Appeal No. EAT/0696/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 September 2001
 Judgment delivered on 17 October 2001

Before
MR RECORDER LANGSTAFF QC
MR J R CROSBY
LORD GLADWIN OF CLEE CBE JP

MS M STANKOVIC	APPELLANT

CITY OF WESTMINSTER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT 
In Person	
For the Respondent	MR ROBERT PALMER
(Of Counsel)
Instructed by
Legal Services
Westminster City Council
Westminster City Hall
64 Victoria Street
London
SW1E 6QP	

MR RECORDER LANGSTAFF QC

1.	This is an appeal against a decision of the Employment Tribunal sitting at London North, extended reasons for which were promulgated on the 30th March 2000.  The Appellant had claimed that she had been constructively dismissed, and that her dismissal was unfair.  The Tribunal rejected both claims.
2.	At a preliminary hearing before this Tribunal, presided over by His Honour Judge Altman, the appeal was rejected insofar as it related to the Appellant’s claim that she had been constructively dismissed.  So also was an allegation of bias which had been raised.  Permission for the matter to proceed further was limited to the appeal so far as it claimed that the Employment Tribunal had been wrong to hold that she had been dismissed by reason of redundancy.
THE FACTS
3.	The entitlement of the Tribunal to reach some of the conclusions of fact which it did was questioned in the appeal.  So far as the relevant facts were unchallenged, they are these.  The Appellant was employed as a part-time teacher by the Respondent.  She taught English for speakers of other languages (ESOL).  She did so under a series of fixed term contracts renewed annually, at various sites and for different agreed hours.  
4.	Cuts in the Respondent’s teaching programme were proposed for the academic year 1999/2000.  These cuts called for substantial reductions in the 450 or so part-time teaching posts which then existed.  Adjustment of part-time teaching hours in accordance with the courses which it was possible to run was not unusual, and the Respondents had reached an agreement with a trade union, NATHFE, for handling such situations. This was applied to the reductions for 1999/2000, which were considerably more substantial than usual.  
5.	The agreement required course managers to identify courses in the forthcoming academic year which were identical to courses in the current year.  The current tutor would be assigned to teach that unchanged course.  (We were, however, told in argument by the Respondent that a course was only considered unchanged if it was to be held in the same subject, on the same day of the week, at the same time, and at the same site).  Courses which were planned, but which had not been matched to current tutors in this way, would then be offered to the remaining tutors.  
6.	For the academic year 1999/2000, the total number of hours to be devoted to teaching ESOL was not reduced compared to the year 1998/1999.  The reduction in teaching hours overall occurred in other subjects.
7.	On 8th March 1999, the Appellant was written to.  The terms of that letter are important, for reasons to which we shall return.  It read:
“Re:  Teaching for 1999/2000 Academic Year
Each year the Service commences a process in February which culminates in the issuing of contracts to the part-time tutor workforce during the Spring and Summer terms.  The Service has employed over 400 part-time tutors during 1998/99 and wishes to re-offer work for 1999/2000 as soon and as fairly as possible.  The purpose of the process is to minimise the risk of redundancy to the part-time tutor workforce.
We have now planned the programme for the next academic year (1999/2000) and this letter starts the process to identify tutors to delivery the programme.

Stage One
The first stage is to establish whether all part-time tutors employed during 1998/99 are available for work in 1999/2000.  Each year there are a substantial number of tutors who leave the Service so it is vital that you complete the attached letter and return it in the pre-paid envelope as soon as possible (the completed form must be returned to the AES by Monday 22nd March 1999).
Stage Two
The second stage is in two parts:  
(a)	relates to tutors who are available for work but where the work no longer exists (i.e. vulnerable to redundancy).  
(b)	Relates to curriculum areas where no tutors are available to teach in 1999/2000 but where the classes still exist.   The “vulnerable tutors” and will be ‘ring-fenced’ to those tutors described in (a).
All part-time tutors available for work in 1999/2000 will be advised by the end of April 1999 of their actual status with regard to the above.  They will either receive a contract offering work or they will be advised that the Service is unable to offer any teaching for the next academic year and will be provided with a list of the teaching posts available.  All the options available will be clearly explained to them.
The accompanying flowchart outlines the process in relation to the employment of part-time tutors for 1999/2000.  Your co-operation in this process is vital so that the Service can treat all its part-time workforce with equity and fairness.”
Despite the promise contained in the letter that the part-time tutors (and therefore the Appellant herself) would be advised by the end of April 1999 of their actual status (that is, whether they were vulnerable to redundancy or not) the Appellant was not told of her proposed hours of working until she received a letter in July.  Although nothing may turn on the precise date, the Employment Tribunal recorded it at Paragraph 4, page 7 as 9th July 1999.  The evidence before them was that of the writer of the letter, whose statement had said “On or about 9th July…”, and the evidence of the Appellant who had noted on her letter that it was the 13th July:  the letter was one of a series of pro-forma letters sent to part-time tutors, headed “Date as postmarked” at the top of the page.  Argument proceeded before us on the footing that 13th July was probably the correct date of receipt.
8.	This letter read as follows:-
“Re:  Part-Time Tutor Contracts for Academic Year 1999/2000
The Service is only able to offer you the teaching for the next academic year as detailed on the enclosed contract.  The Service acknowledges that these hours are a significant reduction upon the hours that you taught last year and accordingly you have three options.  
Option 1 – Reject all work offered and seek compensation for redundancy (details of the redundancy scheme are enclosed).
Option 2 – Accept all work offered and apply for additional suitable teaching vacancies as appropriate (please indicate on the enclosed vacancy list which teaching you wish to be considered for by ticking the relevant box and return the list with a copy of your CV).
Option 3 – Accept all work offered as detailed on the enclosed contract.
It is vital that you reply to this letter by indicating which of the 3 options you are accepting by 21st July 1999.  Failure to accept this offer by the above date will mean that the work will be offered elsewhere.  If you are accepting your contract please ensure that all details are correct and sign and return the contract in the pre-paid envelope provided….”.

9.	The Appellant was offered 180 hours’ work.  This was a reduction of 85 hours below that which she had been working in the then current year.  
THE LAW
10.	Section 98 of the Employment Rights Act 1996 requires the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.  By Section 98(2) one such reason is that the employee was redundant.  
11.	By virtue of Section 139 of the Employment Rights Act 1996, an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to: 
“(1)(b) the fact that the requirements of that business –
(i)	for employees to carry out work of a particular kind…..have ceased or diminished or are expected to cease or diminish.”

12.	The Employment Tribunal rightly directed itself, in accordance with the House of Lords decision in Murray & Another v. Foyle Meats Limited [1999] ICR 827 that attributability of a dismissal to the ceasing or diminishing of work of a particular kind was a question of causation.  Section 98(4) of the 1996 Act provides:-
“Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a)	depends upon whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b)	shall be determined in accordance with equity and the substantial merits of the case.”

13.	There is no specific requirement in Section 98, or elsewhere in the Employment Rights Act 1996, for there to be any consultation in respect of redundancy.  However, it is well recognised that the determination of whether a dismissal is fair or unfair is likely to turn significantly upon the question of whether there has been sufficient consultation, normally with the individual employee subject to dismissal, before the dismissal is confirmed.  Moreover, although a dismissal may be fair even when there is no consultation (Polkey v. A.E. Dayton Services Limited [1988] ICR 142, even in that House of Lords authority Lord Bridge observed that in a case of redundancy an employer would not normally be acting reasonably unless he warned and consulted any employees affected or their representatives, adopted a fair basis upon which to select for redundancy, and took such steps as were reasonable to minimise redundancy by redeployment in his organisation.
14.	That reflects the more detailed guidelines laid down in Williams v. Compair Maxam Limited [1982] IRLR 83, in which Browne-Wilkinson J., giving the judgment of the Employment Appeal Tribunal regarded it as generally accepted that reasonable employers would seek to act in accordance with the following principles:-
“1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment elsewhere.
2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible.  In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant.  When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for the selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency of the job, experience, or length of service;
4. The employer will seek to ensure that the selection is made fairly and in accordance with these criteria and will consider any representations the union may make as to such selection.
5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.”

15.	Where a dismissal by reason of redundancy is one of a number of redundancies, there is a requirement that the employer should inform and consult the employees concerned or their representatives.  This derives from European Directive 75/129/EEC, currently reflected in the Collective Redundancies Directive 98/59/EC, implemented in national legislation by Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992.  Those Regulations do not, in the present case, require consultation with the individual employee:  but lend emphasis to the importance that there should be consultation in any case in which redundancy is contemplated.  It is worth noting that consultation in such a case is to begin “in good time”, and that Section 188(1A) requires it to occur at the latest at least 30 days before the first dismissal takes place in a situation in which it is proposed to dismiss 20 or more employees at any one establishment.  
16.	The Tribunal directed itself in these terms:  
“In looking at the process leading to redundancy a Tribunal will look at the warning given, whether or not consultation has taken place with the appropriate trade union, the extent to which alternative work has been considered and the extent of personal consultation.  Personal consultation is aimed at enabling an individual to bring to the attention of her employers personal factors which might be unknown to the employer but relevant to the decision as to selection for redundancy, and to the question of alternative work.”
Those words broadly reflect both the law which we have set out, and recognised principles of good industrial practice.
THE SUBMISSIONS OF THE PARTIES
17.	Ms. Stankovic represented herself.  She argued first that there was no redundancy, and secondly that the Tribunal erred in its determination that the procedure used to dismiss her by reason of redundancy (if such there was) was in any event flawed.  She expressed her belief that the Respondent had acted deliberately so as to secure her dismissal.
18.	She submitted that there had been no reduction in the requirements of the Respondent for work “of a particular kind”.  Those four words were vital:  in the context, they could not mean simply “teaching” but must mean “teaching of ESOL”.  It was self-evident that a further education teacher of, say, mathematics could not sensibly be pressed into service to teach, say, business studies, chemistry or ESOL, and vice-versa.  No proper consideration had been given by the Tribunal as to what the expression “of a particular kind” meant.  She pointed to the finding of fact that the number of hours devoted to teaching ESOL had not reduced.  
19.	If the Tribunal was entitled to conclude that the dismissal was by reason of redundancy, then there had been no proper consultation.  The Tribunal had regarded the letter of the 8th March as a letter warning her of redundancy, and had taken it as being part of the consultation procedure.  Yet that letter did not mention any possible cut in ESOL.  It was to be interpreted, to someone in her position, as being a request that she should indicate her availability for work next year, rather than constituting a warning that she might, though willing, have no work to do.
20.	Mr Palmer, for the Respondent, submitted that there was a fall off in work “of a particular kind”, namely part-time teaching work.  It was not incumbent upon the Employment Tribunal to identify the scope to be given to “work of a particular kind” where it appeared throughout that the relevant group of employees was those who were part-time teachers.  The process by which potential redundancy was managed had been agreed with the trade union which represented all teachers, and had been agreed on the basis that part-time teachers would be treated as a group, and not on a subject specific basis.
21.	There had been full consultation.  The letter of 8th March was followed by the letter of 13th July, and the process was diagrammatically illustrated on a flow chart which was before the Tribunal.
22.	He submitted that in paragraph 9 of its Decision, the Tribunal had fairly and accurately stated the law as generally understood.  Within the consultation process there was personal consultation.  Moreover, the Appellant was someone who had chosen to accept dismissal by reason of redundancy, because she believed that she had been constructively dismissed (see Paragraph 6 of the Tribunal’s Decision).  Had she not taken that view, the consultation process would have continued.
23.	He added that there were three potential sources of information as to the process – first, letters such as those of 8th March 1999, which themselves indicated that the process was one repeated annually; second, the contact that the Appellant would have had with her course managers; and third, the opportunity she had of attending meetings of the trade union.  To that might be added information gleaned from talking to colleagues who had been through the process.
24.	In response to the points Mr Palmer made about the adequacy of consultation the Appellant emphasised that the second page of the letter of 8th March 1999 indicated that part-time tutors available for work in 1999/2000 would be advised by the end of April if they were in fact vulnerable.  She had not been so advised (this was common ground) and thus felt she had no reason to be concerned until the letter arrived on the 13th July which stated the reverse.
CONCLUSIONS
25.	The Employment Tribunal did not expressly say what constituted the “work of a particular kind” referred to by statute.  To determine whether it was necessary for the Tribunal to do so requires us to answer the question whether the work referred to in the statute is that of the employee who is dismissed as being redundant.  In other words, if an employer finds that he no longer requires employees to perform Task A, and because of that dismisses employees engaged on Task B, is the dismissal of the latter a dismissal by reason of redundancy?
26.	If the answer to this question were untrammelled by authority, we would conclude that the wording of the statute envisaged that the “work of a particular kind” referred to in Section 139(1)(b) did not necessarily have to be work of the sort which the dismissed employee had been doing.
27.	We reach this view, on the statutory wording, because (a) no words qualify “work of a particular kind” so as to restrict it to work done by the employee himself:  to read the statute in that way would require the insertion of additional words; (b) both Section 139(1)(b)(i) and (ii) refer to “employees” in the plural.  It is thus plain that the statute has a vision beyond any particular work done by the particular employee who is dismissed; (c) Section 139 defines redundancy in terms of causation:  a dismissal is by redundancy if it is “..wholly or mainly attributable to…” the matters set out in sub-section (1)(a) and (b).  Any question of the fairness or otherwise of the dismissal falls to be answered under Section 98.  Any potential unfairness that might arise in a “bumping” situation (where A loses his work, of which there is plenty, because B whose work has disappeared is retained) is to be resolved by Section 98(4) and not by any particular construction of Section 139; and (d) such a construction would not deprive the words “of a particular kind..” of force – they indicate that Parliament had the view that redundancy might occur where there was a change in the nature of work performed by an employer, even though there is no reduction in the amount of work available, taken overall.
28.	It is not, however, a point free from authority.  However, any authority as to the proper interpretation of the statutory provisions decided prior to the House of Lords in Murray v. Foyle Meats Limited [1999] ICR 827 has to be treated with considerable reserve, save one:  that of Safeway Stores plc v. Burrell [1997] ICR 523, as to which Lord Irvine of Lairg said he entirely agreed with Judge Peter Clarke’s admirably clear reasoning and conclusions.
29.	Murray v. Foyle Meats itself emphasised that the language of Paragraph 139(1)(b) was “simplicity itself”.  It asked two questions of fact.  The first was whether one or other of various states of economic affairs existed.  The second question was whether the dismissal that took place was attributable, wholly or mainly, to that state of affairs.  That was a question of causation.
30.	In Safeway Stores plc v. Burrell, His Honour Judge Clarke dealt with the concept of “bumped redundancies” (at 539F).  He said this:
“Take this example, an employee is employed to work as a forklift truck driver, delivering materials to six production machines on the shop floor.  Each machine has its own operator.  The employer decides that it needs to run only five machines and that one machine operator must go…  Selection for dismissal is done on the last in, first out principle within the department.  The forklift truck driver has the least service.  Accordingly, one machine operator is transferred to driving the truck; the short service truck driver is dismissed.  Is he dismissed by reason of redundancy?  The answer is, yes although…there is no diminution in the requirement for forklift drivers, nevertheless there is a diminution in the requirement for employees to carry out the operators’ work and that has caused the employee’s dismissal:  see, for example, W. Gimber & Sons Limited v. Spurrett (1967) 2 I.T.R. 308 and Elliott Turbo Machinery v. Bates [1981] ICR 218.  In our judgment, the principle of “bumped redundancies” is statutorily correct…”

31.	Decisions prior to Murray v. Foyle Meats, such as Church v. West Lancashire NHS Trust [1998] IRLR 4, which came to the opposite conclusion to that expressed in Safeway Stores v. Burrell, must since the endorsement of Judge Peter Clarke’s reasoning be regarded as no longer of any authority on the point.
32.	It follows that if the Tribunal in the present case found as a fact that the requirements of the Respondents’ business for employees to carry out work of a particular kind (here, part-time teaching) had ceased or diminished, and if they found as a fact that it was by reason of that reduction in requirement that the Appellant was dismissed, they had asked themselves all the questions that the statute required.  They did not need to go on further to ask whether or not the reduction in the requirement of the employer was for work of the particular kind which the Appellant herself did (and which she would describe as “teaching ESOL”).  
33.	Whether her dismissal was fair, however, depended upon what the Employment Tribunal made of the consultation process which had occurred.  In Paragraph 16 of its decision, the Tribunal indicates that the balance was not overwhelming one way or the other – “overall the procedures which led to Ms. Stankovic’s redundancy were not operated so as to make the decision to dismiss her unfair…”, a reflection of paragraph 14 in which the Tribunal recognised that “consultation with the Applicant was not as good as it might have been; it could have been better managed.”  That appears to have been balanced, in the Tribunal’s view by what it took to be a warning in March 1999 of the possibility of forthcoming reductions in working hours.  That view of the force of the letter in March is repeated in Paragraph 16:  “they had already been informing Ms. Stankovic of her vulnerability to redundancy advised the tutors in her position would have preference for any unallocated classes.”  (italics added).
34.	It appears to us, therefore that the Tribunal regarded the letter of March 1999 as a warning that she was potentially going to be made redundant, and represented the first step in the consultation process.  Indeed, it was so argued before us by Mr Palmer.
35.	We cannot read the letter of 8th March 1999 as the Tribunal appears to have done.  On any fair reading, it is not a warning to her of her potential redundancy.  It does not say, to her, that her work may no longer exist, and ask her, if so would she be willing to teach something else.  Rather, it appears to be asking (under the heading “Stage 1”) whether the Appellant was available for work – and indeed suggests that any tutor vulnerable to redundancy would be advised of his or her status as such “by the end of April 1999” (top of the second page).
36.	If this letter could not properly be read as a warning, and as a first stage in the personal consultation process (and we do not think it can be) then it also must follow that when in April 1999 the Appellant was not advised of her vulnerability, she would have no particular reason for thinking that she was to be vulnerable.  She told us (and the Tribunal found) that her particular work continued.  
37.	The Tribunal’s erroneous view that the Respondent had warned the Applicant in March 1999 of the possibility of forthcoming reductions in working hours and therefore of consequential redundancy, appears to have been material in assessing the balance upon which its eventual conclusion as to fairness or otherwise depended.  Accordingly, the decision cannot stand.
38.	It does not, however, stop there.  The letter of 13th July was, as we were given to understand, the first occasion when the Appellant knew of the proposed reduction in her hours.  This was the letter foreshadowed by that of 8th March as being the intimation to her of her “actual status with regard to the above”.  The Tribunal in paragraph 16 after observing that the Appellant could have accepted the hours offered, which were coupled with an invitation to her to apply for additional suitable teaching vacancies, added:  “They had already in informing Ms. Stankovic of her vulnerability to redundancy advised that tutors in her position would have preference for any unallocated classes.” (italics added). This appears to suggest that the Tribunal took the view that Ms. Stankovic knew of her position prior to the letter of July 13th, and that her employer had, prior to that date told her of her vulnerability to redundancy.  We understand that there was no basis other than the two letters to which we have referred upon which they might have based this conclusion.  It is not justified by those letters.  They show that she was first told of her position, and her vulnerability, on 13th July.  For this reason, too, it appears to us that the Tribunal’s reasoning is based on a material mistake of fact.
39.	Thirdly and finally, the Tribunal observed in the second sentence of paragraph 16:  “it was clear to her that consultation on hours of work was continuing – the matter was not open and shut at that time.”  If, as would appear to be the case, this sentence is intended to reflect the force of the letter of 13th July it is an inappropriate reflection of what that letter says. The recipient of the letter was required, in bold print, to accept one or other option or else lose the opportunity of work altogether.  There does not appear to be any opportunity for further consultation about avoiding redundancy, minimising the loss of hours, or such like:  the letter was presented as a final decision, and not one whose various options were open to any further consultation.  We therefore find it difficult to accept that in any appropriate sense, given the law which we have reviewed above, there is anything worthy of the name consultation which was continuing.
40.	Even if one were to accept the self-direction which the Tribunal gave, at paragraph 9 that “personal consultation is aimed at enabling an individual to bring to the attention of her employers personal factors which might be unknown to the employer but relevant to the decision as to selection for redundancy, and to the question of alternative work” (and we should say that we regard that description as unnecessarily restrictive of the ambit of consultation) it is difficult to see the factual basis upon which the Tribunal concluded that that consultation had started, let alone “was continuing”.
41.	We have to remind ourselves that it is the province of the Employment Tribunal to determine the facts.  That is not for us.  However, a Tribunal errs in law if it reaches findings of fact which are unsustainable on the evidence before it, and its conclusion cannot stand where the facts thus found have, or might have influenced its decision.  For each of the three reasons we have identified, we think that this Tribunal came to findings of fact to which it was not entitled to come.  Accordingly, its decision as to the fairness or otherwise of the dismissal by reason of redundancy cannot stand.
42.	The evaluation under section 98(4) of the Employment Rights Act 1996 as to whether or not the dismissal of the Appellant by the Respondent was, or was not fair involves the weighing of factors other than those relating to the degree of consultation there was with her as an individual.  It will be for another Employment Tribunal to make that evaluation.  We cannot properly substitute a finding of our own.
43.	Accordingly, this appeal will be allowed, and the case will be remitted to a differently constituted Employment Tribunal to determine whether the dismissal of the Appellant by reason of the redundancy constituted by a diminution in part-time teaching work generally was unfair.