Appeal No UKEAT/0874/04/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 February 2005

Before
HIS HONOUR JUDGE PROPHET
MR A HARRIS
MR D SMITH

DISABILITY ACTION IN THE BOROUGH OF BARNET	APPELLANT

MR B DRUKER	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS E BANTON
(of Counsel)
Instructed by:
Messrs Levenes Solicitors
Ashley House
235-239 High Road
Wood Green
London N22 8HF	
For the Respondent	MR B DRUKER
(the Respondent in Person)	

SUMMARY

Unfair Dismissal

Whilst purporting to remind themselves of the reasonable responses test, we are satisfied that the Employment Tribunal substituted its own views for that of a reasonable employer. On the correct test the only possible conclusion was that the dismissal was fair, and we therefore substituted a decision to that effect.

HIS HONOUR JUDGE PROPHET

1.	On 18 and 19 August 2004, an Employment Tribunal sitting at Watford with Mr Gumbito-Zimuto as the Chairman, and Mrs Elkeles and Mr Underwood as the lay members, held a hearing in respect of Mr Druker’s complaint against his former employer described as Disability Action in the Borough of Barnet. Mr Druker represented himself at the Employment Tribunal, and Miss Banton of Counsel represented the employer. The outcome which was unanimous, was that Mr Druker was found to have been unfairly dismissed with an award of compensation of £5019.77. Two other complaints i.e. of sex discrimination and less favourable treatment under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 were dismissed. Extended Reasons were provided, these being sent to the parties on 23 September 2004. 

2.	We are considering today a Notice of Appeal from the employer. In Mr Druker’s answer, he also submitted a cross-appeal in respect of the Tribunal’s Decision to dismiss his complaint under the Fixed-Term Employees Regulations, but he has withdrawn that cross-appeal today and that cross-appeal is formally dismissed. In respect of the appeal, Miss Banton attends today again representing the employer, and Mr Druker is once again self-represented. The main thrust of the appeal turns on the issue of the extent in the particular circumstances to which the employer ought to have considered alternative employment for the employee whose fixed term contract has come to an end, and whether the Employment Tribunal substituted its own views for that of a reasonable employer. 

3.	We cannot begin other than by commending the overall clarity of the Extended Reasons set out by the Chairman of the Employment Tribunal, Mr Gumbito-Zimuto as to the events as they unfolded. It is apparent that Mr Druker’s employment with Disability Action in the Borough of Barnet was a genuine fixed term contract. He well knew that its continuation after just over a year, i.e. beyond 27 February 2004, was dependant on funding continuing from a charitable donation. However he was assured that the employer would look favourably on extending that contract if the funding was forthcoming. However, that funding did not continue, and consequently the employer could not extend Mr Druker’s existing fixed term contract of employment beyond that date. That non-renewal is a dismissal under section 95(1)(b) of the Employment Rights Act 1996   

4.	The Employment Tribunal decided, (and there is no challenge to this) that Mr Druker’s employment ended for some other substantial reason on the expiry of a fixed term contract, and the Employment Tribunal was then obliged to consider under section 98(4) of the Employment Rights Act 1996 whether it was fair or unfair to dismiss him for that reason having regard to the particular circumstances.

5.	The particular circumstances were that there was another post for the same number of hours available in the employer’s organisation. There were similarities in the job descriptions for that post and that of Mr Druker. The main difference was what are termed ‘befriending duties,’ which formed about a quarter of the duties in the other post. However, Mr Druker had never carried out those befriending duties. What the Employment Tribunal decided was that it was unfair for the employers not to have considered Mr Druker for that post. The way they put it is in paragraph 8 (b)(iv) of their judgment
                     
“The tribunal is of the view that a reasonable employer acting with the band of reasonable responses would have considered whether the applicant’s employment could have continued with him in a different role. The respondent in this case gave no consideration to the possibility of the applicant’s employment continuing under any circumstances.”

It seems to us that that is a somewhat incomplete statement of the situation. The Tribunal recognised a little earlier in its judgment that the employer advised Mr Druker that there was this other vacancy available, and that it was open to him to apply for it. Indeed he duly did so, albeit that he was unsuccessful.

6.	It follows that although they appear to have reminded themselves of it there was some danger of the Employment Tribunal not applying themselves properly to the range of reasonable responses test. We agree with Miss Banton that what they actually did was to decide what they would have done in the particular circumstances, rather than what was reasonable for a reasonable employer to have done. In our view, it cannot be outside the range of reasonable responses, for the employer in the particular situation, to have taken the view that they could not simply slot Mr Druker into the existing post. Indeed the Employment Tribunal never said that that is what should have been done. They merely said that the employer should have considered whether the Applicant’s employment could have continued with the employer in a different role. 

7.	Where an employee is on a continuing contract, but due to say, redundancy that must come to an end, the employee is obliged to consider alternative employment but that may involve the employee having to compete for that alternative employment. Where a genuine fixed term contract expires, the first question is whether the employer ought to renew that particular contract. If that is impossible, as indeed it was here then the employer no doubt still has to consider alternative employment availability, although perhaps to a lesser extent than where a continuing contract of employment comes to an end. If the employer, particularly a small employer like this charitable organisation advises and permits the employee whose fixed term contract has come to an end to apply for another vacancy which involves to some extent some different duties, that must be sufficient to meet the reasonable  responses test. Although the Employment Tribunal found that Mr Druker could have carried out the new duties, the employer was entitled to ascertain if there were others better suited to the position. We cannot see how the Employment Tribunal could have said that the employers gave no consideration to the possibility of Mr Druker’s employment continuing under any circumstances.

8.	We are satisfied that the Employment Tribunal went astray here by falling into the trap of substituting its own views for that of a reasonable employer in the particular circumstances.  We find unanimously that this appeal should be allowed, and we substitute a Decision that Mr Druker was not unfairly dismissed from his employment. That being so, it is not necessary for us to deal with the other matter in the appeal relating to compensation, and Miss Banton does not wish us to do so.    

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