tribunal to consider and not for the Appeal Tribunal in any way.

[7]As to the absence of an offer of alternative employment, the law does not require the employer to offer alternative employment. An employer, if he is to act reasonably in a redundancy situation, once somebody has been identified as a potential candidate for redundancy, has to consider whether there are alternative jobs which may be offered to the employee; it is not a requirement that a job should be offered; there may not be any jobs that could be offered. In this case the Tribunal concluded that the employers had considered whether there were other jobs that the employee could do against a background of the other jobs that were going at the time but that exercise failed and they concluded that the Applicant should be dismissed. We see no error or arguable error in that respect either.

[8]We turn next to the second basis on which the decision that Ms Walker was not unfairly dismissed is attacked. Mr Ibekwe submits, first of all, that the Tribunal ought to have found that the reason for the dismissal was not the redundancy but the fact that Ms Walker was pregnant; and he refers to Section 99(1) of the Employment Rights Act 1996 as it was before it became amended in December 1999 (although, we interpose, the amendment probably made no difference to this point) which provided that an employee who was dismissed should be regarded for the purposes of the relevant part of the Act as unfairly dismissed if; (a) the reason (or if more than one the principal reason) for the dismissal is that she is pregnant or any other reason connected with her pregnancy. The difficulty with this submission, as Mr Ibekwe very fairly recognised, is that he has a finding of fact from the Tribunal squarely against him that the principal reason and indeed, the only reason, for the dismissal was the redundancy situation and that Ms Walker's pregnancy played no part in her dismissal. In the light of that finding of fact, and there was no suggestion that it was a perverse finding of fact, this submission cannot, as it seems to us, get off the ground.

[9]Mr Ibekwe secondly says in relation to Section 99 of the 1996 Act that the Tribunal should have had in mind the provisions of sub section 4 of that Section which provides:

"Where: (a) an employee has the right conferred by section 79, and (b) it is not practicable by reason of redundancy for the employer to permit her to return in accordance with that right, and (c) no offer is made of such alternative employment as is referred to in section 81, the dismissal of the employee which is treated as taking place by virtue of section 96 is to be regarded for the purposes of this Part is unfair."

It is quite clear from both the words of sub section 4 of Section 99, as it then was, from Section 96 which is referred to in sub section 4 and from Section 81 which is also there referred to that that sub section is dealing, and dealing only, with the situation in which an employee who has gone off work on maternity leave, does not return from her maternity leave. In such circumstances where the conditions are satisfied, there is a deemed dismissal, but that is not this case. Only by a margin of a few days, Ms Walker had not gone on maternity leave at the material time; and there is no room for a deemed dismissal. She was in fact dismissed, as the Tribunal found, for redundancy. While we are obliged to Mr Ibekwe for an interesting argument on Section 99, we do not see that it is an argument which arguably could succeed. Accordingly we see no basis for an attack on the finding that Ms Walker was unfairly dismissed.

[10]The third point that Mr Ibekwe raises relates to the amount of the redundancy payment. There appears to be no doubt on the face of the documents that we have seen, that the redundancy payment which was awarded, was awarded on the basis of a length of service of two years. It seems to have amounted to 2 times one half of a weeks' basic salary, one half of a week being appropriate for each year of Ms Walker's service because she was during that service under the age of 22 at which an employee becomes entitled for each year to one full week as opposed to one half weeks salary by way of redundancy payment. In the IT1 Ms Walker set out the dates of her employment as 1 October 1996 to 22 October 1999; in other words she claimed that she had been employed at the date of dismissal for 3 weeks over 3 years, not 2 years; and those dates are accepted in the employers IT3 as being correct. Furthermore the employers' witness statement refers to those dates, as do other documents. It appears to us then, on the face of the documents we have seen, that is at the very least arguable and it may be very clear that Ms Walker was employed not for 2 years but for 3 years and ought to have had an extra half weeks basic salary on top of the redundancy payment which she was paid. Thus there is an arguable point to go to a full hearing. However, we wish to make it clear that any consideration of good sense and proportionality ought to render a full hearing by way of appeal on this point wholly unnecessary. We are sure that all involved would immediately appreciate that the cost even of travelling to this Employment Appeal Tribunal, never mind actually hearing an appeal, is likely to be far higher than the amount at stake.

[11]The employers will no doubt get a copy of this judgement and we would ask them to look at it with care. We would, indeed, ask both parties to look at it with care and take steps, by communicating with each other, to ensure, so far as is possible, that an actual hearing is not necessary. We would make it clear also to both parties that if there is a hearing, the Employment Appeal Tribunal which hears the appeal may wish to consider very carefully whether an order for costs in one direction or the other, might be appropriate. Of course we can in no way bind and would not seek to bind what any future division of this Appeal Tribunal might do, but we say this because we would hope and expect that the employers and for that matter the employee's representatives would approach this issue with good sense and economy. We will deal with the case of Kaur next .

[12]This is an appeal by Ms Kaur the employee, against the decision of the Employment Tribunal sitting at Leeds, chaired by Mr Simpson and promulgated on 19 July 2000 by which they rejected the employee's claim that she had been unfairly dismissed; they also rejected a contract claim that she had made and rejected her claim for redundancy payment on the basis that she had not been employed for 2 years and therefore did not qualify for a redundancy payment.

[13]The general background to this case arises from the same redundancy situation as that which arose in the case of Ms Walker in which we have just given our judgement and we therefore do not regard it as necessary to set that background out again for present purposes. As in Ms Walker's case, so in this case, this is a Preliminary Hearing of Ms Kaur's appeal. There is no appeal against the way in which the Tribunal dealt with the contract claim; but there is an appeal in relation to the unfair dismissal claim and also in relation to the dismissal of the redundancy payment claim.

[14]We propose to deal with the latter first because we can deal with it very shortly. Mr Ibekwe on behalf of Ms Kaur has suggested to us that, in the light of the decision in the House of Lords in the case of Seymour-Smith , the 2 year qualification period for a redundancy payment ought to be rejected as in breach of European Law and unlawful. The difficulty with that is that, in order to establish that a qualifying period such as that for unfair dismissal, which was the subject matter of the decision in the Seymour-Smith case, is discriminatory and therefore unlawful, it is necessary for whoever seeks to establish that proposition to call evidence, if it be alleged that the provision is discriminatory against women, that the proportion of women who can meet the qualifying period is significantly smaller than the proportion of men. In Seymour-Smith there was detailed evidence on that issue which was debated at length in the various Courts and Tribunals in which that case found itself during the course of its convoluted history. In this case no evidence of that type at all was put before the Tribunal; although Mr Ibekwe says that the point was mentioned to the Tribunal, it is manifest that it was not developed evidentially; and without any evidence it seems to us to be clear that it cannot now be resuscitated. We do not see any arguable ground of appeal in that respect.

[15]Let us turn therefore to the more substantive grounds which are urged in relation to the finding of unfair dismissal. As in the case of Ms Walker, so in the case of Ms Kaur, Mr Ibekwe starts by accepting that there was a redundancy situation in the employer's workforce and that Ms Kaur was selected for redundancy. However, he challenges the finding that she was dismissed for redundancy in circumstances to which we shall come in a moment.

[16]The particular facts of her case were these. She worked in the creeling department where a selection had to be made between 5 creelers. Of the 5, the Tribunal found that 2 were to remain and 3 were to go. The criteria established by the procedure, which the Tribunal regarded as reasonable, were applied. A Miss McKinlay came top, Ms Kaur came second and then Miss Khela came third. Thus on the face of it, concluded the Tribunal, Ms Kaur was one whose job was likely to be saved. However, unfortunately of the 2 jobs for creelers, one was on the day shift and one was on the night shift. Because Miss McKinlay had scored highest, the employers regarded it as appropriate to offer her the choice between the day shift and the night shift and she chose to work on the day shift as she always had. The employers moved on and offered the second job, the night shift job, to Ms Kaur. The Tribunal found that the employers made a number of attempts to get a response from Ms Kaur as to whether she would accept the offer but she did not give an answer. It is not their finding that she said no; the finding is that she did not answer. Eventually, the Tribunal found, the employer set a deadline for an answer. Ms Kaur did not respond within that deadline; and the employers thus offered the job instead to the third highest scoring employee, Ms Khela.

[17]Mr Ibekwe argues that the Tribunal erred in finding that the reason for dismissal in Ms Kaur's case was redundancy. He submitted that they ought to have found as the reason for her dismissal that she did not accept the job that she had been offered, which eventually went to Ms Khela. We do not regard that argument as in any way having any prospect of success. In the course of carrying out the redundancy exercise in relation to Ms Kaur, it was the obligation of the employers to see whether there were alternative jobs that they could offer to her. They offered her a job in the course of the redundancy exercise and in the context of the redundancies that were established as necessary in her department. The offer to Ms Kaur of the night shift job and her failure to respond to that offer arose wholly in the context of the redundancy situation which, it is accepted by Mr Ibekwe, existed; and it is unrealistic to separate off her failure to respond to the job offer from the redundancy situation and to say it was that failure which was the reason for her dismissal rather than the redundancy. The Tribunal found that the reason for the dismissal was redundancy. They were entitled to do so and that decision is not one which in our judgement can be attacked.

[18]Secondly, Mr Ibekwe submits that it was unreasonable for the employers to impose a deadline on Ms Kaur; but that argument strikes us as equally unrealistic as the last one. The Tribunal, looking at the matter as a whole, found that the employers had acted reasonably in the situation. They found that the employers offered the Applicant employment on the night shift and required an answer from her, she failed to respond and in the end they decided that she should be dismissed. The Tribunal concluded that this was a decision which the employers were entitled to take and that they did so fairly. It was inevitable, in the absence of any response from Ms Kaur after a little time had gone, that the employers had to move on and consider whether they should offer the job to somebody else; and the employers having given a reasonable chance to Ms Kaur to say whether she was going to accept the job or not, we cannot see how it can sensibly be said that the Tribunal acted perversely in finding as they did on this issue.

[19]Thirdly, it is argued that the Tribunal failed to consider that other jobs were vacant at the time which could and should have been offered to Ms Kaur. We have pressed Mr Ibekwe on this issue, permitting him, because this is a Preliminary Hearing and he does not have any notes of the evidence for obvious reasons, to tell us about the evidence and to take us to where in the sizeable bundle of documents there is any evidence available that there were other jobs available which would have been suitable for Ms Kaur. Unfortunately despite Mr Ibekwe's valiant attempts, he has been unable to demonstrate to us any evidence that there were any such jobs. The Tribunal decided that the employers had considered if there were jobs that Ms Kaur could do against the background of other jobs that were going at the time and that they had acted reasonably in taking the decision that they did. We see no possible ground on which that finding can be attacked either.

[20]Accordingly, despite Mr Ibekwe's efforts on behalf of Ms Kaur we do not see that there is any arguable ground of appeal in this case either against the finding of unfair dismissal or against the conclusion that she was she not entitled to a redundancy payment and this appeal is dismissed. We are now going to deal with the appeal of Hinchcliffe

[21]In this appeal of which this is the Preliminary Hearing the employee, Mr Hinchcliffe appeals from the decision of the Employment Tribunal at Leeds, chaired by Mr Simpson and promulgated on 18 September 2000.

[22]Mr Hinchcliffe claimed that he had been unfairly dismissed and also made a contract claim. The contract claim was dismissed. The Tribunal concluded that Mr Hinchcliffe had been unfairly dismissed but he was not entitled to any remedy. The Tribunal went on to order that Mr Hinchcliffe should pay £100 by way of costs to the employers in circumstances to which we shall turn in a moment.

[23]The background to this appeal is the same redundancy situation as that which formed the background to the appeal of Ms Walker and Ms Kaur with which we have dealt today; and again, we do not propose to set out the whole of the background in this judgement. It can be culled from, in particular, the judgement in the case of Ms Walker.

[24]Mr Hinchcliffe in the course of the redundancy exercise was identified as vulnerable to redundancy. There was individual consultation with him. The Tribunal found that the employers had looked in vain for any alternative employment for him and therefore he was given notice upon dismissal on 15 September 1999. The date on which his notice was to expire is not clear but it was agreed that he would leave on 15 October.

[25]The Tribunal concluded that up to that point the employers had acted reasonably; and no criticism of that conclusion is made on behalf of Mr Hinchcliffe in this appeal. However, then events changed the picture. On 11 October, 4 days before Mr Hinchcliffe was to leave, a Mr Mellor who worked in the warehouse, and as part of his duties drove a fork lift truck, gave notice to terminate his employment. The Appellant, Mr Hinchcliffe, learned of this, so the Tribunal found, on the grapevine before he left on 15 October. The employers thought of offering Mr Mellor's job to Mr Hinchcliffe as well as to others who had been made redundant but because Mr Mellor's job required an experienced and qualified fork lift truck driver, it was thought that Mr Hinchcliffe could not qualify. However, they did not know that Mr Hinchcliffe had previously been a fork lift truck driver. The Tribunal found that, had the employers consulted with Mr Hinchcliffe about this vacancy, in the course of the 4 days between 11 and 15 October, then he would have been able to tell them of his experience and the possibility of a brief retraining course could have been considered. Unhappily the employers did not approach Mr Hinchcliffe to have any such discussion. Thus, when he left, there had been no such discussion. The Tribunal found that by not consulting Mr Hinchcliffe the employers had unreasonably deprived him of the chance of securing Mr Mellor's job and for that reason the dismissal was unfair. The Tribunal however went on to find that Mr Hinchcliffe was also at fault because he did not help himself. The Tribunal found that he knew that Mr Mellor was leaving, knew that his job would become available, knew that he had experience which could have fitted him to undertake Mr Mellor's job, perhaps after retraining, but chose not to approach the employers so as to give himself the opportunity to be considered for the job. He gave as his reason for not taking any such step, that he expected the employers to approach him. The Tribunal concluded that they did not accept that reason as a valid reason. The Tribunal went on, in paragraph 17 of its decision, having set out their criticisms of Mr Hinchcliffe, to find that he had contributed to his own downfall to the extent of 100%. Reinstatement not being appropriate, they then concluded that Mr Hinchcliffe, having been 100% at fault, was not entitled to any compensatory payment and his basic award was absorbed into the redundancy payment which he had already received. Thus he received no compensation and no basic award.

[26]Mr Ibekwe attacks the conclusion which the Tribunal reached as to Mr Hinchcliffe's fault in two ways. Firstly, he says that they should not have found him at fault at all. He submits, firstly, that it is the employers' obligation to consult the employee and to propose alternative employment to him, and it is not the obligation of the employee to take steps of his own initiative to secure or to seek out a job which he knows is available in the absence of any communication from the employer. We do not regard that argument as one which is at all arguable. It is true that there is an obligation on the employer both to consult and to look for alternative employment for the employee, but it does not follow that as a matter of common sense it is not open to a Tribunal to find that an employee who knows that a job is available which he can do but takes no steps to indicate that he can do it to the employer, who may not know that he can do it, is not at fault. Mr Ibekwe further argues that because sub section 6 of Section 123 of the Employment's Rights Act 1996 says: "Where the Tribunal finds a dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportions at it considers just and equitable having regard to that finding." it is not open to the Tribunal to reduce the amount of a compensatory award where there was no action but only inaction which can be criticised. This too we regard as unarguable. We have no doubt that the word 'action' includes omission or inaction. Were it otherwise an employee who committed the most serious omission, for instance failing to put on the burglar alarm when he left the office as the last person to leave, would not be open to any finding of fault on his part, however serious his conduct overall. However, as a third argument in this area Mr Ibekwe has submitted that, whether the first two arguments are right or wrong, it could not have been a reasonable decision for the Tribunal to conclude that the employee was wholly to blame for what happened or that he had contributed to his own downfall to the extent of 100%, if that is in some way different from being wholly to blame. We do not propose to go into details because it is a matter which may or will have to be looked at by another division of this Appeal Tribunal in due course. We are all satisfied that this submission does raise an arguable point which should go to a full hearing.

[27]We move on to the Tribunal's order for costs. The Tribunal ordered Mr Hinchcliffe to pay £100 in costs because he did not appear on the second of two days which were fixed for the hearing of his case, those two days being 25 and 26 May 2000 and, concluded the Tribunal, further clarification was needed from him on the second day which he was not there to give and as a result his case had to be stood over to a third day, 31 August 2000. although Mr Hinchcliffe had not asked to be excused attendance on the second day.

[28]Mr Ibekwe tells us that the sequence of events was as follows: at the conclusion of the first day, says Mr Ibekwe, all the evidence in Mr Hinchcliffe's case had been completed and the Tribunal indicated that it would give its decision on the issues of unfair dismissal and breach of contract on the next morning. While Mr Hinchcliffe had not asked not to be present on the second day, he did not have to ask and it was not capable of being foreseen that he would have any role to play on that day. Although remedies had not yet been discussed, there was no material evidence that he could give and indeed, when remedies were dealt with on the third day, he did not give any further evidence on the issue as to remedies. Mr Ibekwe was there on the second day as his representative. What he anticipated from what the Tribunal had indicated, was that once it had given its decision on liability, it would either then go on shortly to deal with remedies or not; but in any event the case of Ms Walker was slated to start as soon as a decision in Mr Hinchcliffe's case had been made and to take up the rest of that second day, 26 May: and says Mr Ibekwe, it did, because the Tribunal sat late on that second day to finish it. On the third day, according to Mr Ibekwe, Mr Hinchcliffe gave further evidence to clarify the matter which the Tribunal had, as it turned out, indicated on the second day they wanted to hear more about from Mr Hinchcliffe, for about an hour. Then there was a lengthy retirement and the Tribunal did not give its decision until the afternoon of the third day. If that truly be the sequence of events, then it seems to us to be arguable that, firstly, it was not possible to anticipate that any need for Mr Hinchcliffe's presence on the second day might arise and secondly, that in any event Mr Hincliffe's absence on the second day had not caused the need for a third day because, Ms Walker's case having taken up the rest of the second day, there would not have been time to have completed Mr Hinchcliffe's case on that day without displacing Ms Walker who was not to be displaced because she had only just had a child and no doubt had to get back and not spend any more time at the Tribunal than was necessary. We are not of course saying that these comments we make will turn out necessarily to be correct, and the appeal Tribunal will need to know more about precisely what happened. We say that not because we suggest that Mr Ibekwe has consciously misrepresented the position, we would not dream of making any such suggestion but there are potentially two sides to every story.

[29]What we propose to do, then, is to allow the costs part of this appeal to go for a full hearing; but we propose also to request the Chairman of the Tribunal to inform the Employment Appeal Tribunal as to the sequence and timing of the stages in the proceedings of Mr Hinchcliffe's case and Ms Walker's case on the second day, 26 May and of Mr Hinchcliffe's case on the third day, 31 August, so as to assist the Appeal Tribunal to decide whether and if so why a third day was necessary and whether, had Mr Hinchcliffe been present on the second day, a third day would have been avoided. We should make it clear that we are not asking the Chairman to expand upon the Tribunal's reasons for making the award of costs which it made because of course to make such a request of the Chairman, on the current state of the authorities of this Appeal Tribunal, would be inappropriate.

[30]So we allow this case to go through to a Full Hearing only, firstly, on the ground of appeal identified at paragraph 1(e) of the notice of appeal and, secondly, on the ground of appeal identified at paragraph 2 of the notice of appeal in respect of costs.