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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bowyer v Siemens Plc (t/a Siemens Communications) [2005] UKEAT 0021_05_0903 (9 March 2005) URL: http://www.bailii.org/uk/cases/UKEAT/2005/0021_05_0903.html Cite as: [2005] UKEAT 21_5_903, [2005] UKEAT 0021_05_0903 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE MCMULLEN QC
MR J C SHRIGLEY
MR P M SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
REVIEW HEARING
For the Appellant | MR D BARNETT (of Counsel) Instructed by: Messrs Andersons Solicitors Queen's Bench Chambers 42 The Rope Walk Nottingham NG1 5EJ |
For the Respondent | MR P HYLAND (Solicitor) |
SUMMARY
Disability Discrimination
Employment Tribunal erred in construction of ERA s 122 and application of Boorman v Allmakes Ltd [1995] IRLR 553
HIS HONOUR JUDGE MCMULLEN QC
Introduction
"21. The Respondent's case was that the Applicant had been dismissed for redundancy / reorganisation. That is a reason which is capable of being a fair reason for dismissal and falls within the Act.
22. On the basis of the facts that they had found, the Tribunals were not satisfied however that the Respondents had discharged the burden of proof and demonstrated on a balance of probabilities that the reason why the Applicant was actually dismissed was that she was redundant within the context if this case. The question of whether or not the Applicant was genuinely redundant is a different one to the question of whether or not a redundancy situation exists. It is not for the Tribunal to speculate as to the reason for the Applicants' dismissal. On the evidence which they heard the Tribunal were unanimously not satisfied that the reasons advanced by the Respondent were the reasons why the Applicant had lost her job.
23. Although in those circumstances it might not be necessary for the Tribunal to have considered the fairness or otherwise of the decision to dismiss the Applicant, nonetheless the Tribunal did go on to consider that and were unanimously satisfied that the manner in which the [Respondents] went about the Applicant's dismissal was procedurally wholly unfair as well as substantively unfair."
Number of completed years of service for Statutory Redundancy purposes = |
17 years |
Weekly equivalent of contractual pay = | £673.15 |
Weekly pay of Statutory Redundancy purposes = |
£260.00 |
Number of weeks' pay under Statutory Redundancy rules = |
24 weeks |
Statutory Redundancy Pay = (24 weeks x £260) |
£6,240.00 |
Company Supplementary Payment = (calculated in accordance with contract of employment) |
£3,814.54 |
Total Severance Pay = | £10,054.54 |
The legislation
"122 Basic award: reductions
….
(4) The amount of the basic award shall be reduced or further reduced by the amount of-
(b) any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI or otherwise)
124A Adjustments under the Employment Act 2002
Where an award of compensation for unfair dismissal falls to be-
(a) reduced or increased under section 31 of the Employment Act 2002 (non-completion of statutory procedures), or
(b) increased under section 38 of that Act (failure to give statement of employment particulars),
the adjustment shall be in the amount awarded under section 118(1)(b) and shall be applied immediately before any reduction under section 123(6) or (7).
…
139 Redundancy
(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-
(a) the fact that his employer has ceased or intends to cease-
(i) to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed, or
(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.
(2) For the purposes of subsection (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in paragraphs (a) and (b) of that subsection would be satisfied without so treating them).
(3) For the purposes of subsection (1) the activities carried on by a local education authority with respect to the schools maintained by it, and the activities carried on by the governors of those schools, shall be treated as one business (unless either of the conditions specified in paragraphs (a) and (b) of that subsection would be satisfied without so treating them).
(4) Where-
(a) the contract under which a person is employed is treated by section 136(5) as terminated by his employer by reason of an act or event, and
(b) the employee's contract is not renewed and he is not re-engaged under a new contract of employment,
he shall be taken for the purposes of this Act to be dismissed by reason of redundancy if the circumstances in which his contract is not renewed, and he is not re-engaged, are wholly or mainly attributable to either of the facts stated in paragraphs (a) and (b) of subsection (1).
(5) In its application to a case within subsection (4), paragraph (a)(i) of subsection (1) has effect as if the reference in that subsection to the employer included a reference to any person to whom, in consequence of the act or event, power to dispose of the business has passed.
(6) In subsection (1) "cease" and "diminish" mean cease and diminish either permanently or temporarily and for whatever reason."
"195 Construction of references to dismissal as redundant etc
(1) In this Chapter references to dismissal as redundant are references to dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related.
(2) For the purposes of any proceedings under this Chapter, where an employee is or is proposed to be dismissed it shall be presumed, unless the contrary is proved, that he is or is proposed to be dismissed as redundant."
The Claimant's case
The Respondent's case
The legal principles
"In my view the answer to the question is to be found in the first limb of s.73(9) which, when suitably abstracted, provides:
'The amount of the basic award shall be reduced… by the amount of any redundancy payment awarded by the tribunal under Part VI in respect of the same dismissal…'
It is important to emphasise that s.73(9) can only apply where there has been an unfair dismissal. So the first limb contemplates a state of affairs where there has been both redundancy and unfair dismissal, for example where the employer has unfairly chosen the employee as the person to be made redundant in circumstances to which s.81(2) applies. The first limb can only apply where the dismissal has in fact been by reason of redundancy. Although without the first limb the wording of the second might have been equivocal, it is in my view impossible to construe it as applying in circumstances different from the first. Parliament cannot have intended that a reduction in the amount of a basic award should in some cases depend on whether the payment was awarded by a tribunal or made by an employer. The distinction would have been nonsensical. Like the first, the second limb only applies where the dismissal was in fact by reason of redundancy."
"14. I agree with the judgment of Nourse LJ and that Mr Boorman's appeal should be allowed. There might be much to be said for a statutory scheme which encouraged or permitted an all-purpose ex gratia payment on termination of the employment which could later be deducted, if necessary, from the basic award of compensation when the dismissal was unfair. But that is not the wording of s.73(9). It refers only to a redundancy payment and the present case was not one of redundancy: the tribunal so held.
15. As Mr Boorman put it in argument, s.73(9) was intended to apply in cases of redundancy in fact, not in other cases which the employer chooses to describe as redundancy, even if the employee accepted that description at the time.
16. If s.73(9) applies only in cases of redundancy in fact, then it cannot apply here. The full amount of the payment could of course be deducted from the amount of compensatory damages under s.74, but that does not concern the respondents because they are protected already by the statutory ceiling of £10,000 on their liability under that head."
Conclusions