ADECCO UK LTD v MRS MARGARET A JOHNSON [2002] UKEAT 1063_01_3004

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1063_01_3004Case No Appeal No. EAT/1063/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ADECCO UK LTDAPPELLANTMRS MARGARET A JOHNSONRESPONDENT
Before
Mr Justice Wall Mr P M Smith Mr R N StrakerDate 30 April 2002
[1]APPEARANCES For the Appellant MR S MOON (Representative) 83 High Street Great Barford Bedford MK44 3LF THE HONOURABLE MR JUSTICE WALL This is the Preliminary Hearing of an appeal by Adecco UK Ltd against the decision of the Employment Tribunal sitting at Watford on 4 April 2001 that the Applicant before the Tribunal, Mrs Margaret Johnson, was unfairly dismissed. The Tribunal went on to make an award of £8,112.69.[2]The facts are, in very short summary, that the Appellant, Adecco UK Ltd, is a recruitment agency and Mrs Johnson was employed as a Microfilm Supervisor/Team Leader. In the early part of the year 2000 changes were taking place in Adecco's operations as a consequence of which the Microfilm Department was being replaced by a software computer system called 'Peoplesoft'. At the same time there were discussions going on within the company about cutbacks and financial savings. During May 2000 Mrs Smith, Adecco's Head of Client Services, was told that the department was over budget and needed to reduce departmental costs. In order to make financial savings it was decided to combine the Microfilm and the Timesheet Attachment Sections. This would result in there being only one full time position of Supervisor (as opposed to two) and one part time position of Supervisor. Hence there was a reduction in the number of people needed to cover those two sections.[3]The Tribunal went on to find, over a number of paragraphs, that the redundancy procedure instituted by the company was for the most part entirely fair. In paragraph 12 of the Extended Reasons they considered the consultation process in relation to the redundancy. It was common ground that Mrs Johnson was aware that the Microfilm Department would diminish in work as the 'Peoplesoft' system replaced it; however, she had been reassured by Mrs Smith in May 2000 that she would have a function for at least six months and she understood from Mrs Smith that she would be trained after that for alternative employment within the company. She was also told in May 2000 about the cutbacks and internal changes required in addition to that programme. However, when Mrs Johnson was made redundant on 14 June 2000 the Tribunal found as a fact that the procedure was unfair in two respects. Firstly, that she was not represented in any discussions about her redundancy and was not accompanied. Secondly, and more significantly, that the company failed to give timely consideration to retraining Mrs Johnson.[4]The decision goes on:
"We accept and find as a fact that the Applicant had always been given to understand that when the "
Peoplesoft" programme had eventually been introduced to replace the work of her section, that she would be retrained for other employment with the Respondent. We find as a fact too that between 6 and 14 June the question of the training did arise between the Respondent and the Applicant [that is, between Adecco and Mrs Johnson] in the conversations that concerned the need for reduction because of the financial cuts. However, having raised the matter of training between 6 and 14 June, the Respondent then proceeded to make the Applicant redundant before she had had any retraining at all." The Tribunal then go on to consider a course which Mrs Johnson found for herself and for which the company agreed to pay. The tribunal continued:
"However, in the event they made her redundant before she had been retrained at all. The Respondent's evidence on the retraining was that the course which the Applicant took was a course such as "would have led to a sufficient degree of competence to enable her to apply for a much wider range of jobs with us " [underlining that of the Tribunal] . We heard no evidence to justify why that training, or some equivalent training leading to the same result, could not reasonably have been considered and followed through before 14 June. The Respondent always had retraining in mind for this employee. That was either in relation to the "
Peoplesoft" programme or between 6 and 14 June in connection with the redundancy. They did not overlook the idea of it. They simply did not act on it in good time."[5]The Tribunal went on to find that had the company arranged retraining for Mrs Johnson in time with a view to considering her placement somewhere in the organisation, there would have been a reasonable prospect that she would not have been made redundant. Accordingly they concluded that the company's failure to consider retraining sufficiently or in time rendered the procedure for redundancy unfair in the circumstances of her case. They went on then to consider the question of the basic award. They calculated an entitlement firstly in statutory terms and then in compensatory terms. In compensatory terms they awarded her thirty seven weeks at £226.15 per week. The grand total, after a reduction for the fact that the company had paid for the computer skills course which Mrs Johnson had taken, amounted to some £8,112.69.[6]Two basic points of attack are launched on the Tribunal's reasons by Mr Moon and are in the Notice of Appeal. We propose to take the second first, which is, that the Tribunal erred in law in that it did not take into account the degree of likelihood of such training actually leading to Mrs Johnson being able to undertake another position and reflecting the degree of probability so assessed in the calculation of the compensation. Mr Moon has today cited authority to us which indicates that this in an obligation which the Tribunal was bound to undertake of its own motion. It does seem to us arguable that in awarding her compensation in the sum which they did and over the duration of the period they assessed, the Tribunal can arguably be said not properly to have taken into account the degree of likelihood of such training actually leading to her being able to undertake another position. In those circumstances, since we consider that point - as it were the quantum point - arguable, we are of the opinion that the appeal should be permitted to proceed on that ground.[7]That leaves the more substantive ground which we find more difficult. The essential submission which Mr Moon makes, as we understand it, is that there is a distinction to be drawn between a contractual obligation to provide retraining in the event of a given set of circumstances occurring, in this case the 'Peoplesoft' system being introduced; and retraining in the context of an intervening redundancy situation which cuts across the contractual obligation to provide retraining. Mr Moon concedes that circumstances may arise in a particular case whereby a fair procedure would require an employer to train or consider training a potentially redundant employee as part of the established duty to seek alternative employment. But, he says, that proposition does not apply in the instant case since there were no suitable existing or prospective vacancies known to either the company or Mrs Johnson. He develops that argument over the remaining paragraphs of the skeleton argument including the proposition that the Tribunal also failed throughout to distinguish between training or retraining for a specific vacancy or vacancies and training "at large" which, if successfully concluded, would equip an employee for a wholly different range of jobs whether with themselves or elsewhere. The finding of unfair dismissal against the Appellant is in respect of a failure to provide the latter. That, it is submitted, is an error of law by the Tribunal which would introduce an unacceptable degree of uncertainty and speculation into redundancy procedures as almost all candidates for redundancy, it is argued, would be eligible to be considered for other posts if retrained so that they have wholly new skills.[8]As I indicated a moment ago, we find this a much more difficult argument on the facts of this case, since, on any view, Mrs Johnson clearly had an ongoing expectation of retraining and the two events, that is the introduction of 'Peoplesoft' and the need to reduce expenditure within the company itself leading to her redundancy were plainly going on at one and the same time. We query whether it is artificial in the circumstances in this case to seek to distinguish in the way that Mr Moon does. Nonetheless, given that we are allowing the appeal to proceed on the second point, we think it would be artificial to deny Mr Moon the opportunity to argue the first. The first is arguable and of some interest generally and whilst we find it difficult in the circumstances of this case to apply it, we are minded to let it go through.[9]In those circumstances the appeal will be permitted to proceed on the two grounds set out in the skeleton argument and the Notice of Appeal. Category C, two hours, and skeletons fourteen days before.