Appeal No. UKEAT/0375/07/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 October 2007
Judgment handed down on 28 January 2007

Before
HIS HONOUR JUDGE SEROTA QC
DR R CORBY
MR M WORTHINGTON

MS K JONES	APPELLANT

MEM MARKETING RETAIL SERVICES	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR M BUDWORTH
(of Counsel)
Instructed by:
Employment Intergration
The Old Barn Churchlands Business Park
Ufton Road
Harbury
Leamington Spa
Warwickshire
CV33 9HQ
	
For the Respondent	No appearance or representation by or on behalf of the Respondent	

SUMMARY
Unfair dismissal – Reasonableness of dismissal
Redundancy - Fairness
The Claimant was one of a number of Area Field managers. The Respondent made all these posts redundant. The Claimant was offered suitable alternative employment but claimed that instead she should have been considered for what was in effect a promotion to a post for which her manager did not consider she was qualified. There were no objective selection criteria for the vacant promotional post which was open to outside applicants. The ET was entitled to find on the facts it found that the Claimant could not complain she had not been fairly considered for the promotion as she had been offered suitable alternative employment elsewhere in the organisation. It was irrelevant that the parties had subsequently agreed, so as to enable the claimant to receive a redundancy package that the post originally deemed suitable was no longer suitable alternative employment. The ET was bound to consider the question objectively and clearly concluded that she had been offered suitable alternative employment.

The appeal insofar as it related to failure to comply with statutory dismissal procedures failed on the facts.

HIS HONOUR JUDGE SEROTA QC

Introduction
1.	This is an appeal by the Claimant from a decision of the Employment Tribunal at Cardiff dated 23 January 2007.  The Chairman was Dr Rachel Davies.  The Employment Tribunal dismissed the Claimant’s claim for unfair dismissal.  The appeal was initially disposed of under rule 3 then the Claimant applied under rule 3(10) for a hearing which came before Burton J on 16 July 2007.  Burton J made a Burns/Barke order and referred the appeal to a full hearing.  The Chairman most helpfully provided her response on 25 July 2007.  

2.	Before we go on to consider the factual background to this appeal we note that the Respondent is now in administration. The proceedings were, therefore stayed.  The Claimant at short notice applied for, and was granted an order from the Companies Court dated 18 October 2007 permitting the continuance of this appeal.  It would appear that the Respondent’s business was sold to a company known as Tern (or Turn) Rand Ltd.  The administrators of the Respondent believed that there may have been a TUPE transfer to Tern Rand but that company has written to the EAT in a letter of 15 October 2007 that as the Claimant was not employed by the Respondent on 14 September 2007 (the date of administration and the transfer), the TUPE Regulations do not apply so far as the Claimant’s claim is concerned.  We express no views on that contention however we understood from Mr Budworth who appeared for the Claimant on this appeal that it is accepted there was no TUPE transfer of the Claimant’s claim.  We question, therefore, the purpose of pursuing this appeal.  We were told by Mr Budworth that the Claimant had legal expenses insurance and that the insurers were not concerned with whether the claim was likely to be of material benefit to the Claimant.  Nevertheless, we express our concern that this appeal is being pursued in the circumstances we have just outlined.

Factual background
3.	The Claimant was employed by the Respondent which provided merchandising services to major retail clients.  The Claimant was employed as an Area Field Manager.  There were eleven Area Field Managers who reported to three Regional Managers.  By November 2005 the Respondent had determined on a major restructuring.  The Respondent intended that the posts of the eleven Area Field Managers and the three Regional Managers would disappear.  The Respondent would create new posts of four Territory Managers and also two Refit and Installation Co-ordinators.  The difference between the posts of Territory Manager and Area Field Manager is evident because the Territory Managers would receive a salary 30 per cent above that pertaining to Area Field Managers.  The salary of the Refit and Installation Co-ordinators would be the same as that enjoyed by Area Field Managers.

4.	There was also a post as Tesco Compliance Representative that was vacant at the time of the redundancy exercise.  This was not offered to the Claimant and the Respondent considered that it was inconceivable she would accept such a post.  The Claimant and her colleagues (that is to say the Area Field Managers and Regional Managers) were offered the opportunity to take voluntary redundancy or given the opportunity to apply for the new posts.

5.	The Claimant in fact applied for the post of Territory Manager.  The Employment Tribunal found, firstly as we have noted that the salary for this post was 30 per cent above that of her existing post.  It would involve travel of up to 300 miles per day.  In her present post the Claimant travelled to some extent but from her home.  The new posts involved liaison with senior managers whereas the Claimant in her present post only liaised with junior managers.  In her Notice of Appeal the Claimant has asserted that the new post of Territory Manager was very similar to that of the Area Field Manager but this assertion is quite contrary to the findings of the Employment Tribunal.
6.	On 19 January 2006 the Claimant attended an interview with a managing director David Cole.  It is clear that Mr Cole considered the Claimant did not have the ability to be a Territory Manager and concentrated on the offer of the post of Refit and Installation Co-ordinator, for which post it considered her to be qualified.  

7.	It is interesting to note what the Respondent said in its answer to a request for further and better particulars of its ET3:

“The Claimant was unsuccessful as it was considered that she did not have the competencies to perform the role of Territory Manager.  In her role as Area Field Manager (AFM), her performance was questionable in that she was performing the role of a Team Leader rather than an Area Field Manager.  The administration part of the role was not being performed, and she was not managing the area.  It was considered that she had the necessary skill set to perform the role of Installation and Refit Co-ordinator as opposed to Territory Manager.”

8.	She was not seriously considered for the post of Territory Manager but was offered a post as a Regional Re-fit and Installation Co-ordinator.  The Claimant rejected this offer because she wanted to be appointed as a Territory Manager.

9.	The Claimant maintained the post of Installation and Refit Co-ordinator did not constitute suitable alternative employment because it was not on the same level as her current job and she thus decided to press for a redundancy package.  Initially the Respondent was not prepared to offer her a redundancy package because the Respondent considered she had been offered suitable alternative employment.  

10.	The Claimant’s reasons for rejecting the post were as recorded by the Employment Tribunal at paragraph 13 of its decision were as follows (1) that it was of lower status; (2) that she would be on equal footing with or reporting to employees who used to work for her; (3) that the level of responsibility was significantly reduced; (4) that she would be required to travel five days a week whereas before she had been home-based; (5) the nature of the work was significantly different and was “basically a manual installation role” in which she would have to lift heavy boxes; (6) the working environment would be different from when she was home-based; (7) she would be required to travel all over the country and regularly stay at hotels; and (8) the terms and conditions were different in some respects including the fact that she would now be required to take bank holidays as annual leave.

11.	The Employment Tribunal at paragraph 14 considered that none of the Claimant’s assertions reflected what was stated in the job description for the co-ordinator’s role except insofar as it would be necessary to travel to various sites when installations and fittings were being carried out and she would not be home-based which would also have been the situation had she got the Territory Manager role.  The Employment Tribunal considered that the Respondent had dealt with all the areas of alleged unsuitability; see paragraph 18.  However the Claimant continued to reject the post.  She declined to take it for a trial period and absented herself from work.  

12.	The Claimant declined to attend the meeting on 27 February to discuss her concerns over the Refit and Installation Co-ordinator post.  The Claimant continued to absent herself from work and the absence was unauthorised.  The Respondent wrote to her on 1 March to rearrange the meeting and informed her that if she did not wish to attend the meeting and wished to terminate her employment would she please put this in writing.  The Claimant attended the meeting but made clear she was doing so under protest.  The Employment Tribunal was satisfied (see paragraph 24 of the decision) that all of the Claimant’s concerns were dealt with and the Claimant was adamant in refusing to accept that the post was suitable or give it a trial.  The Respondent wrote to the Claimant after the meeting to the effect that after discussions the Respondent “now deemed that the position would not be suitable” and the Claimant was invited to confirm she wished to take voluntary redundancy to terminate on 31 March.  She told the Employment Tribunal that what she understood by that letter was that the Respondent “had agreed to let me go”.

13.	The Claimant maintained in correspondence with the Respondent that her employment had ended on 27 January because she had rejected the offer of alternative employment.  She did not consider her redundancy was voluntary and wished her termination date to be amended to show that it was on 27 January 2006.  The Respondent agreed with this request and provided her with a statement as to the statutory redundancy payment together with 4 weeks salary in February together with a further 10 weeks’ salary to reflect some 10 weeks of notice.

14.	It is important to set out the conclusions on the facts of the Employment Tribunal as to whether the Claimant was in fact dismissed or whether her employment was terminated by agreement.
“34.	Having heard the evidence the Tribunal is in no doubt that Ms Jones was not dismissed, and that her employment was terminated by agreement. It is true that her post disappeared on 27 January, but there was no evidence whatsoever to suggest she was dismissed on that date. All the evidence was to the contrary. The Respondents continued to pay her salary and she continued to accept it. They repeatedly confirmed in correspondence that she had not been dismissed and that they had work for her. Eventually they were prepared to agree that she was voluntarily redundant with a termination date of 31 March, but at her insistence they succumbed and agreed a retrospective termination date of 27 January. The reality is she was still employed as at and after 27 January. The picture painted by the correspondence is that in response to persistent pressure by Ms Jones the Respondents eventually caved in. As she herself put it, “they had agreed to let me go”.
35.	We are satisfied that this was an agreed termination and that Ms Jones was not dismissed.
36.	However, the Respondents, no doubt mindful of their agreement in the letter of 7 March that the position would be “deemed” to be unsuitable followed by their agreement in the letter of 5 April that the termination date should be 27 January, chose not to present their case on the basis that this was an agreed termination. They preferred to present their case on the basis that they did dismiss Ms Jones and that the dismissal took place on 27 January 2006. Out of deference to that concession we proceed on the basis that Ms Jones was dismissed on 27 January 2006.”

15.	It is pertinent to also to note that in its ET3 the Respondent maintained that on 27 January 2006 the Claimant had been offered “a suitable position of Installation Refit Co-ordinator…” and that “a suitable alternative role of Installation Refit Co-ordinator was offered on the same terms and conditions which the Claimant rejected” it also asserts that after the Claimant had repeated her rejection of the alternative role and insisted she should be treated as having been made redundant as from 27 January 2006:
“at the insistence of the Claimant, the Respondent confirmed the termination of the Claimant’s employment as from 27 January 2006 on the grounds of redundancy.”

Decision of the Employment Tribunal
16.	The Employment Tribunal considered the facts of which we have given a brief summary.  The Employment Tribunal was satisfied that the reason for the Claimant’s dismissal was redundancy which was a potentially fair reason.  The Employment Tribunal went on to say this:

“39.	Under section 98 the Tribunal must be satisfied that in dismissing for the potentially fair reason, the Respondent “acted reasonably” in treating it as “sufficient reason” for dismissal. In a redundancy situation a reasonable employer is normally expected to warn and consult and to identify the pool if any from which selection is to be made, and to apply fair and objective selection criteria.
40.	In the present case there was no selection pool, because the position of Area Field Manager disappeared across the board and there was no post in which a selected Area Field Manager could be retained. The notion of a pool and selection criteria was therefore inappropriate in the circumstances of this case.”

The Employment Tribunal then went on to reject a submission that the Respondent had acted unreasonably in that it had failed to warn and consult and take reasonable steps to take suitable alternative employment.  The Employment Tribunal found as a fact that the post which she was offered was a suitable post:

“46.	We find on the evidence that the post offered was suitable. We find that Ms Jones’s’ refusal was “unreasonable” within the meaning of section 141(2) in that she ignored the job description, the invitation to suggest how the job could be made more attractive to her, the written and verbal explanations as to the nature of the work, the offers to accommodate her in areas of concern, to permit her to cherry pick staff, and to amend the terms and conditions, and in that she declined even to try the position. She was therefore not entitled to a redundancy payment. If the Respondents were• prepared to “deem” the post unsuitable and to make a redundancy payment, it was a matter for them with which the Tribunal does not interfere.”

The Employment Tribunal then went on to consider what it regarded as “the main thrust” of the Claimant’s case namely that the Respondent had acted unreasonably in failing to offer her a post as Territory Manager.  The Employment Tribunal rejected this submission:

“48.	This is rejected. Mr Cole clearly did consider her for the post, and he considered her unsuitable. His reasons were based on historical factors which in his view, were an indication as to her level of calibre. He wanted the right person for the job, and was of the opinion on rational grounds, that she was not that person. It is for an employer to decide whether an individual is the right person for the job. This was not a situation where those who had not taken voluntary redundancy could merely be absorbed into existing positions or could be selected for remaining positions within a pool. It was a matter of competition for a post which was extraneous to the redundancy situation, the successful candidate to be chosen by merit, from within or outside the workforce. This is substantiated by the facts that the post was open to an external candidate, that one post remained vacant for lack of a suitable applicant, and that had Ms Jones been suitable the post could have been filled by her.”

17.	The Employment Tribunal concluded that the dismissal was for redundancy and that the Respondent had acted reasonably and that they warned and consulted with the Claimant and offered her suitable alternative employment which she had unreasonably refused to consider.  Also accordingly “the conceded dismissal was therefore fair within the meaning of s.98 and Ms Jones was precluded by s.141 from any entitlement to redundancy pay.”

18.	The Employment Tribunal then went on to consider the case as to automatically unfair dismissal pursuant to s.98A(1) of the Employment Rights Act 1996 on the basis the Respondent had failed to comply with the procedures set out in part 1 of Schedule 2 to the Employment Act 2002.  The Employment Tribunal dealt with the Claimant’s submission that the dismissal was automatically unfair under s98A in that the Respondent had failed to notify the Claimant of a right of appeal as required by Schedule 2 of the 2002 Act.  The Employment Tribunal concluded that although the Respondent had not notified the Claimant of the right of appeal the admission of that step only led to automatically unfair dismissal if it was:

“wholly or mainly attributable to failure by the employer to comply with its requirements.” (see s.98A(1)(c) of the 2002 Act.)

The Employment Tribunal considered that the reason of the absence of notification of an entitlement to appeal was the Claimant’s conduct in her persistence that the Respondent agree a termination date which was fictitious in that the reality was that she remained in employment receiving salary and complaining of “working under protest until March and secondly to the retrospectivity of the agreed termination date demanded by her which necessitated the physical impossibility of a retrospective notification of a right to appeal”.

19.	The Employment Tribunal Chairman in the letter, to which we have referred of 25 July 2007 identified the step 1 letter as being a letter of 2 November and identified how the remaining requirements of sub-paragraph (2) were met by reason of the Respondent inviting the Claimant to meetings for which they had explained the purpose and the step 2 meeting was the individual meeting of 7 December 2005 which took place before action was taken in accordance with paragraph 2(1) of Schedule 2 and after the letters of 2 and 11 November had informed the Claimant of the basis of her redundancy and given her a reasonable opportunity to consider her response in accordance with paragraph 2(2).

The law
20.	Section 138 of the Employment Rights Act 1996 provides, so far as is relevant to this appeal as follows:
“138 No dismissal in cases of renewal of contract or re-engagement
(1)     Where—
(a) an employee's contract of employment is renewed, or he is re-engaged under a new contract of employment in pursuance of an offer (whether in writing or not) made before the end of his employment under the previous contract, and
(b) the renewal or re-engagement takes effect either immediately on, or after an interval of not more than four weeks after, the end of that employment,
the employee shall not be regarded for the purposes of this Part as dismissed by his employer by reason of the ending of his employment under the previous contract.”

21.	Section 139 provides as follows:

“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-
………………..
(b) the fact that the requirements of that business -
(i) for employees to carry out work of a particular kind, 
have ceased or diminished or are expected to cease or diminish.”

22.	Section 141 provides that an employee is not entitled to redundancy payment if he unreasonably refuses an offer of suitable alternative employment set out the provisions of s.141:

“141 Renewal of contract or re-engagement
	(1) This section applies where an offer (whether in writing or not) is made to an employee before the end of his employment—
(a) to renew his contract of employment, or
(b) to re-engage him under a new contract of employment,
with renewal or re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment.
	(2) Where subsection (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer.
	(3) This subsection is satisfied where—
(a) the provisions of the contract as renewed, or of the new contract, as to—
(i)  the capacity and place in which the employee would be employed, and
(ii)  the other terms and conditions of his employment,
would not differ from the corresponding provisions of the previous contract, or
(b) those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee.”

23.	The Employment Tribunal at paragraph 39 of its decision has, in our opinion, accurately summarised the law relating to claims for unfair dismissal on the grounds of redundancy insofar as is relevant to this case:
“39.	Under section 98 the Tribunal must be satisfied that in dismissing for the potentially fair reason, the Respondent “acted reasonably” in treating it as “sufficient reason” for dismissal. In a redundancy situation a reasonable employer is normally expected to warn and consult and to identify the pool if any from which selection is to be made, and to apply fair and objective selection criteria.”

24.	Further, at paragraph 53 of the decision the Employment Tribunal has sufficiently summarised the 3 step procedure required by part 1 Schedule 2 of the Employment Act 2002.  Section 98A.1 of the Employment Rights Act 1996 provides that a dismissal is automatically unfair if there is a failure to comply with the statutory requirements where the non-completion of the procedure is wholly or mainly attributable to a failure of the employer.  

25.	During the course of submissions we were pressed by Mr Budworth in the well known decision of the EAT in Williams v Compair Maxam Ltd [1982] IRLR 83 in relation to selection for redundancy and the importance of the employer using objective criteria in selection of employees for redundancy.  It is helpful to refer to the passage at paragraph D, 1666:02 of Harvey on Industrial Relations and employment law.  This passage cites the relevant passage from Williams v Compair Maxam:

“In Williams v Compair Maxam Ltd [1982] IRLR 83, the EAT set out the standards which should guide tribunals in determining whether a dismissal for redundancy is fair under s 98(4). Browne-Wilkinson J, giving judgment for the tribunal, expressed the position as follows:
'... there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:
1 The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.
2 The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
3 Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.
4 The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
5 The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.
The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim'.”

Notice of Appeal and Claimant’s submissions
26.	The Claimant criticises the decision of the Employment Tribunal at paragraph 40 that there was no selection pool.  Mr Budworth went on to submit that where a group of employees holding similar posts are all at risk of redundancy and that there are some but insufficient alternative posts so that some or all will be made redundant, a fair selection procedure requires that there should be objective criteria for selection for the new posts even if they are open to outside applicants.  

27.	Mr Budworth went on to criticise the absence of objective selection criteria for the new posts of Territory Manager by reference to Williams v Compair Maxam.  He submitted that there was an exact analogy between selection or people from a pool for redundancy and the need for there to be objective selection criteria for appointment to a new post.  He submitted that the employer must apply objective selection criteria for any new post even if the employer considers the employee in question to be unsuitable and even if suitable alternative employment has been offered to that employee.  

28.	Mr Budworth went on to submit that the Claimant should have been considered for the post of Territory Manager and it was unfair in effect to exclude her.  Further the Employment Tribunal at paragraph 48 of its decision was wrong to suggest at paragraph 48 that the new post of Territory Manager was “extraneous to the redundancy situation”.  We note in passing that it seems to us that the Employment Tribunal at paragraph 48 were referring to the new posts being extraneous to the decision to dispense with all eleven Area Field Managers and four Territory Managers. 

29.	In his skeleton argument Mr Budworth went so far as to submit that:

“There can be no justification for recruiting an external candidate to fill a vacant Territory Manger post thereby overlooking the duties subsisting in the pre-existing relationship with the Appellant.”

30.	Mr Budworth naturally made much of the fact in its letter of 7 March 2006 the Respondent “after much discussion…now deemed the position of Installation and Refit Co-ordinator alternative employment rather than suitable employment.” He submitted that the new job was, in any event, unsuitable; this of course is clearly contrary to the findings and decision of the Employment Tribunal.  

31.	The Respondent was criticised for failing to offer other jobs on the basis that it was not believed that the Claimant did not or would not want them.  He complained that there was insufficient evidence as to the existence of a redundancy situation and as to the criteria for selection, save from Mr Cole.  He accepted that the Claimant had sought disclosure but had never pressed for it. 

32.	He then went on to submit that the internal redundancy procedure was flawed because three stages of it were missed.  The Employment Tribunal reasoning, he submitted, was flawed and perverse.  

33.	In relation to automatic unfairness he submitted that the procedures set out in part 1 of Schedule 2 of the Employment Act 2002 had not been complied with.  He criticised the letter of 2 November 2005 as being “premature” it was a general rather than a specific letter and it was insufficient compliance with the requirement that the employer must set out in writing circumstances leaving him to contemplate dismissing the employee.  He submitted that such a letter could only be sent when a decision had been made, that the Claimant individually was to be dismissed.
34.	The step 2 meeting, he submitted, should have taken place after she had been selected for redundancy; i.e. after she had declined to take the alternative post.  The meeting of 7 December was not a proper step 2 meeting.  The decision of the Employment Tribunal in relation to its decision on automatic unfair dismissal was characterised as being perverse.

Conclusions
35.	We firstly consider that the Employment Tribunal at paragraph 40 was correct in determining that there was no selection pool as such because all Area Field Managers’ jobs disappeared “across the board” and there were no posts in which selected Area Field Manager could be retained. 

36.	Accordingly, the employer was bound to consider the offer of alternative employment.  It is, in our opinion, irrelevant to determine whether or not there was a pool or whether the pool had been properly identified because of a finding by the Employment Tribunal that the Claimant was offered suitable alternative employment which she had unreasonably refused to accept; see, for example paragraph 46.  In these circumstances no further selection criteria were necessary; that is the end of the story.  

37.	While we accept that the Claimant applied for the job of Territory Manager which she did not get and there were no clear selection criteria for that post and that that might not be good industrial practice; the Employment Tribunal made no error of law in determining that the Claimant had been offered suitable alternative employment which she had unreasonably declined to accept.

38.	We do not consider that the decision of the Respondent in its letter of 7 March 2006 that the position of Installation and Refit Co-ordinator was “alternative” rather than “unsuitable” employment precluded the Employment Tribunal from making the findings that it did that the post was suitable alternative employment and that the Claimant had unreasonably refused to accept it.  The Employment Tribunal was bound to view the matter objectively; we are satisfied that it did in coming to its conclusions in this regard.  It is clear from the decision of the Employment Tribunal that the concession made by the Respondent was in any event only made in order to enable the Claimant to obtain some form of redundancy package.  It is clear the Respondent argued before the Employment Tribunal that the Claimant had in fact been offered the suitable alternative post and this is made clear in its response.  We see no reason why the Respondent could not rely upon this as a defence to the claim of unfair selection for redundancy. 

39.	In relation to the post of Territory Manager it may be that where small numbers of applicants are concerned it might be possible for a manager to determine on the basis of prior knowledge that a particular applicant does not have the aptitude or competence for the post; this would of course be fact sensitive in every case.  However, even if good industrial practice might have required more open selection criteria for the new posts it does not assist the Claimant by reason of the finding she had been offered suitable alternative employment.

40.	Insofar as the suggestion has been made that the Claimant should have been offered the opportunity for the job at Tesco, this again does not appear to be relevant.  We are by no means sure it was raised before the Employment Tribunal and in any event the Claimant had been offered suitable alternative employment.

41.	We now turn to deal with the issues relating to the appeal process.  I am indebted to my colleagues for their considerable experience on industrial relations on the practicalities of modern redundancy procedures and practices.  We also note that the principal complaint to the Employment Tribunal in relation to the appeal process appears to have been the lack of the stage 3 appeal.  

42.	Even if there was some deficiency in the Respondent’s own compliance with its procedures the Employment Tribunal was entitled to conclude that it did not render the dismissal unfair.  Insofar as the statutory procedures are concerned the Chairman in her letter of 24 July 2007 sets out clearly the basis of finding there had been an appropriate step 1 letter (the letter of 2 November 2005) which set out the “circumstances” leading the Respondents to contemplate dismissing the Claimant, namely redundancy. That was a sufficient compliance with the procedure.  It also, as the Chairman noted, constituted the “statement” the Respondent was required to send under paragraph 1(2).

43.	As the Chairman concluded in her letter:

“The remaining requirement of sub-paragraph (2), that they invite her to attend a meeting, who satisfied that (a) in the letter of 2 November they invited her to telephone to arrange a meeting… (b) on 11 November they wrote explaining the purpose of the meetings to which he was invited… and (c) they emailed her with confirmation of the date, namely 7 December.”

44.	Further, so far as the step 2 meeting was concerned the Employment Tribunal was satisfied the individual meeting of 7 December 2005 took place before the action was taken and that was in accordance with paragraph 2(1) of Schedule 2 and after the letters of 2 and 11 November had informed Ms Jones of the basis for it and given her a reasonable opportunity to consider her response, in accordance with paragraph 2(2).  

45.	As my colleagues have pointed out the statutory procedure does not sit very happily in cases of voluntary redundancy as opposed to cases of dismissal for misconduct.  In a redundancy situation an employer might reasonably be expected to start by notifying all those potentially at risk.  This would be followed by activities and meetings designed to explore the possibility of redeployment with individuals and possibly groups.  After the end of the process if nothing had been found it would be expected that the employer might wish to take up a further meeting.  One would not expect at the end of the process where the employee has in effect asked for redundancy to have a further letter and further meetings.

46.	In the light of what we consider to be appropriate practice we can see no flaw in the reasoning of the Employment Tribunal particularly as fleshed out in the letter from the Chairman of 24 July 2007.

47.	Insofar as concerns the right of appeal we consider that the reasoning of the Employment Tribunal based on the facts that it found is unassailable, there was no purpose in having an appeal because the decision to dismiss the Claimant was made at her insistence and to facilitate her receipt of a redundancy package.

48.	For these reasons the appeal must be and is dismissed.