Appeal No. EAT/0141/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 May 2003

Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY CBE
MR S M SPRINGER MBE

MR W A LAMBE	APPELLANT

186K LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR W A LAMBE
In Person	

JUDGE PETER CLARK

1.	This is an appeal by Mr Lambe, the Applicant before the Reading Employment Tribunal against that Employment Tribunal’s decision promulgated with Extended Reasons on 20 January 2003, upholding his complaint of unfair dismissal but limiting compensation to seven weeks’ net pay.

2.	The background is that the Appellant commenced employment on 8 May 2000 with the Respondent, 186K Ltd, or its predecessor having transferred over to the Respondent Company during the course of his employment.  His employment ended, the Respondent said, on the grounds of redundancy on 8 February 2002 with payments including 12 weeks pay in lieu of notice.

3.	He was employed in the Corporate Finance Department.  Originally there were 3 Corporate Finance managers reporting to Martin Walker, the head of Corporate Finance.  Two left, one transferred internally to the Audit Department and the other to an associated Company.  But ultimately the Respondent decided to delete all 3 posts including that of the Appellant.

4.	His case below, advanced again today, was that his post remained and he was simply offered the option of swapping jobs with a Mr Perry from a different department.  True it is that Mr Perry transferred into the Corporate Finance Department with the title Senior Corporate Finance Manager.  

5.	The factual question for the Tribunal was whether Mr Perry was doing the same job as the Appellant had done or a different job.  They found as a fact that it was the latter.  Mr Lambe submits to us that the Employment Tribunal were wrong to find in these circumstances that he was dismissed by reason of redundancy.  The relevant statutory definition contained in section 139(1)(b) of the Employment Rights Act 1996 provides:

“An employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –
(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.”

6.	It seems to us that the facts as found by the Employment Tribunal and we are not here to retry the facts amounted to redundancy within that definition.  The post held by the Appellant disappeared either because the requirement for employees to carry out work of that particular kind had ceased or diminished or was expected to cease or diminish within the next 3 months.

7.	Accordingly, we move to the next submission made in this appeal.  The Employment Tribunal found that the pool for selection ought to have included a Mr Trafford.  They went on to find that in view of Mr Trafford’s extra experience had he been included in a selection pool with the Appellant it is the latter who would inevitably have been selected for redundancy.  Accordingly the lack of a pool at the time of dismissal had no practical effect.  Mr Lambe submits by reference to the Scottish Court of Session decision in King v Eaton Limited (no.2) [1998] IRLR 686 that it was impermissible for the Employment Tribunal to recreate the world as it never was.

8.	However, it seems to us, following the House of Lords guidance in Polkey v A E Dayton Services Ltd [1988] ICR 142, that the Employment Tribunal having found that the dismissal was unfair on the grounds of lack of consultation was then obliged to proceed to consider what difference that lack of consultation made.  That included asking itself the hypothetical question, what if a proper selection pool have been utilised would have been the position in which the Appellant found himself?

9.	In these circumstances we see no basis for interfering with that finding.  Next he invites our attention to the question of alternative employment.  The Tribunal having found that proper consultation would have led to precisely the same result and that proper consultation would have taken a further seven weeks Mr Lambe submits that the Employment Tribunal failed to consider properly the possibility that he would have accepted alternative employment, which was available had it been offered to him.

10.	The Employment Tribunal did consider that question and they found that the available alternative employment was work which the Appellant had turned down in the past.  In these circumstances they were not persuaded that he lost any opportunity to take alternative employment particularly in circumstances where he had turned down what he described as the job swap with Mr Perry before termination.

11.	Finally, he takes a point on the question of pension allowance.  Mr Lambe has explained by reference to the documents that prior to termination he was given 2 options.  One was to accept immediate dismissal with pay in lieu of notice which would and did give him a final termination payment of £23,857.61.  The alternative was to work out his notice and be paid monthly on a net basis, in which event he would have received a lump sum of £11,813.62 plus his net salary for the 3 months notice period.  
 
12.	His point before the Employment Tribunal was that he was misled by those 2 models that were put to him.  For this reason he joined the Respondent’s pension scheme but the pension scheme rules provided that where an employee left within the first 2 years of employment he would receive only his own contributions paid during the employment, he tells us at the rate of 3% of his salary.

13.	However, an employee who passed the 2 years service mark would then be entitled to a deferred pension, based not only on his own contributions but also on his employer’s contributions which he tells us were running at the rate of 25% of salary towards a final salary pension scheme.  In these circumstances he argued below that he was entitled to a sum for pension loss.

14.	The Employment Tribunal rejected that argument.  They held at paragraph 9 of their reasons that although by opting to work out his notice he would then have passed the 2 year service mark, particularly with an additional seven weeks as being the appropriate consultation period added to his actual service, nevertheless they were not persuaded on the evidence that he would have taken that option in February 2002 when dismissal took place.

15.	No doubt the Employment Tribunal balanced in their minds the options available to the Appellant.  He could either take gross pay in lieu of notice, thereby saving in the tax on 3 months salary with the possibility that he would obtain fresh employment soon so that the balance of the notice pay would be a welcome bonus, set against the prospect of an increased pension at the age of 60.

16.	This seems to us to be a matter of judgment of the Employment Tribunal with which we, limited to correcting errors of law, cannot and should not interfere.  In these circumstances having considered the way in which the appeal is put we are not persuaded that it raises any arguable point of law and consequently the appeal must be dismissed at this Preliminary Hearing stage.