MR S AMOR v GALLIARD HOMES LTD [2001] UKEAT 47_01_2509

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 47_01_2509Case No Appeal No. EAT/47/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S AMORAPPELLANTGALLIARD HOMES LTDRESPONDENT
Before
Mr Recorder LangstaffDate 25 September 2001
[1]APPEARANCES For the Appellant Mr David Ohlson (Representative) Southwark Law Centre 14-16 Hanover Park London SE15 5HG For the Respondent Mr Alan Porter (Representative) Galliard Homes Ltd PO Box 206 Loughton Essex IG10 1PL MR RECORDER LANGSTAFF QC This is an appeal from the Employment Tribunal sitting at London Central, whose Extended Reasons were promulgated on 24 November 2000. By those Reasons, the Tribunal found the employee to have been unfairly dismissed and ordered the payment by the Respondent to him, of £804.36 compensation. This is, however, the employee's appeal. Why should it be that an employee who has won his case should wish to appeal? In effect, the appeal is one against the compensation award, which might have been greater had the reasoning been different.[2]The essential facts, as found by the Employment Tribunal, and against which there is no challenge, are that the Appellant was a forklift truck driver at the Respondent's Chillingworth Road site. By 17 April 2000, the Respondent's need of a full-time forklift truck driver was diminishing. Moreover, the Respondent needed a fork lift truck drive licensed to drive such a truck on the public highway; the Appellant was not so licensed.[3]Accordingly, the Respondent told the Appellant that he could continue to work as a labourer for the same pay. He agreed to do so. In the critical finding of fact, as it has turned out, the Employment Tribunal said this:
"The Respondent ……..told the Applicant that he could continue to work as a labourer and that he could do so without any reduction in pay. The Applicant then did work as a labourer until 20 April when he was told that he was redundant. The Applicant's evidence to us was that he would have been happy to carry on working as a labourer without loss of pay. The Respondent however told us that while they had been prepared to allow the Applicant to continue working as a labourer at the same rate of pay he became disruptive on the site and that as a result of his disruptive behaviour they had no choice but to go ahead and implement the redundancy. The Tribunal unanimously accept the Respondent's evidence that the Applicant was disruptive when he was removed from his duties as a forklift truck driver and that it was for this reason that the Respondent went ahead and implemented the redundancy."
When the Employment Tribunal drew its conclusions, based upon the findings of fact, the critical ones of which we have recited, it concluded that the principal reason for dismissal was redundancy.[4]The Tribunal went on to assess the fairness of the dismissal for that reason, in accordance with what one might describe as the traditional approach to a redundancy dismissal, that is examining the degree of warning that redundancy might be imminent, and consultation about both the redundancy and its after-effects. It was on that basis that the Tribunal concluded that there had been unfair dismissal, because there had been no sufficient, or indeed any, consultation prior to the redundancy.[5]The problem which the findings of fact give rise to, and which has formed the basis of this appeal, is that it would appear from what we have recited at paragraph 9 that the Appellant was dismissed because of his disruptive behaviour. Had it not been for his disruptive behaviour, he would not otherwise have had his employment terminated.[6]We put in argument to Mr Porter, who appeared for the Respondent, an analogy with an employee made redundant from one post, but offered another from which some three weeks later, he was caught thieving. A dismissal which then followed would be a dismissal by reason of conduct, and not by reason of redundancy. Mr Porter was constrained to accept that this must be so. Equally it must follow - and Mr Porter accepted this too - that nothing could hinge upon the period of time between the redundancy from job one and the dismissal from job two.[7]Accordingly, the finding of fact that the Tribunal came to, that the Appellant here did actually work as a labourer, albeit only for some three days following his dismissal by reason of redundancy from his earlier employment as a fork lift truck driver, has the effect that it is the reason for his losing that work that has to be considered. The Employment Tribunal did not find that there was any excess of labour at the site, such as would justify a finding that the Appellant had lost his job as a labourer, because of redundancy. The definition of redundancy is such that the requirements of the business for employees to carry out work of a particular kind has " ceased or diminished or are expected to decease or diminish" I have quoted words relevant for the purposes of this case from Section 139 of the Employment Rights Act 1996 . There is no finding of fact which would justify such a conclusion in respect of the Appellant's work as a labourer, although plainly there was abundant evidence to justify the conclusion that his loss of the job as a fork lift truck driver was indeed for that reason.[8]Before us, in the course of his Skeleton Argument, Mr Ohlson has added the argument that Section 138 deals with cases in which a contract is renewed or there has been re-engagement. Section 138(1) provides that:
"(1) Where - (a) an employee's contract of employment is renewed, or he is re-engaged under a new contract of employment in pursuance of an offer …….made before the end of his employment under the previous contracts, and (b) the renewal or re-engagement takes effect either immediately on, or after an interval of not more than four weeks after, the end of that employment. The employee shall not be regarded for the purposes of this Part as dismissed by his employer by reason of the ending of his employment under the previous contract."
That would, in the circumstances of this case, mean that the situation in which the fork lift truck driving job came to an end did not, for the purposes of the Act constitute a dismissal.

(b) (ii) that that sub-section does not apply if:

"(ii) the employer, for a reason connected with or arising out of any difference between the renewed or new contract, terminates the renewed or new contract, or gives notice to terminate it and it is in consequence terminated."
[9]Mr Ohlson argues, and we think rightly so, that that sub-section indicates the situation in which a dismissal after the ending of one job, and during the currency of a second job, may nonetheless be taken to be by reason of redundancy: that is where there is a reason connected with, or arising out of a difference between the renewed or new contract and the previous contract. By specifying one reason, it excludes others. Therefore, Mr Ohlson argues, and we think correctly, that if there is a dismissal for conduct or misconduct, or capability, within the currency of the second job, even within the period of four weeks, following the ending of job one, this does not reinstate the redundancy. It is, instead, a fresh dismissal and has to be looked at in that light.[10]So far as the right not to be unfairly dismissed is concerned, the reason for that dismissal cannot be assumed to be redundancy, certainly not from job one, but has to be established by the employer. Therefore, whether one analyses it through Section 138, with the help of the sophisticated analysis which Mr Ohlson has provided, or whether one takes the analogy which was put to Mr Porter in the course of argument, which he was inclined to accept, the answer is exactly the same: on the findings of fact made here, it appears to us that the conclusion that the Employment Tribunal reached cannot be justified. We therefore have no alternative but to allow this appeal.[11]The question then arises as to what Order we should make. Because the only reason advanced before the Employment Tribunal for the dismissal which occurred on the date it occurred, was redundancy, and since it follows from the findings of fact which are binding upon us, that the reason was not redundancy, the employer cannot establish that the reason for dismissal was within Section 98. It follows that the dismissal must be taken to be unfair.[12]We are not in any position here to say that the consequences of that would be the same in monetary terms to Mr Amor than was the consequence of a conclusion that the employer had made out that the ground was redundancy, but had failed on the test under Section 98(4) of fairness. The answer may well be different.[13]Accordingly, we shall remit this case for hearing before a differently constituted Employment Tribunal to determine the question of compensation in the light of all the facts, which no doubt will include the arguments between the parties as to what might have happened had the employer not wrongly assumed that, by dismissing the employee for his disruptive behaviour, they were implementing the redundancy. It is perhaps that view taken by the employer which has led to the present appeal and indeed to the difficulties which the employers presently face.[14]For those reasons, we shall allow this appeal and remit the case as we have directed.