MR J P ROBERTS v 4 FRONT TECHNOLOGIES LTD [2002] UKEAT 0601_01_1406
[1]APPEARANCES For the Appellant MR I WRIGHT (of Counsel) Instructed by: Ormerods Solicitors Green Dragon House 64-70 High Street Croydon Surrey CR0 9XN For the Respondent MS P HOWE (of Counsel) Instructed by: Warner Goodman & Streat Solicitors 8/9 College Place London Road Southampton SO15 2FF JUDGE PETER CLARK This is an appeal by Mr Roberts, the Applicant before the London (South) Employment Tribunal, against that Tribunal's decision, promulgated with extended reasons on 9 March 2001, dismissing his complaint of unfair dismissal brought against his former employer, the Respondent, 4 Front Technologies Ltd. The Facts[2]The Appellant was continuously employed by the Respondent and its predecessors from 28 February 1988 until 29 June 2000.[3]He was employed as a site computer engineer, working on various sites pursuant to contracts made between the Respondent and the site owners. In 1999 he was employed at the Legal & General Insurance offices in Kingswood, Surrey. He then had a period off sick until 7 February 2000 when he returned to work at the Fina site, Epsom. That was a temporary posting, the Fina contract being due to expire on 31 March 2000.[4]On 28 March 2000 the Appellant was informed in writing that he was potentially to be made redundant on 12 April. In the event he was transferred to the Crown Agents site in Sutton (on, we are told 19 April) to replace one of four engineers then working on that site. The Respondent's contract in respect of that site with the Crown Agents was due to expire on 31 July. On 3 May he was given notice of dismissal to expire on 27 July 2000. By agreement between the parties the termination date was brought forward to 29 June and his employment with the Respondents ceased on that date. We shall refer to that date as the effective date of termination, (EDT).[5]Prior to the EDT the Appellant had obtained an internal Crown Agents document revealing a decision to renew the Respondent's contract at Sutton. He did not share that information with the Respondent.[6]The Tribunal accepted the evidence of Mr Yoxall, the Respondent's National Site Manager, that the Respondent's management had no knowledge, prior to the EDT, that the Crown Agents contract would be renewed. It was in fact renewed with effect from 7 August 2000.[7]Steps were taken to assist the Appellant in finding alternative employment with the Respondent during his final notice period. We are not concerned with the issue of alternative employment in this appeal.[8]At paragraph 13 of their reasons the Tribunal record that there is no claim before them, the Appellant then acting in person, that the Respondent failed to provide him with adequate opportunity for consultation.[9]On these findings the Employment Tribunal concluded that the Appellant was not unfairly dismissed by reason of redundancy. The Appeal[10]At an ex parte Preliminary Hearing held before a division presided over by Mr Justice Wall, sitting on 31 October 2001, this appeal was permitted to proceed to a full hearing with the Respondent present on three grounds:(1) Whether the Employment Tribunal erred in law in finding that the Appellant was dismissed by reason of redundancy. Was it a genuine redundancy?(2) Whether the Tribunal ignored the absence of any evidence of proper consultation.(3) Whether the Tribunal similarly ignored the absence of any evidence of a proper selection procedure It is convenient to deal with each of those points in turn. Redundancy[11]Mr Wright submits, first that the Employment Tribunal failed to consider the Appellant's place of work for the purposes of Section 139(1)(b) of the Employment Rights Act 1996 . We are satisfied that this point was not taken below by the Appellant and there are no exceptional circumstances which would permit him to take it for the first time on appeal, particularly where further findings of fact would be necessary. Jones v Burdett Coutts School [1998] IRLR 521 .[12]Secondly, he submits that the evidence did not support a finding of redundancy. We disagree. The Tribunal accepted the Respondent's case that, up until the EDT, they expected the Crown Agents contract to end on 31 July. That amounts to redundancy as defined in Section 139(1)(b). The requirements of the business for employees to carry out work of a particular kind were expected to cease or diminish. Consultation[13]There was evidence before the Tribunal as to the consultation engaged in between the Respondent and Appellant from the time when it was known that the Fina contract would come to an end. The Tribunal observed at paragraph 13 of their reasons that no claim was made by the Appellant that the Respondent failed to provide him with adequate consultation. In our judgment, this ground of appeal also fails. Selection[14]Mr Wright submits that the Appellant was treated differently from the other engineers at the Crown Agents site and that he was selected for redundancy whereas they were not. First, there was no evidence before the Tribunal as to what happened to those engineers. What is clear is that the Appellant agreed to leave early, on 29 June, when he knew that the Crown Agents contract was likely to be renewed but his employers did not. Had he waited he could have remained in work at that site. However, no question of selection arose. Either all were potentially redundant on that site or none. It follows that in the absence of any selection issue arising in fact, it was unnecessary for the Tribunal to mention it. Conclusion[15]Having considered each of the ways in which this appeal is put, and with the benefit of argument from Miss Howe, who appeared below, we have concluded that no error of law is made out. Consequently the appeal must be dismissed.