APM CONTRACTS LTD v (1) E DUGGAN (2) M & M CAPITAL HOLDINGS [2005] UKEAT 0091_04_0104

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0091_04_0104Case No Appeal No. UKEAT/0091/04Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
APM CONTRACTS LTDAPPELLANT(1) E DUGGAN (2) M & M CAPITAL HOLDINGSRESPONDENT
Before
Lady Smith Miss S B Ayre Miss A MartinDate 1 April 2005
[1]APPEARANCES For the Appellant Miss J Badger, Solicitor Of- Messrs Kidstons & Co Solicitors 1 Royal Bank Place Buchanan Street GLASGOW G1 3AA For the 1st & 2nd Respondent No Appearance Nor Representation SUMMARY UNFAIR DISMISSAL Unfair dismissal: whether or not employee dismissed. DISABILITY DISCRIMINATION Disability discrimination: whether or not reasonable adjustments made and whether or not s.693(f) required employer to make adjustment of allowing employee to be absent from work. THE HONOURABLE LADY SMITH: Introduction This case concerns a claim for unfair dismissal.[2]This judgment represents the views of all three members. The appellants were the claimant's employer and were second respondents to the application to the Employment Tribunal. We will refer to parties as appellants and claimant.[3]This is an appeal against a decision of the Employment Tribunal sitting at Glasgow, registered on 16 September 2004. The Chairman was Ms S McLean. The claimant was represented by Ms K Bolt, solicitor but, having, in common with the second respondents to the appeal, failed to file an answer to the appellant's Notice of Appeal, was debarred from taking further part in the appeal by order dated 29 March 2005. The first respondent was not represented at the hearing before the Employment Tribunal. The appellants were represented at the Employment Tribunal by Mr A Taylor, Commercial Manager and before us by Miss J. Badger, solicitor.[4]The claimant claimed that he was unfairly dismissed on 11 August 2003 when he was told that his job no longer existed due to restructuring. The appellants contended that the reason for the dismissal was that he was redundant and that, because of that, they acted reasonably in dismissing him. No other justification for the dismissal was advanced.[5]The essential issue, as defined by the Employment Tribunal was whether, on the evidence before them, the reason for the claimant's dismissal was redundancy. The Employment Tribunal were not satisfied that a redundancy situation existed. The appellants appeal against that decision. Relevant Legislation :[6]The relevant legislative provisions are to be found in sections 94, 98 and 139 of the Employment Rights Act 1996, which include the following:
"94. (1) An employee has the right not to be unfairly dismissed by his employer…………. 98 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason ….for the dismissal, and (b) that it is a reason falling within subsection (2) ……… (2) A reason falls within this subsection if it – (c) is that the employee was redundant ……. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)– (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. 139 (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to – (b) the fact that the requirements of that business– (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish."
The Employment Tribunal took these provisions into account. The Facts:[7]The appellants carry on business as shop fitters. The claimant's employment was transferred to them from the first respondents in December 2001. The claimant was employed as an assistant in the workshop and was responsible for buying materials from suppliers, liaising between the contracts managers and the joiners and labourers. In terms of his contract, he was paid on an hourly basis and regularly worked overtime.[8]The appellants lost the business of one client, Ladbrokes, in 2003, at about the time that some changes in senior management took place but there was no overall reduction of work. In June 2003, the appellants believed that stock deficiencies were occurring and a new stock control system was introduced although only after a delay which was attributable to the claimant failing to complete stock sheets timeously. On 18 July 2003, the claimant went on annual leave followed by one week's paternity leave and in his absence, Mr Patterson, one of the appellants' junior contracts' managers, who was paid on a salaried basis, covered the claimant's work.[9]The general manager (Mr A Woods) and the commercial manager (Mr Taylor) then decided that Mr Patterson had become directly responsible for the workshop and that the claimant's position was, accordingly, redundant. They so advised him when he returned to work on 11 August 2003, saying that his job no longer existed due to restructuring. He was offered a labouring job for the duration of a specific contract which involved working nightshift on a lesser rate of pay, an offer which the claimant declined to accept on 15 August 2003. No other employees were made redundant. The Approach of the Employment Tribunal:[10]The Employment Tribunal, having been referred to the proper approach to the question of whether the statutory test for redundancy is met, as set out in Murray & Anr v Foyle Meats Ltd [1999] ICR 827 , approving the EAT decision in Safeway Stores Plc v Burrell [1997] ICR 523 , were clearly not satisfied, on the above facts, that any redundancy situation existed. They reached that view having considered the facts of the case and the competing arguments from each party. It was contended on behalf of the claimant that what had actually happened was that the appellants had sought to change the type of person that was doing the claimant's job. It was also submitted on his behalf that the stock taking issue cast doubt on whether or not a redundancy situation actually existed. The response, on behalf of the appellants was that the decision to dismiss was not taken lightly, was by reason of redundancy and it occurred in circumstances where no one had replaced Mr Patterson in his job as contracts manager. He had carried on with that job but his position had been 'expanded' to cover the job formerly carried out by the claimant. The Employment Tribunal do not appear to have been impressed by the evidence given on behalf of the appellants and it is evident from their extended reasons that they were not convinced that a true redundancy situation existed at the relevant time. The Appellants' Submissions:[11]On behalf of the appellant, Miss Badger, in a careful and well prepared submission, said, firstly, that a true redundancy situation existed on the facts before the Employment Tribunal. They had not applied the relevant law correctly. She also sought to advance a second submission that there were sufficient facts before them for a finding to have been made that some other substantial reason existed for the dismissal but accepted that that was not a case which had been argued before the Employment Tribunal.[12]Miss Badger referred to the case of Murray & Anr v Foyle Meats Ltd . She submitted that, on the evidence, there was no longer any need for two people to do Mr Patterson's work and that of the claimant. One employee had been shown to suffice. That meant that work of a particular kind had diminished, namely that carried out by the claimant. It was possible for some areas of an employers' business to be affected by redundancy whilst other areas were not. That was what had occurred here.[13]Separately, Miss Badger, under reference to the case of Abernethy v Mott, Hay & Anderson [1974] IRLR 213 , submitted that this was a case where, if there was not a redundancy, some other substantial reason existed for the claimant's dismissal, namely that he was dismissed because of a reorganisation within the business. Decision:[14]We are not satisfied that the Employment Tribunal erred. The task before them was to consider the evidence and, firstly, determine a question of fact, namely whether the reason for the claimant's dismissal was redundancy. As was commented by the Lord Chancellor in the case of Murray & anr , a case which concerned the question of whether or redundancy existed in circumstances where the employers contended that dismissal had been due to the fact that the requirements of their business for employees to carry out work of a particular kind, had diminished:
"…the language of paragraph (b) is in my view simplicity itself. It asks two questions of fact. The first is whether one or other of various states of economic affairs exists. In this case, the relevant one is whether the requirements of the business for employees to carry out work of a particular kind have diminished. The second question is whether the dismissal is attributable, wholly or mainly, to that state of affairs. This is a question of causation. In the present case, the tribunal found as fact that the requirements of the business for employees to work in the slaughter hall had diminished. Secondly, they found that that state of affairs had led to the appellants being dismissed. That, in my opinion, is the end of the matter."
[15]The Employment Tribunal, in this case, determined that, as a matter of fact, the reason for the claimant's dismissal was not redundancy. In reaching that determination, they had in mind and applied the relevant provisions of s.139 of the Employment Rights Act 1996. It is apparent that they were not satisfied on the evidence, that the requirements of the appellants' business for employees to carry out the work carried out by the claimant had diminished and that in those circumstances, there was no redundancy. That is a conclusion that was, in our view, open to them on the evidence before them. There was no suggestion that the appellants' requirements for employees to carry out any work other than that formerly carried out by the claimant had diminished. The picture presented was, it seems, rather one where the appellants felt that they had no desire to have the claimant carry out the workshop assistant's duties any longer, not that they had any lessened requirement for those duties to be attended to. In these circumstances, the Employment Tribunal were not bound to find that redundancy had occurred.[16]As regards the second submission, we cannot say that the Employment Tribunal erred when it was not a submission that was before them and it was not a matter that so obviously arose that they were bound to take it into account, particularly since, as was recognised by Miss Badger, none of the evidence was directed towards having them make such a finding. We cannot, accordingly, conclude that they erred in law in failing to find that there was some other substantial reason for the claimant's dismissal.[17]We shall, accordingly, dismiss the appeal.