Appeal No. EAT/383/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10 March 1994

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MR P SMITH

	MISS A P VALE

LITTLE CHEF 	APPELLANTS

MS S BROWN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR T P NICHOLLS
(SOLICITOR)
Messrs Dibb Lupton Broomhead
125 London Wall
London EC2Y 5AE

For the Respondent	NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE
RESPONDENT

	JUDGE B HARGROVE OBE QC:  On 28 April 1993 the Industrial Tribunal held that the Respondent had been unfairly dismissed.  She had been employed since 1988 as a personal assistant to the Regional Director of the Appellant Company.  The offices of the Regional Director were to be moved from Clayton le Dale, to Lower Whitley some 45 miles away.  This was unacceptable to the Respondent and there was a discussion about the Respondent working as a catering assistant in the Little Chef at Clayton le Dale but 3 weeks later after that the Respondent was told that she was redundant and no position was available to her.

	The Industrial Tribunal found that the reason for the dismissal was redundancy and the recognised that positions within the company were tempered by reason of restrictions which the Respondent had imposed and we have read an extensive letter in which she sets out the problems with one-parent family responsibilities.

	The Tribunal set out their reasons in the following way.  Paragraph 8 says:

		"The respondent is a large undertaking with personnel procedures commensurate with the size of the undertaking.  They are stated both in the handbook and in the individual's contract of employment.  In the circumstances of this case we would expect a reasonable employer to consult, warn and to seek alternative employment before making the applicant redundant.  We find that she was consulted and warned about the possible redundancy.  There may have been an uncertainty up until October 18th but thereafter the position was clear; the office was to close.  We accept that there was some effort on the part of Mr Black to find alternative employment and his quest was necessarily tempered by the applicant's restrictions.  We were not, however, convinced that the enquiries were as wide or as comprehensive as would be reasonable in an organisation of this size and structure.  Mr Black's evidence did not satisfy us that a thorough investigation of alternatives had taken place.  That on its own might not have led us to decide that the dismissal was unfair."

and at paragraph 10:

		"We find that the dismissal was unfair on the grounds that the respondent failed to draw the applicant's attention to her right of appeal.  There was no mention of it at the meeting on the 25 November which had so upset the applicant that it ended in tears.  Nor was there any mention of it in the letter purporting to confirm what had occurred at the meeting.  She was not accompanied at that meeting and there is a conflict of evidence over whether the offer of the catering assistant post was withdrawn.  We accepted the applicant's account of that meeting and that she was there to be told that her post was redundant, that her employment was to terminate and that there were no offers of alternative employment.  The question of whether she should be provided with some payment to cover the extra expense of travelling to Lower Whitley was not discussed at that meeting.  Mr Black said to us that he did not have authority to discuss it with her and that the decision on that question would not have been his.  We find that she was in effect denied the opportunity to appeal.  It is the responsibility of the employer to ensure that procedures are followed and to inform employees of their right of appeal.  A reasonable employer, especially where there are differences of opinion between the dismissing officer and the employee, and where the applicant was clearly upset by what she was being told, would have ensured that she was made aware of her right to appeal to the Operations Director or superior officer.  In this case if this had been done it would have clarified the dispute about what was being said and what was intended at the meeting of 25 November.  It would have enabled the question of expenses to be raised to a higher level where it could have been dealt with and the question of alternative work would have been re-opened.  We cannot say it would have been utterly useless to have held an appeal and therefore find the dismissal unfair."

The Respondent, because of lack of means, is not before us today but she has made a submission in writing which we have read and we take into account. 

	The first ground of appeal, which in all fairness to Mr Nicholls who has presented the matter on behalf of the Appellants, has not been pursued with great vigour, was that the Tribunal had substituted its own views for those of the employer.  It is obvious that the Tribunal started from the correct point, namely the words of the statute as is recommended in Iceland Frozen Foods Ltd v Jones and there is in our view nothing in this point at all.  It is common for a Tribunal to use terms which are necessarily expressions of opinion on reasonableness.  That does not imply the Tribunal has substituted its own view for that of the employer, merely that if the approach is unreasonable then it is outside the band of reasonable responses.  

	In the alternative to that aspect of the case it was said that the decision was perverse.  Again there is no validity in this point either.  The Tribunal were entitled to come to their views on this aspect of the case.  The real question here is whether they came to their views with a correct interpretation of law.  

	That brings us to the third ground and in our view, and indeed in the way it has been presented to us, the most important one; namely whether the Tribunal was in error in holding that the Appellants failed to draw the Respondent's attention to her right to appeal.  The Appellants' contentions are that there was in any event no right of appeal.  If there was one it was set forth in the staff handbook and upon the findings of the Tribunal the Respondent had received a copy of that handbook and was well aware of the matter.

	The staff handbook has been placed before us.  We have had the opportunity of reading it.  It is set out at the very first page that the handbook does not constitute either all or part of the particulars of employment.  The relevant passage occurs at page 40.  It is part of Section F.  Section F is entitled "Disciplinary Rules and Procedures" and the point being made is that that appellate procedure has no relevance at all to redundancy cases.  There are certain features within the section upon Appeals which certainly give weight to that submission.  First of all there is a reference to "Disciplinary Action" taking place in the third paragraph.  Again "Disciplinary Action" is mentioned under "Procedure" and finally again it is mentioned in Conduct of Appeal Hearing.  The only matter which could indicate a wider interpretation is that in the initial sentence of the procedure it is stated:

		"Employees of whatever level who are dissatisfied with the disciplinary/dismissal action taken against them, have the right to appeal against this decision."

After some hesitation we have reached the conclusion that that procedure is only appropriate to cases of disciplinary procedures and not to redundancies.  The reason for that can be found by tracing back the origin of this type of handbook to the Code of Practice which used to exist and it appears in paragraph 46 of that Code which sets out the steps which a reasonable employer ought to take.  There is no mention there of any right of the employee to have an appeal.

	It seems to us that there are good reasons for that.  First of all the speed with which redundancies often have to be implemented to ensure survival of the organisation for the benefit of other employees, and secondly the need to keep as far apart the concepts of discipline and redundancy, discipline being an aspect of matters which are necessary for retaining proper conduct of a business.  Generally speaking it is conduct which is avoidable on the part of an employee which is being pilloried.  On the other hand, redundancy is in almost all cases entirely a matter which can impinge upon any employee no matter how good or (as we know only too well in this Tribunal), how long serving.  

	Accordingly we have reached the view that the Tribunal was in error in holding first of all that there was any appeal procedure here.  Even if we should be wrong upon that, it seems to us that there was no duty upon the employers to draw to the employee's attention matters which were clearly set out in the handbook.  Finally, there is clearly no right in law saving very exceptional circumstances for an appeal in cases such as this. 

	The starting point is the decision in Robinson & Others v Ulster Carpet Mills Ltd [1991] IRLR 348 and the important passage occurs at page 352.  Here Lord Chief Justice Hutton states the position as follows:

		"Having made the findings which it did in favour of the appellant company I consider that it was not open to the Tribunal to find that the dismissals were unfair because the respondents were not given a right of appeal against dismissal on the ground of redundancy.

		In its decision at p.9 the Tribunal stated:

			"It seems to us not to be reasonable to deny a person an appeal against dismissal on the grounds of redundancy yet afford such an appeal to a person guilty of gross misconduct."

		But I consider that that is not a reasonable conclusion where the employees' handbook, compiled in consultation and agreement with the AT&GW Union, expressly made provision for an appeal where there was dismissal for misconduct, but made no provision for an appeal where there was dismissal for redundancy; rather it provided (in paragraph 10) that the procedure on redundancy would be:
		1.  Consultation with the trade union.
		2.  Offer of alternative work if suitable work is available.
		3.  Selection for redundancy on the basis of length of service, performance record and disciplinary record.

		Furthermore, we were informed by counsel that, whilst no Code of Practice in respect of redundancy has been issued in Northern Ireland, the Code of Practice in respect of redundancy issued in England contains no suggestion that there should be a right of appeal against dismissal for redundancy."

Leaving out various passages, the Lord Chief Justice continues:

		"My opinion that the Tribunal erred in its decision is strengthened by the statements by counsel to this Court that their researches into the very numerous cases on unfair dismissal have discovered no case where it was held that an appeal procedure was a requisite for a fair dismissal on the ground of redundancy (although I would not exclude the possibility that it would be open to an Industrial Tribunal to hold that, on the special facts of a particular redundancy case, an appeal procedure was requisite)."

	While we have obviously not heard the evidence in this case, nor unfortunately is there a transcript before us, at first flush it does not seem to us that there is a special category here which comes within the terms set out by Lord Chief Justice Hutton.

	Finally, the Tribunal dealt with the matter of the chances of an appeal producing any beneficial result in the way in which I have read in the final five lines of paragraph 10, but the Tribunal did not ask itself the question  - "What was the likelihood had there been an appeal, that such an appeal would have resulted in an amelioration of her position; what was the likelihood in other words, that she would have got a job from the Appellants.  Whilst on this issue of course the first point having succeeded, there is less force in this, for the benefit of the Tribunal to which we would send it back, it is right to say that in all cases such as this the Polkey percentage must be calculated in order to reach a just and equitable figure.

	It seems to us that the Tribunal here was deserving of every sympathy.  It is quite plain that the relevant authorities were not before it in the detail which they ought to have been.  It is nobody's fault because of the nature of the proceedings.  But had the correct authorities and the correct analysis been before the Tribunal it may well be that they would have devoted more time to those matters set forth in paragraph 8 concerning the consultation and the chances of the finding of a job within the organisation and less time to what they believed quite wrongly to be, the vital question of a right of appeal and the failure of an employer to bring it to their attention of the employee and we trust that when we send this matter back as we must do, to a new Tribunal, that aspect will be properly explored.

	Accordingly this appeal succeeds on those matters.