Appeal No.	 EAT/161/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 March 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR P A L PARKER CBE
MS B SWITZER

MR R McDERMID	APPELLANT

THE ROYAL BANK OF SCOTLAND	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING
Revised

	APPEARANCE

For the Appellant	MR M MULLINS
(of Counsel)
MR F J DRUMMOND
Messrs Lawford & Co
Solicitors
102 - 104 Sheen Road
Richmond
Surrey
TW9 1UF	

JUDGE CLARK

1	The Appellant, Mr McDermid, was employed by the Respondent Bank from 7 July 1992 until his dismissal by notice dated 4 June 1999, which took effect on 30 August 1999.  Prior to termination of his employment his internal appeal against dismissal was rejected on 11 August.  Thereafter he launched these proceedings, complaining of unfair dismissal and breach of contract by an originating application presented to the Employment Tribunal on 13 August 1999.

2	That application came before an Employment Tribunal sitting at Stratford on 29–30 November 1999.  By a decision with extended reasons dated 16 December 1999 the Tribunal dismissed his complaint.

3	The Employment Tribunal found that at all relevant times the Appellant was one of about 100 employees throughout the Bank on the grade of Senior Treasury Manager Cooperate.  At all relevant times he was employed in the EMU unit, monitoring progress on the United Kingdom joining the European Monetary Union.  However, once it became clear that the Government would not be following the rest of the EU countries into monetary union on 1 January 1999, that unit’s days were numbered.

4	Discussions over the future of the unit and that of the Appellant commenced on 26 March 1998.  Following that meeting the Appellant’s line manager, Mr Crowe, put in train attempts to re-deploy the Appellant, but to no avail.

5	It seems that on 14 October 1998 the Bank’s Human Resources Department wrote to the Appellants union, in accordance with agreed procedures, notifying the union that the Appellant was a surplus member of staff and that attempts thus far to identify alternative employment within the organisation had been unsuccessful.  Consultation with the Appellant would commence on 16 October.  For reasons which are unclear, neither the union nor the Bank drew that letter to the Appellant’s attention.

6	In the event Mr Crowe waited, for good reason so the Employment Tribunal found, until December 1998, before seeing the Appellant again.  On that occasion Mr Crowe mentioned the word ‘redundancy’, so the Employment Tribunal found by a majority on disputed evidence.

7	By February 1999, there was little work left for the Appellant to do in the EMU unit.  Still no alternative position had presented itself for the Appellant.

8	On 18 May 1999, Mr Crowe, together with Mr Mann from Human Resources met with the Appellant.  Mr Crowe explained that there was no longer a requirement for the EMU unit.  The Appellant was the last employee in that unit.  A two week consultation period would follow, during which further efforts to re-deploy the Appellant would take place.  If unsuccessful, the Appellant would be served with notice of his redundancy

9	Those further efforts were then made, without success.  Notice of dismissal was served on 4 June.  The Appellant was not required to attend work between that date and the expiry of that notice on 30 August.

10	On those facts, the Tribunal reached the following conclusions:
(1)	The reason for dismissal was redundancy
(2)	So far as selection for redundancy was concerned, the Employment Tribunal rejected the appellant’s argument that the relevant pool consisted of all those 100 or so employees on his grade.  There was no pool.  Effectively redundancy lay where if fell.  There was no other candidate for redundancy, it was not a selection case.
(3)	Adequate consultation had taken place
(4)	The Bank made all reasonable efforts to find the Appellant alternative employment but none was available.

In these circumstance the Employment Tribunal found that the dismissal was fair.  Further, no breach of contract by the Respondent was made out.  Accordingly the complaint failed.

11	In this appeal Mr Mullins takes effectively a single point in relation to the question of the Appellants selection for redundancy.  In a helpful skeleton argument for the purpose of this preliminary hearing, he has referred us to the Court of Appeal authority of Thomas and Betts Manufacturing Co Ltd –v- Harding [1980] IRLR 255, for the proposition that there is no principle of law that redundancy selection should be limited to the same class of employee as the Appellant.  More pertinently, he has referred us to an unreported decision of this Appeal Tribunal, Taymech Ltd –v- Ryan EAT/663/94, 15 November 1994, in which the then President Mummery J, set out the following propositions: 

1.	There is no legal requirement that a selection pool should be limited to employees doing the same or similar work.
2.	The definition of the pool is primarily a matter for the employer to determine.
3.	Where an employer had genuinely applied his mind to the problem, it would be difficult for an employee to challenge an employer’s decision as to the pool.

12	Mr Mullins’ submission on the facts of this case is that it is plain that this Respondent did not apply its mind at all to the question of a pool.  In paragraph 1, of the Tribunal’s reasons they set out in the summary form the rival contentions in the case:-

“The Respondents say that the Applicant was the only member of staff left working in the European Monetary Union (EMU) Unit.  When that Unit’s function ceased, there was no selection necessary and they made reasonable but unsuccessful efforts to find the Applicant other employment.”

The Tribunal appeared to accepted those submissions, at paragraph 20, of their reasons they say in terms:- 

“The fact of the mater is that there was no pool in this case.”

In their conclusion on this part of the case at paragraph 22.2, they found:-

“… it was not a selection case.  ….There was no pool from which to select.”

13	We are just persuaded that an arguable point of law arises in this appeal.  It may be formulated in this way.  The Tribunal should have considered whether a reasonable employer would have applied his mind to the question of the appropriate pool, rather than stopping at the stage where the Appellant was the only person in the particular unit being closed down, so that it was unnecessary to go on to consider whether a wider pool for selection ought to be identified.  On this very narrow point we shall allow the matter to proceed to a full hearing.

14	The full appeal will be listed for 2 hours, category C.  There will be exchange of skeleton arguments not less than 14 days before the date fixed for appeal hearing.  Copies to be lodged with the Employment Appeal Tribunal.  No further directions are made, in particular there is no requirement for a chairman’s notes of evidence in this case.