Appeal No.	 EAT/1015/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 April 1997

Before
HIS HONOUR JUDGE D M LEVY QC
MRS P TURNER OBE
MR K M YOUNG CBE

MR R L JONES	APPELLANT

TRIMSARAN COMMUNITY COUNCIL 	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R L JONES
(Solicitor)
Messrs Brinley Morris Rees & Jones
Solicitors
3 John Street
Llanelli
Carmarthenshire
SA15  1UN	
For the Respondents	MS LINDA REES-JONES
(Solicitor)
Director of Legal & Administrative Services
Carmarthenshire County Council
County Hall
Carmarthenshire
SA31  1JP	

			JUDGE LEVY QC:  On 4 March 1996, Mr Richard Lionel Jones, a Solicitor, made a complaint to an Industrial Tribunal that he had been unfairly dismissed.  Paragraph 12 of his Originating Application reads:
“I have been employed as Clerk/Treasurer to the Trimsaran Community Council since its inception in 1986.
On 27 February 1996 I was informed my services were being dispensed with at the end of the current financial year being 31st March 1996.  No valid reason was given for my dismissal.”

	The Council put in a Notice of Appearance dated 17 April 1996 which says that the reason for dismissal was a cost-cutting exercise.  The grounds on which they intended to resist the application read as follows:
“Mr Richard Lionel Jones was advised of the economic necessity for the cost saving exercise to be initiated on October 25th 1995.
The clerk reminded the Council that his salary was based on national approved rates.
The Council felt that his salary of £3689.84 plus travelling expenses of  58.7p a mile & paying for his telephone line rental to his office was more than the Council could afford.
On reading the accounts column on the Clerk’s report for March 1996 the Council were surprised at the non-itemised bill of £810.00p for postage & stationery 1986 to 1996.  This left the Council with no money to pay the two other workers wages if it had not been for the hall management paying their dues.  The clerk is now working his three months notice & has been offered a re-engagement contract of 110 hours annually as minute secretary, wages clerk & treasurer.”

	There was a hearing before the Industrial Tribunal held at Carmarthen on 8 August 1996. The decision (“the August Decision”) was sent to the parties on 19 August 1996.  The unanimous decision of the Tribunal was that he was dismissed by reason of redundancy and his dismissal was fair.  From that decision Mr Jones appealed by Notice of Appeal received on 11 September 1991. 

	For the purpose of this appeal the Chairman has provided the Notes of Evidence.  The Notes of Evidence of the evidence in chief from a member of the Council include these passages:
“Clerk was paid 9 hours a week - Duties have lessened since reorganisation now only 1 Council and County Council.
Wanted to appoint a proper officer at 110 hours per annum at £4.50 per hour.”...
	The Extended Reasons contain this in paragraph 3:
“Early in 1995 a village forum was held, and the views of the members of the community were canvassed.  One of the main concerns expressed was the lack of provision for the young people in the village to keep them from getting into trouble.  The problem was money.  The Council decided that the wages paid to the Clerk and Surveyor could be put to better use, and that the duties of Clerk be brought “in house” and the services of a surveyor purchased as and when required.  The Local Government Act 1972 calls for the appointment of a Proper Officer to the Council, but does not demand that he be a professionally qualified person.  Mr Jones appointment was terminated, with proper notice, on the grounds of redundancy, but no redundancy payment was made.  Clearly that was an error.”

	Paragraph 4 contains further material to suggest why the redundancy was justified.  Paragraph 5 reads:
“Our conclusion is that Mr Jones was dismissed by reason of redundancy and that his dismissal was fair.  He is however entitled to a Redundancy Payment which is calculated on his age, length of service, and gross weekly wage.”

	Mr Jones applied for a review of the first sentence of the decision.  That was dealt with by the Industrial Tribunal in a hearing on a decision sent to the parties on 9 October 1996 (“the Review Decision”).  The reason for refusing the Review Decision states the hearing date of the Review Application as 8 August 1996 (that was the date of the original hearing and is clearly erroneous) on the ground that it had no reasonable prospects of success.  Paragraph 1 of the Reasons refusing the Application for Review reads: 
“The Applicant complains that the tribunal completely ignored the evidence of Councillor Meryl Gravell.  He is mistaken in that allegation.  Because Councillor Gravell’s evidence was not referred to in particular in the Decision promulgated on 19 August 1996 does not mean that it was not taken into account; it most certainly was.  The Employment Appeal Tribunal has said on a number of occasions that because a piece of evidence has not been specifically mentioned in a decision does not mean that it has not been considered by the tribunal.  What was obvious from Councillor Gravell’s evidence was that the respondent decided that the money paid to the applicant could be put to better use, and that his services would have to be terminated.  How the work was then apportioned, be at an hourly rate to a clerk, or in-house by members of the Council, is irrelevant.  The requirement for a part-time clerk at the level of remuneration that the applicant was receiving had “ceased or diminished”.  The application for a review is refused.”

	Prior to the receipt of the Review Decision, Mr Jones appealed to this Tribunal by a Notice of Appeal (apparently unsigned and undated) received on 11 September 1996.  The grounds of appeal state:
“the decision was contrary to the evidence given on behalf of both the applicant and the respondent in that the Tribunal found that the Council decided that the services of both clerk and surveyor could be dispensed with and the duties of the clerk formed by a member of the Council “a local businessman”.  The evidence given by both the applicant and the respondent was to the effect that the Counsel sought to appoint the replacement clerk at a reduced salary.  The post was advertised at the local job centre following a  resolution to that effect passed by the Council at its monthly meeting on the 22nd May 1996.
Not surprisingly in view of the remuneration offered the post did not attract any suitable applicants and following the expiration of the period of notice worked by the applicant the council were left with no-one to undertake the duties of the clerk and were obliged to make arrangements to carry out the functions of the clerk until such time as a replacement clerk could be appointed.”

	In his submissions before us this morning, Mr Jones has relied on the fact that the duties of the replacement clerk were the same as those which he carried out.  What he has not said is that the replacement clerk, according to the passage from the evidence to which we have referred, was to be paid for 110 hours a year at a cost far less than we understand was the Council’s cost of employing Mr Jones.  In the course of the hearing we have been referred to the decision of this Tribunal in Safeway Stores v Burrill [1997] IRLR 200 where the Tribunal (in which one of the Members today also sat) said this:
“The correct approach for determining what is dismissal by reason of redundancy is in terms of section 139(1)(b) involves a three-stage process:
(i)  was the employee dismissed, if so
(ii) had the requirements of the employers business for employees to carry out work of a particular kind ceased or diminished or were they expected to cease or diminish, if so
(iii) was the dismissal of the employee caused wholly or mainly by that state of affairs.”

	It is quite clear from the evidence which we have already referred that Mr Jones was dismissed.  It is also clear that the requirement of the employer’s business to employees to carry out a particular kind of work, which Mr Jones did, had very substantially diminished and/or was expected very substantially to diminish.  In those circumstances it is not surprising that the Industrial Tribunal reached the conclusion which it did, that the dismissal of Mr Jones was caused wholly or mainly by that state of affairs.  Mr Jones is not entitled to complain that the Council is able to do the work “in-house” at less cost than was the cost of employing him.

	Mr Jones in his Skeleton Argument and in his address to us made mention of a decision in Devis & Sons v Atkins [1977] 3 AER.  He do not cite that authority to us but from what he said about it, it would not appear that there was anything in that decision which in any way casts light on the judgment of the Industrial Tribunal or on the result.  This was a perfectly proper decision reached by the Industrial Tribunal.  We see no error in law and no error in the facts found.  Accordingly it is appropriate to dismiss this appeal.  We refuse the Respondents’ application for costs.