Appeal No. EAT/293/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 3 May 1995

	Before

	HIS HONOUR JUDGE J HULL QC

	MR R H PHIPPS

	MR D J JENKINS MBE

GOWRINGS OF NEWBURY LTD	APPELLANTS

MR A S GRIFFIN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR C BAYLIS
(Of Counsel)
Wallace-Jones
108 Beaufort Street
London
SW3 6BU

For the Respondent	IN PERSON

	JUDGE HULL QC:   This is an appeal to us by Gowrings of Newbury Ltd, the employers, against a decision of the Industrial Tribunal on a preliminary point on 24 January 1994, when the Tribunal, which consisted of Mr Jenkinson as Chairman, with two industrial members, sat at Reading.

	They were considering a preliminary point which arose on the complaint to them by Mr Griffin, who is an accountant, that he had been unfairly dismissed.  He had been unfairly selected for redundancy, he said, and he asked for reinstatement and compensation.  

	Mr Griffin's employment began with the Company at or near Newbury on 12 December 1989.  There came a time when the entire group, of which Gowrings of Newbury Ltd is only one part, and perhaps a not very large part, was being reorganised.  Times were hard and it was necessary to make economies.  He received a notice terminating his employment.  The notice was given on 16 March and it said, that on 16 June 1993 his position would be redundant.  There was at about that time a document which has assumed considerable importance, a Staff Notice.  

	We have been told today that that Staff Notice was exhibited on or about the date which it bears, which is also 16 March, on the notice boards and Mr Griffin himself saw it.  It described the difficulties of the Company and the re-organisation which was to take place.  The essential parts are on the second page.  The notice said: 

		"Mark Houghton is another accountant employed in the Group though not by Gowrings of Newbury Ltd:

		Mark Houghton is promoted to Accountant, Gowrings Motor Holdings and will relocate to Newbury on 1 May.  Mark's in-depth knowledge of dealership accounting and computer systems should prove invaluable.  Alan Matthews, Dealer Accountant, Gowrings of Wokingham will report direct to Mark [that was another dealership or another part of the Group which enjoyed a dealership at Woking and Matthews was the accountant there].

		It is with regret that I have to announce the redundancy of Stephen Barrance, Operations Director, Gowrings of Wokingham, and Andrew Griffin, Dealer Accountant, Gowrings of Newbury".

	So on that day, he was given notice.  His actual duties ended by agreement on 23 March 1993.  There was a meeting and that was followed by a letter on 19 April.  There had been agreement that his employment should end on 14 April.  We have been shown this letter today:

		"Further to your meeting with Tom Stone and Stephen Foale [he is the Group Finance Director] I write to confirm your redundancy package and notice arrangements regarding your employment with Gowrings of Newbury".

	Then there was salary to 14 April and then payment in lieu of notice 15 April 1993 to 16 June 1993 inclusive, free of income tax and National Insurance contributions; a substantial sum. 

	The point about that is, of course, that there are certain tax benefits for payments which are made on termination of employment and it was convenient to both parties for it to be said (at any rate) that termination was at that date and further sums were therefore to be paid free of tax; these were due in "lieu of notice" as it was put.

	Mr Griffin then left the Company.  We are not concerned with what exactly happened thereafter, but in July when he went to seek further employment he learned at the Employment Bureau that his job, as he understood it, now was being done by Mr Houghton.

	On the face of it that should not have been a great surprise to him.  Mr Houghton who was, as I say, an Accountant, was moving to Newbury and since as Mr Griffin himself says it was a question of the job having to be done by somebody, one would have thought that it would have been perfectly obvious that Mr Houghton would, or at any rate might, be the person who took over many, if not all, of Mr Griffin's jobs.

	That led him, he said, to issue his complaint to the Industrial Tribunal on 28 July, the very same day.  It is to be found at page 9 of our papers.  In that he complained of unfair dismissal by virtue of unfair selection for redundancy.  On the face of it he was not complaining that there was no redundancy situation whatever, but saying that it was unfair selection, and when one looks at the particulars he gives, he says that his employment did indeed end on 14 April 1993.  That of course, as I say, was a date which suited him for various fiscal reasons, as well as his employers.  

	But he says in paragraph 10, when he gives details of his complaint:

		"The position held by me was the sole such position within the Company [he is referring of course, to the dealership Gowrings of Newbury Ltd, not the Group] and in my opinion the Company could not function properly without a person filling that role.  I have subsequently found out that the function and all activities and responsibilities associated with it have been taken on by an individual not an employee of the Company at the time my notice of redundancy".  

	He has confirmed to us that by that he means Mr Houghton, who he had just discovered was doing apparently, as well as other duties, his own job.  And then he says:

		"I therefore claim that my position with the Company did not become redundant and that my dismissal was unfair".

	That is a different case, of course, as any lawyer would say, from the case which he puts down at first.  It is not a case of unfair selection at all, it is saying, there is no redundancy at all, or appears to be saying that.

	In those circumstances, since this IT1, the application, was made on 28 July 1993, and since on its very face it declared that his employment had ended on 14 April 1993, the Industrial Tribunal quite properly decided to try, as a preliminary issue, the question whether the application was out of time, because of course under the Act such a complaint can only be entertained if it is presented within three months of the effective date of termination unless the Industrial Tribunal concludes that "it was not reasonably practicable for it to be presented within that time", in which case it must be presented within a reasonable time thereafter.  

	So that was the matter which the Industrial Tribunal had to consider.  The employers had put in their Notice of Appearance.  That was drafted and signed by Mrs Jordan.  She is the Group Personnel Manager and therefore accepted responsibility for this document.  The dismissal is admitted; the dates are admitted, they are correct; and then she puts in her answer that it was "a rationalisation of staffing levels" and she sets out tables which show how the matter was reorganised.  There is, so far as we can see, no averment that the requirements of Gowrings of Newbury Ltd for the services of an accountant at Newbury had ceased or diminished, still less of course that Gowrings of Newbury Ltd had closed their premises.  

	So it does look on the face of it as though it was not a case of redundancy as such, but a case of reorganisation in which it was possible to retain the services of Mr Houghton and cause him to carry out at any rate most of the duties of Mr Griffin and combine that with others.  I am not going to go into all the details of the reorganisation; it is set out, to some extent at any rate, by Mrs Jordan in the particulars she attaches to the IT3.  There are two tables, table A and table B showing the organisation of the Group so far as accountancy services are concerned, before and after the reorganisation.  

	Mr Matthews, the Dealer Accountant, with the other Concession Company at Wokingham, was retained and he reported to Mr Houghton, who reported to the Managing Director, and Mr Griffin's services had been dispensed with.  Mr Houghton had moved to Newbury and it is said was carrying out those duties there.  Also attached to that Notice of Appearance was the Staff Notice, to which I have referred.

	So those were the matters which were before the Industrial Tribunal, but I should say that the matters which have been explained to us today, and the two letters of 16 March 1993 and 19 April 1993, which I have referred to, were apparently not before the Tribunal.  At any rate, they are not with our bundle.  

	When we look at the Chairman's note of the evidence at page 21, it is apparent that the case was dealt with very shortly.  It was at five past 10 on the morning of 24 January and the Chairman takes a note that they were addressed by Mr Griffin.  He gave evidence.  He was sworn.  He told them about his employment and he said:

		"A grey area where notice is given and it is uncertain whether notice worked out or not.  Written notice 16 March 1993.  To expire 16 June 1993".

	He had not said anything about a grey area in his application and it would be rather surprising if he had because, as he said, it suited him to have his services dispensed with on 14 April.

	Then he said there were the subsequent discussions with Mr Foale and the agreement was reached with Mr Foale which I have referred to shortly.  And then he says, "On 

the morning of 28 July I visited employment agency" and from what he was there told "there was substantial evidence that my duties had been taken over by him [Mr Mark Houghton].  He says "I was aware of the three month period.  I believed the effective date of termination of my employment was 16 June in accordance with my notice".  Well, that is a considerable departure from what he has told us today.  That is what he told the Tribunal.

	And that was the substance of his evidence.  Mrs Jordan was present on behalf of the Respondents.  She did not cross-examine Mr Griffin.  She did not give evidence herself.  She did not, apparently, make any submissions to the Tribunal, but left it to the Tribunal (so to speak) to reach their conclusions.  In those circumstances, the Tribunal did not hear how matters were put to us today.  

	The Tribunal gave their decision.  Having considered the question of the effective date of termination, they found that it was 14 April 1993, as he had said in his application.  They said, in the course of giving their decision:
 
		"8  However, he did present an application on the day upon which he heard that someone else might have been brought into the firm to do his job.  It was not reasonably practicable for him to have had regard to that matter until 28 July when he first heard about it and he went on to present his application on the very same day.  We find that to be within a reasonable period after the expiry of the three months' period and we extend the time to validate the application which may accordingly proceed".

	So the Tribunal decided that it was not reasonably practicable to present the application within the three months.  They referred to the doubt or difficulty over the actual date of dismissal, but the true ground of their decision is quite clearly that on 28 July Mr Griffin had found out something which he had not known before, and it was only then that it was practicable for him to present his complaint.

	On the face of it, there are some strange features of that decision.  There attached to their papers was the notice from the middle of March saying that Mr Griffin was to lose his job and saying that Mr Houghton, the Accountant, was to move to Newbury.  Mr Griffin did not suggest that he had not seen that document before the appearance was entered and he very frankly told us today that he was aware of that from the moment it was put up on the notice board.  

	So, one asks oneself, what was it that was said or learned on 28 July which could make such a difference?  One also makes the comment that of course, if this was a good reason for it not being practicable for Mr Griffin to present his complaint until then, perhaps the same argument would equally apply if a year had elapsed or five years had elapsed.  There might be a good deal to be said about that.

	But it has been explained to us in a way that it never was explained to the Industrial Tribunal because we have heard both sides and the matter has been gone into at considerable length with Mr Griffin's assistance.  The fact is, says Mr Griffin, the true nature of his complaint is this.  He had understood that his duties were to be carried out by various employees in a junior position, employees already employed by Gowrings of Newbury Ltd.  He accepted in those circumstances that the requirement for his services had ceased or diminished and that he was therefore, in that sense, redundant.  

	Then he learned, he says on 28 July, that that was not the situation.  What he discovered was that the job did still exist and that Mr Houghton was doing it.  The job had not ceased at all.  Of course, it might still very well be that it was a perfectly fair dismissal because there was the very sound reason that the Company had been obliged to reorganise in the interests of efficiency and thought it right to make this, among many other changes, and introduce Mr Houghton, who was going to do other work as well as Mr Griffin's, but there it is.

	We have been told, as I say, a great deal about this today.  We are not a tribunal of fact.  We think it a very great pity that the Tribunal was not given more assistance about the exact nature of what had happened and simply heard the evidence of Mr Griffin and nobody else. We have considerable doubt whether it can properly be said, in all these circumstances, that it was not reasonably practicable for Mr Griffin to present his complaint within the three months permitted.  But we have to remind ourselves that that is a question of fact for the Industrial Tribunal and not a matter of law for us, unless it can be said that the decision of the Tribunal is quite plainly perverse.  The employers, did begin by saying in their appeal that it was perverse.  We are not in any way satisfied that that is so, but we are satisfied that this was a decision which was reached without all the information which has been placed before us, and we think in those circumstances, it being a decision which appears, on the face of it, to contain some strange elements, that it is right that this matter should be properly looked into.  It is a strange thing that if Mr Griffin were dissatisfied with the way he had been treated and thought that he had been unfairly selected for redundancy, that he did not make an immediate complaint.  That is again a question for the Tribunal.

	We are all agreed that we are not happy with this decision as it stands and the way in which it was reached, through no fault of the Tribunal.  We think the proper course to take is for the whole question to be considered anew including, if the Tribunal thinks it right to do so, and they probably will, the question of the true effective date of termination of the employment.  But we think, in view of the inevitable embarrassment of a Tribunal being invited to reconsider a decision which has already reached, albeit perhaps on a quite inadequate basis, we should ask that this Tribunal should sit with a differently constituted membership and a different Chairman and we so order.

	So we allow the appeal to the extent that the matter is to be remitted to the Industrial Tribunal, to be tried anew by a differently constituted Tribunal.