Appeal No.	 EAT/1162/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 February 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MS D WARWICK

PEARL ASSURANCE PLC	APPELLANTS

MANUFACTURING SCIENCE AND FINANCE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A E C THOMPSON
(of Counsel)
Messrs Geoffrey Delany
Solicitors
The Pearl Assurance Centre
Lynch Wood
Peterborough
PE2 6FY	
For the Respondents	MISS J EADY
(of Counsel)
Messrs Thompson's
Congress House
Great Russell Street
London
WC1 3LW	

	JUDGE PETER CLARK:    In this case the Respondent Trade Union, MSF presented a complaint under Section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 that the Appellant, Pearl Assurance Plc, had failed to consult with the Union in circumstances to which Section 188 of the Act applied.

	The matter came before the Leicester Industrial Tribunal on 22 August 1996.  The Tribunal found that the complaint was made out and made a declaration to that effect, coupled with a protective award.  Extended Reasons for that decision are dated 10 September 1996.  Against that decision Peal now appeal.

The Statutory Provisions

	Section 188 provides:

“(1)  Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be so dismissed.
(1A)  The consultation shall begin in good time and in any event -
(a)  where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and 
(b)  otherwise, at least 30 days,
before the first of the dismissals take effect.”

	It is common ground that there was no consultation for the purposes of this complaint.  Section 189 provides by subsection (1):

“(1)  Where an employer has failed to comply with any requirement of section 188, a complaint may be presented to an industrial tribunal on that ground -
(a)  in the case of a failure relating to employee representatives, by any of the employee representatives to whom the failure related,

(b)  in the case of a failure relating to representatives of a trade union, by the trade union.
(2)  If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.”

	Section 195(1) provides:

“(1)  In this Chapter references to dismissal as redundant are references to dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related.
(2)  For the purposes of any proceedings under this Chapter, where an employee is or is proposed to be dismissed it shall be presumed, unless the contrary is proved, that he is or is proposed to be dismissed as redundant.”

	Section 298 defines dismissal by reference to the definition contained in Section 95 of the Employment Rights Act 1996.  It therefore includes “constructive dismissal” (Section 95(1)(c)).

The Facts

	Pearl, the National Assurance Company, decided to re-organise its sales force in order to comply with the requirements of the new regulatory regime introduced by the Personal Investment Authority.  In particular, by 1 July 1977 salesmen will be required to have a financial Planning Certificate Grade 1 in order to conduct general business and up to Grade 3 in order to conduct Life and Pension business.

	Under the proposed restructure the existing “Old Pearl” structure, consisting of about 4,500 sales representatives and 600 to 700 sales managers, was to be replaced by “New Pearl”, which would involve replacing the sales representatives and managers with about 3,600 agents and 1,600 area managers.  The new jobs differed materially from the old.

	The Tribunal heard oral evidence about the restructuring from Mr Jones-Glass, the MSF Regional Officer with national responsibility for members employed by Pearl, and Mr Chadwick, Pearl’s Employee Relations Manager.  The Tribunal say, in terms, that they believed the evidence of Mr Jones-Glass and had no reason to doubt the contents of the documents produced, all of which are now before us.

	In February 1996 Pearl obtained authorisation from the actuary to the Company’s Pension Fund to offer an opportunity to employees to take early retirement with an immediate pension at age 50, “The Early Release Scheme”.

	It was the Appellant’s case that all those who left under the Early Release Scheme did so voluntarily and thus were not dismissed.  We pause to observe that had that contention been accepted by the Tribunal, the complaint would have failed, applying the principle in Birch v University of Liverpool [1985] ICR 470.

	However the case advanced by the Union was that under the Company’s “Initial Selection Criteria” those in the upper ranks of the sales force were offered employment in New Pearl.  Those in the lower reaches were not, but instead were pressured into accepting early release in circumstances amounting to dismissal.  Examples of individual cases were given, some five out of the 58 who took Early Release in the first half of 1996.

	All those remaining in Old Pearl were finally dismissed by reason of redundancy in January 1997, following proper consultation.

	The Tribunal resolved the issue between the parties at paragraph 16 of the Reasons in this way:

“16.  Doing our best with the evidence which we have read and heard, we have come to the conclusion that there was a policy, albeit unstated in writing, that managers would apply the selection criteria to their sales representatives and sales managers.  Those who failed to meet the criteria would be invited to take the early retirement package.  Those who resisted appear to have become isolated so that they had little option but to accept.  The existence of the selection criteria and the absence of any written assurance that sales representatives could continue under the old regime indefinitely supports our view that the respondent aimed to have the new structure in place by the end of the year and set about in the meanwhile removing those who either were unwilling or unable to conform to the new requirement both of structure and of conformity to the regulatory regime.  Those individuals were given the option in effect of either going or becoming isolated.  If they were offered agency status, they had the option of either accepting it or going.  In any event the respondent intended unilaterally to impose new terms and conditions upon those employees.  In so far as employees were unwilling to accept and felt obliged to go, the respondent was committing a fundamental breach of contract.  Those who went were, on the evidence which we have seen in this case, constructively dismissed.”

	The Tribunal concluded in paragraph 17:

“17.  It follows, therefore, that the respondent did at the outset propose to dismiss as redundant employees of a description in respect of which the applicant was recognised by it.  ...”

	Accordingly the Tribunal made a declaration to that effect and made a protective award in relation to the 58 employees who had left under Early Release, the relevant period being 30 days from the date of the first dismissal, that was 6 April 1996.

The Appeal

	A number of points are taken by Mr Thompson on behalf of the Appellant, but ultimately it comes down to this.  Were the Tribunal’s findings in paragraph 16 of the Reasons that Pearl operated a policy of pressurising employees who did not meet the initial selection criteria to accept early release, otherwise leaving them isolated under the old regime until such time as they were dismissed by reason of redundancy, perverse?

	Tirelessly though Mr Thompson has sought to make good that submission we are unable to accept it.  The Tribunal took into account the documentary evidence adduced by Pearl and on which Mr Thompson relies, it considered the specimen cases and it accepted Mr Jones-Glass’ oral evidence.  Taking all those matters into account it came to a conclusion which we are unable to characterise as perverse.

	Really, the challenge is to the quality of the evidence adduced by the Respondent.  Mr Thompson submits that there is no evidence of the policy as found by the Tribunal.  It seems to us that that was an inference which the Tribunal was entitled to draw from the whole of the evidence before it.

	We cannot accept that the Tribunal misunderstood the evidence before it.  It may be that if they had their time again the Appellants would have led further evidence to establish that employees left under Early Release without pressure and voluntarily.  Either they did not do so, or insofar as they did, it was not accepted by the Tribunal.

	In these circumstances we can see no grounds for interfering with this Industrial Tribunal decision.  The appeal is therefore dismissed.