Appeal No. EAT/824/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 October 1996

Before
THE HONOURABLE MRS JUSTICE SMITH
MR A C BLYGHTON
MISS D WHITTINGHAM

MR W BLACKETT	APPELLANT

SUNDERLAND CITY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR WEISBARD
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

	MRS JUSTICE SMITH:	This is the preliminary hearing of an appeal from the decision of an Industrial Tribunal sitting at Newcastle.  Following a four-day hearing a reserved decision was sent to the parties on 11 June 1996.  The Tribunal dismissed the Appellant’s claim that he had been unfairly dismissed.  

	The Appellant had been employed by the Respondents for about six years.  Initially he worked in the Treasurer’s Department.  Then he was transferred to Social Services Department.  For much of the time he was a Shop Steward for UNISON, his trade union.  

	In late 1994 the Government announced its level of proposed funding for local authorities for the coming year.  In the light of those announcements the Respondents considered that some cuts in personnel would be necessary.  They wished to save some £2 million per annum by the removal of 167 employees from the payroll within the Social Services Department.  In Central Support staff, where the Appellant worked, three jobs were to go of which one was to be from the group in which the Appellant worked.  Discussions took place and the Respondents decided that it was to be the Appellant’s post of Project Manager which must be abolished.  

	The Appellant was informed in early March 1995 that his post was to be abolished.  That of course, did not mean that his employment would come to an end because the Respondents’ procedures required that all proper steps should be taken to find him alternative employment.

	The Appellant contended before the Industrial Tribunal that the decision to make his post redundant was a design to be rid of him because his immediate superiors and the head of the department were antagonistic towards him on account of his trade union activities.  However, having considered those contentions, the Tribunal rejected them.  They found that not only was this a genuine redundancy, it was also a reasonable decision to select the Appellant’s post.

	There then began the consultation exercise and the attempts to relocate the Appellant as required under the Respondent’s procedure.  The Industrial Tribunal were quite critical of the Respondent’s failure properly to follow their own procedures and to seek alternative employment for him.

	No suitable opening had been found when, in mid to late April 1995, the Appellant had an accident.  He suffered an injury to his chest.  He took some time off work, not immediately, but from 2 to 17 May.  At about the end of that time it came to the Respondents’ notice that the Appellant, who plays guitar, had attended two gigs during his period of absence.  It appeared possible that a breach of discipline had occurred in connection with the provision of sick notes.  The Appellant denied then and to the Tribunal that he had acted improperly.  In any event, disciplinary proceedings were convened.  There was some delay.  There was some difficulty in convening a hearing due to the absence through illness of the trade union representative whom the Appellant wished to accompany him.  Eventually, another trade union representative Mr Pink, took on the case and investigated it.  He came to the conclusion and so advised the Appellant that there was a real danger that he might be dismissed.  He offered to negotiate with the Respondents that the Appellant should be allowed to take voluntary redundancy.  If that were possible there would be no disciplinary proceedings.  In short, that was what happened.  The Appellant was very unhappy about this course of events and made it plain, both at the time and to the Tribunal, that he felt he had been forced into the position of accepting voluntary redundancy.  Nonetheless, he did accept it.

	The Industrial Tribunal, having found that the reason for the dismissal was redundancy, went on, as they were bound to do, to consider the provisions of section 57(3) of the 1978 Act.  At paragraph 11 of their decision, they said:

“...  As we have already said, we took the view that the selection of the applicant’s post was genuine and reasonable.  It is likely that, by the end of the negotiation process, the relevant trade union had accepted the selection.  There was some consultation with the applicant and, whilst it was not very great, it was such as was reasonable in the circumstances.  The real failing of the respondent relates to the efforts it made to look for alternative employment for the applicant.  Some efforts were made, at least by Ms Begley [the Appellant’s immediate superior].  However, the respondent failed to follow its own agreed procedure, indeed the terms of the applicant’s contract of employment, in that it failed to ensure that the Personnel Department was able to produce a list of all existing and likely vacancies.  If the facts of this case had been quite different, the question of the applicant’s suspension had never occurred and the applicant had eventually left the respondent’s employ because alternative work had not been found for him, it might very well be that his dismissal would have been unfair on the basis that the respondent - by its failure to follow this procedure and contractual obligation - had failed to give reasonable consideration to alternative work.  However, we had to bear in mind the fact that the applicant’s own decision to accept the redundancy and dismissal as from 6 July 1995 effectively cut short any attempts to obtain such work for him:  indeed, in our view, it made further efforts and the previous failings irrelevant.  It seemed to us that it was not a matter of the sort envisaged in the case of Polkey v AE Dayton Services Ltd [1988 ICR 142].  It was not a question of defects which were such as to render the dismissal unfair but without which the outcome would still have been the same, that is the applicant would still have been dismissed.  It seemed to us that, at the end of the day, the applicant, - under considerable protest and, understandably, saying that he was doing nothing of the sort, - effectively volunteered for redundancy.  Of course, he was still dismissed but he accepted that and so doing cut short the search for other work and rendered past failings in that search immaterial.  On this basis, we concluded that the dismissal was not unfair.”

	Mr Weisbard, who has appeared voluntarily for the Appellant, has submitted that the Tribunal’s approach to section 57(3) was wrong.  He submitted that they had allowed the fact that the redundancy was voluntary to overwhelm all the other factors which they should have considered.  The expression “voluntary redundancy” is not a term of art and that the circumstances of voluntary redundancy could vary greatly from case to case.  The Industrial Tribunal still had a duty to consider all the circumstances of the case, even in a case of voluntary redundancy.  They should not, in the circumstances of this case, have disregarded the failure of the employer in respect of their attempts to find alternative employment.

	We have considered this submission with care and we are most grateful to Counsel for the assistance which he has given us.  Nonetheless, we cannot accept that this point raises any arguable issue of law.

	In our judgment this was a most careful decision, clearly and fully explained.  The Tribunal properly turned their attention to section 57(3) of the 1978 Act and made clear their criticism of the employer’s conduct.  But we are not persuaded that they could have erred in their approach to Section 57(3).  They were entitled to say that the voluntary redundancy, the circumstances of which they fully understood, was of such significance as to overwhelm the other factors which they would have been minded to take into account.

	We cannot see any basis for the suggestion that this Tribunal had erred in law and accordingly this appeal must be dismissed at this preliminary stage.