Appeal No.	 EAT/529/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 July 1998

Before
HIS HONOUR JUDGE J HULL QC
MR L D COWAN
MS D WARWICK

MR C RUSSELL	APPELLANT

THE LONDON BOROUGH OF HARINGEY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	JUDGE J HULL QC:     This is an appeal to us by Mr Colin Russell.  He was employed by the Respondents, the London Borough of Haringey, as what is called a Panel Administrator, in the Administration Section of the Children’s Care Service, which is part of the Housing and Social Services Department; and he worked for both the Adoption Panel and the Placement Panel, hence the name of his task.

	It appears from what we have read and heard that, after his employment began in 1992, the content of his job as Panel Administrator declined.  He therefore, as he has told us, took on other work without actually formally altering the title of his job and was, in fact, employed full time.  

	There came a time when a crisis arose.  So far as the employers were concerned they had to find savings of £200,000 in the department on salaries and they, therefore, had to reduce the labour force.  It was, to use the phrase which is sometimes used, a redundancy situation.  Their requirement for people to carry out work in their department was expected to diminish (to paraphrase slightly the language of section 139 of the Employment Rights Act).

	The question was, therefore, how they should handle the situation.  Clearly, it would be necessary for work to be redistributed and it might well be said that, although nobody’s job had become redundant as such in the sense that their work no longer existed, nonetheless it was still a redundancy situation because the requirement for people to do that work did diminish.  They would have perhaps to work more efficiently; to work in a reorganised way; perhaps some work could no longer be done, but at any rate the number of workers would diminish.  Mr Russell was selected and the way it is put by the employers in their IT3 is:

“The post particularly affected by this [the redundancy] was the post of Panel Administrator as this work had diminished over a period of time in that it was no longer sufficient for a 34 hour post.  The Respondent [the employers] assessed that the work generated by the Adoption Panel and Placement Panel equated to about 17.5 hours.  ...”

	Putting it very shortly, Mr Russell was one of those selected for redundancy.  His job was omitted, unfortunately, from the section 188 Notice which was sent to the Trade Union, but that was made good, first of all, by being added on by amendment in due course.  Mr Russell is not a member of the Union, so he was personally consulted on 12 December 1996 and told about the impending redundancy.  He was asked whether he would like to apply for various jobs.  The Tribunal went into all this.  They found that the initial attempt to offer him other work was not done in a reasonable way, but that was all put right.  

	So the Industrial Tribunal considered that all was well there and, in due course, on 31 March 1997, Mr Russell was dismissed and the employers said it is by reason of redundancy.  The employers had to show what the cause of the dismissal was.  They also would then, if they wished to escape a finding of unfair dismissal, have to show that they had behaved reasonably in dealing with the matter.  To do that they would normally have to show that they had acted justly and fairly and reasonably in selecting Mr Russell for redundancy; that they then consulted with him properly about that, with an open mind, to see whether they had properly selected him and whether it was possible to accommodate him elsewhere; whether he had any suggestions to make about the threatened redundancy; whether they had given him a proper hearing and so on.  They had to satisfy the Tribunal that they behaved reasonably.

	So far as Mr Russell is concerned, he was not his own best friend, as matters turned out.  He chose to suggest that the employers were not acting in good faith, that he was being picked on and victimised.  The Tribunal heard four witnesses in responsible positions.  They certainly did not accept any suggestion of that sort.  

	What they did was this, this is the point which concerns us.  They found that in general Mr Russell had been dealt with quite fairly, but they put it like this.  With regard to his job and his selection, “Since Mr Russell’s post was considered as a specific unit, there was no need to apply selection criteria.”  That was based, of course, on what the employers had said, namely that this post had gone down to 17½ hours and, in so far as Mr Russell was fully employed, he was employed on odd jobs outside it.  What Mr Russell said is this, “the job still exists, there is somebody else doing my job, the Panel Administration Work and the other tasks which I had been given are all being done by the same person”.

	So it was, said Mr Russell, a case in which the selection should have been justified.  The criteria should have been set out.  He should have been consulted about selection, among other things.  That was his case.  He said that his case was not dealt with and it does appear that the Tribunal has not gone into that matter, but has treated the selection as being simply a matter of saying, “well this work had diminished and therefore we will now go on to the other matters.  We are satisfied that the requirement for employees was expected to diminish because it had to diminish to make the savings and, therefore, we confine our attention to the other matters, the offering of other posts and whether that was done in a reasonable way and so on”.

	To add to this matter of doubt, one must say that there are at least two views at the moment which may shortly be resolved on the subject of what amounts to redundancy.  It might well be that on one view it can be said, well even if Mr Russell’s job continues to exist in all the ways he says it does, still if there was a redundancy situation and the requirement for jobs in the department was diminishing he could, as the expression is, be “bumped” out, that is to say as part of a reorganisation occasioned by redundancy.  He could be made redundant, not because his own job had ceased or substantially diminished or anything of that sort, but simply because it was convenient to reorganise in that way.

	On another view, that is not so, and in such a situation the employer must show, if there is to be a reorganisation along those lines, that he has acted justly in the way that he has reorganised and he must justify the selection of Mr Russell for redundancy.  

	The rival views are shown by the case of Safeway Stores Ltd v Burrell, [1997] IRLR 200 EAT, which Mr Russell himself has invited our attention to, in which this Tribunal, presided over by Judge Peter Clark, asserted the view which I first mentioned, namely that it is quite enough to show that the requirement for employees has ceased or diminished or is expected to do that and then, if there is a “bumping”, well and good as long as the employer acts fairly.  That is a perfectly valid form of redundancy.  But then there is the case of Church v West Lancashire NHS Trust [1998] IRLR 4, decided again by our own Tribunal, on this occasion chaired by its President, Morison J, in which it appears to us, although we have not heard this argued, that a different view was reached by our own Tribunal and our own Tribunal gave leave to appeal to the Court of Appeal.  

	There is that point, which is rather superimposed on the point which Mr Russell makes and there is also Mr Russell’s point, which was that his job still exists and, in those circumstances, if he was to be selected for redundancy, it was incumbent on the employers to say why he was being selected for redundancy or, as the case might be, why he was to be dismissed in a reorganisation.

	We have only heard Mr Russell this morning.  We do not know what the evidence was or, of course, what will be said in defence of this decision, but it is clear to us that this particular point was not dealt with by the Industrial Tribunal and certainly not dealt with in detail, and Mr Russell is therefore entitled, on the face of it, to say that he does not understand how his case came to be dismissed and on what basis it was dismissed.

	For that reason we think that we should allow this appeal to proceed.  We have, I hope, sufficiently indicated our reasons.  It is a matter which one hopes the Court of Appeal will have pronounced upon by the time it comes before our Tribunal.  It is a case which we are inclined to think might last a day, something of that sort, and should be in Category B.