Appeal No.	 EAT/971/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 October 1999

Before
HIS HONOUR JUDGE J ALTMAN
MRS M T PROSSER
MR J A SCOULLER

GMB	APPELLANTS

MAN TRUCK & BUS LIMITED	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR FREER
(Solicitor)
Legal Officer
GMB National Legal Department
22-24 Worple Road
London
SW19 4DD	

	JUDGE ALTMAN:	This is an appeal from the decision of the Employment Tribunal sitting at Bristol on 14th July 1999. The decision of the Employment Tribunal was to decline jurisdiction. The matter comes before us by way of preliminary hearing to determine whether there is a point of law reasonably arguable in full before the Employment Appeal Tribunal.

1.	The appellant claimed before the Employment Tribunal for a declaration of a failure to consult and otherwise comply with s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and for a protective award in accordance with s.189.

2.	The Employment Tribunal found that following the merger of their two organisations, the respondents wanted to ensure common terms of employment. The employees were notified that on 1st June 1999 their employment under the old terms was to end and employment under the new terms, with continuity being preserved, would begin for all those who attended work and thereby affirmed their acceptance. Some employees did not accept these new terms.

3.	The learned Chairman in the decision of the Employment Tribunal set out comprehensively the arguments of the parties and the body of law to which he had been referred. 

4.	In paragraph 10 of the decision the Chairman recognises the changes to the definition of redundancy that had taken place in the realm of collective negotiations and he adopts what may be described as a purposive approach. He says this:

“10	While s.195 of the Act and Commission v United Kingdom* widen the definition of redundancy under s. 139 Employment Rights Act 1996 to include (a broadly described) “re-organisation”, it is in our view not intended that that section should be interpreted to include “technical” dismissals that are not proposed to result in the loss of workers or jobs, but are merely for the purpose of implementing changes to the terms of employment. …” * [Commission of the European Communities v United Kingdom of Great Britain Northern Ireland [1994] IRLR 412 ECJ]

5.	It seems to us that it is arguable that in defining redundancy a distinction is now to be drawn between redundancy which relates to a dismissal for reasons which apply to individual matters, and dismissals to be described as collective redundancies.

6.	In the helpful skeleton argument Mr Freer refers to the current law on the matter. The Council Directive in Article 1 defines collective redundancies as “dismissal effected by an employer for one or more reasons not relating to the individual workers concerned”. The matter had received some argument later in the case to which I have referred, in which the current definition of redundancy in English labour law was found to be too narrow because it did not cover, for example, “new working arrangements within an undertaking unconnected with its volume of business”. 

7.	The English statutory law was then amended in 1992 Act by s.195 to which the Employment Tribunal referred, but that section in subsection (1) defined dismissal by adopting word for word the definition in the Directive, although, curiously, using the word “reference” rather than “meaning”. In the following way 

“ … this Chapter reference to dismissal as redundant are references to dismissal for a reason (or reasons) not related to the individual concerned …”

8.	S.139 of the Employment Rights Act 1996 appears still to define redundancy for the purposes of an application by an individual for a redundancy payment. However the definition in that section is restricted by the words “for the purposes of this Act”. S.195 of the 1992 Act appears to define the dismissal for redundancy for the purposes of the application which was before the Employment Tribunal in this case.

9.	It seems to us that the grounds of appeal raise points of law which merit argument in full before the Employment Appeal Tribunal. It seems to us arguable that in determining the definition of dismissal for redundancy the Employment Tribunal erred in referring to the definition of redundancy in s.139 of the 1996 Act, which deals with reasons relating to individual employees, rather than the special definition in s.195 of the 1992 Act, which effectively substitutes the words “collective dismissals” for “collective redundancies”.

10.	Accordingly, we give leave for this matter to proceed to a full hearing. We direct that it be listed for a day in Category C, skeleton arguments to be furnished not less than 14 days before the date listed for the hearing.