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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Elliot v. Hackney [2000] UKEAT 853_99_1301 (13 January 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/853_99_1301.html Cite as: [2000] UKEAT 853_99_1301

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APPEARANCES

 

For the Appellant	Ms L Troughton (Union Representative) UNISON Room 136 Town Hall Marte Street Hackney London E8 1EA


 


HIS HONOUR JUDGE PETER CLARK

1. By an originating application dated 18^th May 1998, and presented shortly thereafter to the Stratford Employment Tribunal, the Appellant Mr Elliot claimed a statutory redundancy payment and a voluntary severance payment which he said arose on the termination of his employment with the Respondent Council on 16^th March 1998. The claims was resisted by the Respondent on the grounds that the Appellant was not dismissed but resigned from the employment in order to pursue a different career as cabin crew, and in circumstances where no contractual entitlement to a voluntary severance payment arose. That was their pleaded case.
2. The case came on for hearing before a Tribunal sitting at Stratford under the Chairmanship of Ms S T Gill on 26^th August 1998. The Appellant was represented by Miss Troughton, his Trade Union representative who again appears on his behalf before us today. By a decision with extended reasons, promulgated on 23^rd September 1998, the Tribunal made the following findings of fact. The Appellant was employed by the Respondent from 27^th August 1991 until 16^th March 1998. In December 1997 he was notified that his post as a Senior Administrative Officer was deleted as part of a wide spread internal reorganisation. He then applied successfully for the post of Information Manager, which he took up on 19^th December 1997. Although he told the Tribunal that he found the new post too demanding and unsuitable for his capabilities, he made no such complaint to the Respondent up to and including the date of his resignation letter, namely, the 26^th January 1998. He first raised these matters in a letter to Mr Harvey, the Manager responsible for the relevant reorganisation, dated 20^th February 1998.
3. At the hearing the Respondent raised this point. They contended that voluntary severance pay was only available to "redeployees" as defined in the Council's procedures. They relied on a document, first shown to the Appellant and his representative on the day of the hearing, headed 'Framework'. It was contended that the Appellant was not a redeployee, he had been assimilated into his new post. That argument was accepted by the Tribunal and the claim to a voluntary severance payment, which was a claim based in contract, failed on that ground. The claim to a statutory redundancy payment was dismissed on the ground that the Appellant had resigned from his new post more than 4 weeks after the beginning of his trial period in that post. See Section 138 Employment Rights Act 1996. Accordingly, his complaint was dismissed.
4. No appeal was brought against that decision, (the original decision). Instead, by letter dated 5^th October 1998, he applied to the Tribunal, with the assistance of Miss Troughton, for a review of the original decision. The application was put under both Rule 11(1)(d) and (e) of the Employment Tribunals Rules of Procedure 1993. It was said that new evidence had become available which ought to be considered by the Tribunal, alternatively, the interests of justice required a review. That review application was heard by the same Employment Tribunal sitting on 5^th May 1999. The Respondent did not attend on that occasion. In a decision with extended reasons promulgated on 27^th May 1999, (the review decision), the Tribunal considered the "new evidence" which the Appellant sought to adduce. It went principally to the issue as to whether he was a redeployee or assimilee under the Council's procedures. The Tribunal concluded that even if the new evidence had been before them at the original hearing and had cast doubt as to whether or not the Appellant was an assimilee, it would have made no difference to the result since,

(a) as a redeployee the Appellant would not have been entitled to voluntary severance in circumstances where the Respondent was entitled to conclude that the new post was not suitable for him and

(b) the new evidence had no bearing on the question of any statutory redundancy pay entitlement.

5. In these circumstances, on review, the Tribunal affirmed their original decision. Against the review decision this appeal is brought. This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law to go forward to a full hearing. We should deal with each head of claim in turn.

(1) The Statutory Redundancy Payment claim;

We return to the original finding by the Tribunal, in the original decision, that the Appellant was dis-entitled to a redundancy payment by reason of the fact that he had worked for longer than the trial period of 4 weeks in his new post before resigning. Miss Troughton seeks to argue that in applying the principle of calendar weeks for the purpose of Section 138, the Tribunal fell into error by failing to take into account the fact that the relevant period included the Christmas holiday period. If those holidays are deducted then the four weeks is not completed. We think there are two difficulties with that submission. The first is that really this is a matter which ought to have been taken by way of appeal against the original decision and any such appeal is now well out of time and leave to extend time will not be given. However, there is a second substantive objection to the submission made by Miss Troughton. In Benton –v- Sanderson Kayser Ltd (1989) ICR 136, the four calendar weeks in the Applicant's trial period included an 11 day Christmas closure. The Employment Appeal Tribunal held that those days did not count since the trial period meant 4 weeks actual work. That construction was disapproved by the Court of Appeal in allowing the employers appeal and the calendar approach was re-established. It follows in these circumstances that the submission made by Miss Troughton on this point is, with respect, wrong in law and not a point which ought to go forward for further argument. As to the new evidence adduced at the review hearing, it is accepted by Ms Troughton that that evidence did not bear on the issue of the Statutory Redundancy Payment claim, as the Tribunal found in their review decision. Accordingly, we reject that challenge to the review decision insofar as it relates to the Statutory Redundancy Payment claim.

(2) Turning to the Voluntary Severance Payment claim, that can only be based on a claim for breach of contract. It is therefore important to ascertain what was the relevant contractual term giving rise to a right to a Voluntary Severance Payment. In the original decision the Tribunal decided the point against the Appellant on the basis that he was an assimilee and not a re-deployee. As an assimilee, he was not in any event entitled to a Voluntary Severance Payment. However, as a result of the further evidence adduced at the review hearing, the Tribunal were put in some doubt as to whether or not he was in truth a re-deployee or an assimilee. But, they found that even if he were a re-deployee, he would not have been entitled to a Voluntary Severance Payment because the Respondents were entitled to conclude that his alternative post was suitable for him. We have asked Miss Troughton what it is that she says was the relevant contractual term. She has referred to the 'Framework' document and submits that if a Manager and employee agree that the new job is not suitable for that employee then they could agree Voluntary Severance. It is therefore essential, it seems to us, that the Appellant show that his Manager agreed with him that the job was unsuitable. The question is not whether in fact it was unsuitable, but whether such agreement was reached. Miss Troughton accepts that there was no direct evidence before the Tribunal, either at the original hearing or at the review hearing, to the effect that any member of management agreed that the new job was unsuitable for the Appellant. That is a finding which is made by the Tribunal and one which is not and cannot be changed. The only point which is made is that Mr Harvey told the Appellant and said in his proof of evidence, that the new job undertaken by the Appellant may have been a higher grade than that which was attributed to it. That, it seems to us, was not an acceptance that the job was unsuitable for the Appellant.

6. In these circumstances it seems to us that the Tribunal were entitled to affirm their earlier decision, dismissing the Voluntary Severance payment claim on the different ground that even if he were a re-deployee he had not established, for the purposes of the contract of employment, that agreement was reached between himself and any Manager that the job was unsuitable. Accordingly we are driven to conclude that this appeal raises no arguable point of law and consequently it must be dismissed at this stage.