Appeal No. EAT/146/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 March 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
DR D GRIEVES CBE

ANTHONY JULIAN HALLIDAY	APPELLANT

ARCHDIOCESE OF SOUTHWARK	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS K STEYN
(of Counsel)
Instructed by:
Messrs Irwin Mitchell 
Solicitors
Helen House
214-218 Tottenham High  Road
London N15 4NP	
For the Respondent	MR A CARPENTER
(Representative)
First Assist Group
Marshall Court
Marshalls Road
Sutton
Surrey SM1 4DU	

JUDGE PETER CLARK

1	This is an unhappy episode which culminated in the termination of the Appellant, Mr Halliday’s appointment as Director of Music at St George’s Cathedral, Southwark, effective on 30 April 1999; he held that post for ten years.  

2	Following termination he presented a complaint of unfair dismissal to the Employment Tribunal;  the claim was resisted.  The matter was heard by a Tribunal at London South, chaired by Mr D M Booth on 29 - 30 November 1999.

3	We see from the Tribunal’s Extended Reasons, promulgated with a decision dated 7 December 1999, that the following issues arose for determination:
(1) Was the Appellant employed by the Respondent under a contract of service or engaged under a contract for services?  If he was an employee, it was common ground that he was dismissed by the Respondent.  
(2) In such circumstances, was he dismissed for a potentially fair reason?
(3) If so, was the dismissal fair?

4	The Tribunal answered those questions as follows:

(1) He was employed under a contract of service.
(2) The reason for dismissal was redundancy, a potentially fair reason.
(3) Dismissal for that reason was fair, the Respondent having carried out sufficient consultation with the Appellant and offered him the only alternative employment available.  

5	Against the finding of fair dismissal the Appellant appeals; against the finding that he was an employee the Respondent cross-appeals.  At the outset of this hearing we ascertained from Mr Carpenter that he wishes to pursue his cross-appeal only if the Appellant’s appeal succeeded.  We therefore proceeded to consider first the appeal.  

6	In that appeal Ms Steyn’s principal submission was that:

(1) the Tribunal reached a perverse conclusion in determining that the consultation carried out with the Appellant was not unfair, and
(2) that in reaching that conclusion the Tribunal failed to take into account certain relevant factors.  

Consultation
7	The background to this matter was that the Respondent’s Cathedral Administrator, Canon Cronin, found on his appointment in 1996 that there was a financial crisis.  He conducted a survey of the Cathedral’s expenditure and looked for economies.  One possible area for a reduction, the Tribunal found in their Reasons at paragraph 18 was to alter the post held by the Appellant from full-time to part-time and to reduce the postholder’s annual salary from £15,000 to £11,000.  

8	On 18 September 1998 Canon Cronin wrote to the Appellant giving notice of his intention to move the post of Director of Music from full-time to part-time status.  He enclosed a list of duties in the reduced post paying £11,000 gross, proposing a fixed-term period of three years in the first instance.  

9	The two men discussed the proposal on 27 September, followed by a letter from Canon Cronin on 28 September.  The Appellant replied on 29 September, unhappy with the proposal.  Canon Cronin replied on 5 October, arranging a meeting for 14 October, and following that meeting Canon Cronin wrote again on 28 October, to which the Appellant replied substantively on 17 November 1998.  

10	That letter was acknowledged by Canon Cronin on 11 December and on 30 January 1999 he wrote saying that since the Appellant had rejected his offer of the new post he was giving three months notice of termination of his services, there being a dispute as to whether or not he was an employee or was working under a contract for services.  

11	The Appellant replied on 1 February 1999 saying that he had not rejected the offer, his position was that a reduction in his salary meant a reduction in his hours of work which would in turn mean that the choir’s standards would not be maintained.  

12	Canon Cronin wrote on 4 February saying that the Appellant clearly was not accepting the post on the terms offered, that is, in the letter of 18 September 1998 and that therefore the termination letter of 31 January stood.  

13	The Appellant then instructed solicitors who wrote to Canon Cronin on 5 February; he replied on 17 February and on 25 February the Appellant wrote to Canon Cronin accepting the offer contained in his letter of 18 September, subject to the Cathedral’s standard terms and conditions.  

14	A draft Statement of Particulars (terms and conditions of employment) was sent to the Appellant by employment consultants acting for the Respondent under cover of a letter dated 26 March 1999.  That letter apparently did not reach the Appellant until 31 March.  In their covering letter those representatives said:

“Whilst writing I would be pleased if you would also confirm your Schedule D reference number and the fact that you accept full liability for payment of tax and National Insurance for the period during which you have worked at the Cathedral on a self-employed basis.”

15	The Appellant then wrote on 29 April objecting to several terms in the proposed contract; further concessions were made by the Respondent but the offer was still not acceptable to the Appellant.  Accordingly his appointment terminated at the end of the notice period, 30 April 1999.  

16	We have set out the correspondence in detail to show the extent of consultation between the parties between 18 September 1998 and 30 April 1999, a period of some seven and a half months, consultation which the Tribunal found to be reasonable.  

17	In support of her argument Ms Steyn has taken us in some detail through the consultation process itself in an attempt to persuade us that the process was so flawed that no reasonable Employment Tribunal could conclude that it was adequate.  In that difficult task she has failed. It is correct to say that the precise number of hours which the Appellant was expected to work in a part-time role was not spelt out in the documentation.  

18	However, there was evidence from Canon Cronin as to the number of hours which the Appellant would be expected to work under the new contract which evidence, it seems to us, the Tribunal accepted in the light of their findings at paragraphs 18 and 35 of their Reasons.  Whatever criticism may be made of the parties’ respective positions during the consultation period the fact, as the Tribunal found, was that extensive consultation did take place.  Their conclusion that it was adequate, in our judgment, was a permissible finding.  

19	Similarly, we are not persuaded that the Tribunal failed to consider further points, urged on us by Ms Steyn, in particular, that in the final draft statement of terms and conditions of employment the Appellant’s notice period was reduced to one month, whereas in a statement issued in 1989, provision was made for three months’ notice; or that, in the letter dated 26 March 1999, the Respondent’s representative referred to outstanding tax and National Insurance liabilities, or the possibility of such outstanding liabilities, or that ultimately, the Appellant was given a comparatively short time to accept the final draft of the statement.  All these matters were before the Tribunal; they were for them to consider in the round, on the question of consultation.  

Redundancy
20	The second point taken by Ms Steyn is that there was here no redundancy because the alternative job offered, and at one time accepted by the Appellant was in fact no different to his original full-time job, save that his pay was reduced and certain other conditions were to be altered.  

21	That submission, it seems to us, fails on the facts.  The Tribunal found, and were entitled to find on the evidence, as we have earlier indicated, that the alternative post involved a reduction in hours.  Consequently they were entitled to find that the requirement for a full time employee had gone, and instead, was to be replaced by a part-time employee in the post which the Appellant had originally held.  

22	Put shortly, this Appeal is, in our judgment, an attempt to re-argue the facts.  It is not our function, on appeal, to retry factual matters, but to consider only whether the Tribunal has erred in law.  In our judgment it has not, and consequently, the appeal must be dismissed.  

In these circumstances, as we indicated earlier, Mr Carpenter does not pursue the cross-appeal and we make no Order on the employee question there raised.