Appeal No.	 EAT/684/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 February 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR A D TUFFIN CBE
MR K M YOUNG CBE

GOVERNING BODY OF THOMAS MILLS HIGH SCHOOL	APPELLANT

MRS A RICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M SEYMOUR
(of Counsel)
The Solicitor
Suffolk County Council
Ipswich
IP4 2JS	
For the Respondent	RESPONDENT IN PERSON	

	JUDGE PETER CLARK:  This is an appeal by the employer, the governing body of Thomas Mills High School against a decision of the Bury St. Edmunds Industrial Tribunal that the employee, Mrs Rice, was unfairly dismissed.  That decision, with extended reasons, was dated 29 April 1997, following a two-day hearing and a further one-day discussion in Chambers.

	Mrs Rice was first employed at the School in September 1993 as a temporary part-time teacher.  She became a permanent member of staff on 1 September 1994.  Her post was 0.4 full-time equivalent but her hours could be varied between 0.25 and 0.49 of full time.  She was dismissed on the grounds of redundancy with effect from 31 August 1996.

	On 19 August 1996 she presented a complaint of unfair dismissal to the Industrial Tribunal, together with a claim of sex discrimination which was dismissed by the Industrial Tribunal and with which we are not concerned in this appeal.

	Before the Industrial Tribunal the employer was represented by a solicitor, Mr Gillespie and Mrs Rice appeared in person, as she does before us today.

	It is clear from the pleadings below that both parties arrived at the Tribunal with a common acceptance that the reason for dismissal was redundancy.  However, we are told by Mrs Rice that the Industrial Tribunal, through the Chairman, raised of its own motion an issue as to the true reason for dismissal.

	In the event the Tribunal held that the reason for dismissal was not redundancy but some other substantial reason, namely, that the head teacher and governors of the school wanted Mrs Bentley, as head of the religious studies department, to revert to full-time working after a period of part-time working due to illness.

	The Tribunal referred in their reasons to a letter from Mr Griffiths, Clerk to the Personnel Committee of the Governing Body of the School, in which he said to Mrs Rice:

“I am sorry to have to inform you that the Personnel Committee of the School’s Governing Body has selected your post to become redundant at the end of the present school year.
You will be aware of the background to this decision, which has been set out to all those staff at the school affected by the present need to reduce the school’s staffing.  You have been selected by the Personnel Committee because of the reduction in the requirements of work in the particular curricular area in which [you] have responsibility.”

	The Tribunal found that in fact there was no reduction in the need for teaching religious studies at the School.  The same number of lessons were being redistributed amongst existing staff, including Mrs Bentley.

	The short point taken by Mr Seymour in this appeal is that the Tribunal has misapplied the statutory definition of redundancy, now contained in s.139(1)(b) of the Employment Rights Act 1996.  The question is not whether there has been a reduction in work of a particular kind, but a reduction in the requirement for employees to do that work.  He relies on the decision of the Employment Appeal Tribunal in Carry All Motors v Pennington [1980] ICR 806, followed in Safeway Stores Plc v Burrell [1997] ICR 523.

	In support of the Tribunal’s approach, Mrs Rice has referred us to an unreported decision of the Employment Appeal Tribunal (Judge Hargrove QC presiding) in Frame IT v Brown (EAT/177/93) which is cited in one of the textbooks.  We have considered the transcript of the judgment in that case.  We think it can be distinguished on its facts;  there, the Industrial Tribunal found that there was no diminution in the requirement for employees to do the work.  On that basis alone the Industrial Tribunal decision was correctly upheld.

	In our judgment the submission advanced by Mr Seymour is plainly correct.  Here, there was a diminution in the requirement for employees to teach religious studies;  the work was reallocated amongst existing staff;  as a result, Mrs Rice was dismissed.  She was redundant.

	The question which then arises is what to do with this case.  The Tribunal decided the question of reasonableness under s.98(4) of the Act on the basis of the wrong reason for dismissal.  Accordingly, the decision cannot stand.  It must be set aside.

	Although the Tribunal made some findings material to the question of reasonableness which would be relevant to the redundancy reason for dismissal, there are insufficient findings for us to say with confidence what the outcome would have been had the correct reason been identified.  In these circumstances we shall remit the case for rehearing by an Industrial Tribunal on the question of reasonableness on the basis that the reason for dismissal was redundancy.

	The final question is whether the case should be remitted to the same or a different Tribunal for determination of that question.  In our view it should go to a fresh Industrial Tribunal for the following reasons:

(1)	experience has shown that there may be difficulty in reconstituting the same Industrial Tribunal in early course and it is plainly desirable that this case should be reheard as soon as possible in view of the time which has already elapsed.
(2)	The Appellant has asked us to remit the case to a fresh Industrial Tribunal for the obvious reason that it has failed before the first Tribunal last time round.
(3)	Given the part findings already made by this Industrial Tribunal which would go to the question of reasonableness on the basis of redundancy as the reason for dismissal, it may not be in the best interests of Mrs Rice for the matter to be remitted to the same Industrial Tribunal.

	Accordingly, this appeal is allowed.  The matter is remitted for rehearing before a fresh Tribunal in accordance with our direction as to the true reason for dismissal in this case.