Appeal No.	 EAT/764/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 February 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR D G DAVIES CBE
MISS S M WILSON

MR A MARSLAND	APPELLANT

SHROPSHIRE MENTAL HEALTH NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	JUDGE PETER CLARK:     On 28 March 1977 the Appellant, Mr Marsland, commenced employment with the then Shropshire District Health Authority (“the Authority”).  On 1 April 1993 his employment was transferred to the Respondent, Shropshire Mental Health NHS Trust (“the Trust”).  That was a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 1981, preserving his then terms and conditions of employment.

	On 7 February 1995 the Trust wrote to the Appellant, warning him that he was at risk of redundancy.  Thereafter, the Respondent proceeded to dismiss him by a notice dated 14 March which took effect on 31 March 1995.  It said “by reason of redundancy”.

	On 4 May 1995 he presented a complaint of unfair dismissal to an Industrial Tribunal.  The hearing of that complaint originally commenced on 9 October 1995, but was not concluded on that day.  The hearing before the original Tribunal sitting at Shrewsbury was apparently aborted and a fresh hearing convened before a new Tribunal chaired by Mr S J Williams.

	That Tribunal sat on 16 and 17 April 1996 and dismissed the complaint.  Extended reasons for that decision are dated 23 May 1996.  It is against that decision that Mr Marsland now appeals.

	This is a Preliminary Hearing, held to determine whether the appeal raises any arguable point or points of law to go to a full appeal hearing.

The Industrial Tribunal Decision

	As appears from the Extended Reasons the Tribunal were asked to resolve a number of issues.  They can be summarised as follows:

(1)  Was there a genuine redundancy situation?

The Tribunal held that there was, and that redundancy was the reason for dismissal.

(2)  By dismissing him by reason of redundancy were the Respondents in breach of a collective agreement which the Appellant contended was incorporated into his contract of employment protecting him from compulsory redundancy?

The Tribunal found that no such protection was incorporated into his contract.

(3)  Was the selection of the Appellant reasonable?

The Tribunal held that it was.

(4)  Was there sufficient consultation?

Again, the Tribunal found that there was, indeed they concluded that it might even be said to have been generous.

(5)  Overall, found the Industrial Tribunal, the Respondent acted reasonably in treating redundancy as a sufficient reason for dismissal.

The Appeal

	Mr Marsland advances his appeal on four grounds.  We shall consider them in the order in which they appear in his Notice of Appeal.

(1)  The no compulsory redundancy provision.
There was before the Industrial Tribunal a document issued by the Authority to the Appellant in November 1984 headed “Statement of Employment Particulars”.  The Appellant signed the document on 19 November 1984, accepting the terms and conditions of contract therein contained.  In these circumstances it is a written contract of employment.  Gascol Conversions Ltd v Mercer [1974] ICR 420.

Clause 8 of the contract provides:

“Your contract is subject to the terms and conditions of service laid down by the appropriate Whitley Council”.  (Whitley).

The Appellant accepts that under Whitley an employer is permitted to declare compulsory redundancies.

However, he contended that there was further incorporated into his contract of employment a collective agreement made between the Authority and the then recognised Trade Unions in June 1988 entitled “Job Transfer affected by Organisational Change”  (The 1988 Agreement).  The introduction provides by Clause 1.3:

“The Authority remains committed to a policy of no enforced redundancy”.

The Tribunal was much exercised by the potential conflict between the scope for compulsory redundancies in Whitley which was expressly incorporated into the contract of employment, and the effect of Clause 1.3 of the 1988 Agreement.

However, the short answer to the point is first, that the Tribunal found as a fact that the 1988 Agreement was not, either expressly or by implication, incorporated into the contract, nor was there any sufficient evidence of custom and practice so as to incorporate that term into the contract.

But even had the terms of the 1988 Agreement been incorporated, it is clear that Clause 1.3 was too vague to be enforceable at the suit of the individual employee.  See Alexander v Standard Telephones & Cables Ltd (No.2) [1991] IRLR 286.

Accordingly the Tribunal were entitled to reject this argument in our judgment.

(2)  The Appellant’s second point begins with an alleged breach of the Code of Practice issued by the Department of Employment under Section 3(1) of The Industrial Relations Act 1971.

However, that Code of Practice was no longer in force at the date of dismissal.  Following repeal of the Industrial Relations Act the Code was continued in force until it was finally revoked on 1 June 1991.  Accordingly the Appellant cannot rely on the Code in this case.  He has been unable to explain to us today why he raised the point.

(3)  The Appellant complains that having obtained an order for discovery of documents on the first day of the hearing, the totality of the documents were not produced by the Respondent before the close of proceedings on the second, final day.  He says that he tried to raise the point with the Chairman, but was not allowed to speak.

We have asked him what is the relevance of those documents to the issues before the Tribunal.  He contends that the documents would have shown that he had authority to purchase goods to a value in excess of £500, so as to prove that such purchasing was part of his duties which he says were later transferred to the Estates Manager, with whom he was compared for the purpose of selection for redundancy.  In our view the point is of such marginal relevance to the issues in the case that it does not justify interference with the Tribunal’s decision on appeal.

(4)  Finally, he complains that following his dismissal the services in which he was engaged were contracted out by the Trust, and two of the gardeners formerly working for him are now employed by the contractors.  His complaint is that he was denied the benefit of the Transfer Regulations as a result of being earlier dismissed by the Trust.  In our judgment, that complaint does not go to the issue of the fairness of the employer’s decision to dismiss him when they did.

	Having considered each of the points advanced in this appeal we have concluded that none raises an arguable point of law.

	The appeal must be dismissed.