![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> East London NHS Foundation Trust v O’connor (REDUNDANCY – Trial Period) [2019] UKEAT 0113_19_2910 (29 October 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0113_19_2910.html Cite as: [2019] UKEAT 113_19_2910, [2019] UKEAT 0113_19_2910 |
[New search] [View without highlighting] [Printable PDF version] [Help]
At the Tribunal | |
On 13 September 2019 | |
Before
HIS HONOUR JUDGE AUERBACH
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS NICOLA NEWBEGIN (of Counsel) Instructed by: Hempsons Solicitors 100 Wood Street London EC2V 7AN |
For the Respondent | MS KATE ANNAND (of Counsel) Instructed by: Thompsons Solicitors LLP Condor House 5 -10 St Pauls Churchyard London EC4M 8AL |
SUMMARY
REDUNDANCY – Trial Period
In March 2017 the Claimant in the Employment Tribunal was informed that, as a result of a reorganisation, his current role of PSI Worker was to be deleted with effect on 3 July 2017, and he was at risk of redundancy. He began a trial of a different role of Care Coordinator on 3 July 2017. The parties disagreed as to whether it was suitable alternative employment. The Claimant pursued a grievance, which was unsuccessful. The Respondent again offered the Claimant the Care Coordinator position, which he declined. It then dismissed him, in December 2017.
The Employment Tribunal decided, as a preliminary issue, that the Claimant had not actually been dismissed prior to starting the trial in the new role on 3 July 2017, and therefore that was not the start of a statutory trial period. He had only first been dismissed in December 2017.
The Respondent's appeal against that decision failed. The principal ground of appeal was that the Tribunal erred by not treating the notification of the deletion of the PSI Worker role, on an identified date, as a dismissal for the purposes of section 136(1)(a) Employment Rights Act 1996, having regard to the fact that the Claimant was employed specifically in that role. However, there is no rule of law that notification of the deletion of the post in which the employee is employed must inevitably amount to notice of dismissal. It depends on all the facts and circumstances of the case. In this case, the content of the relevant communications, and all the circumstances, were properly considered by the Tribunal to point to the conclusion that the Claimant had not been dismissed as of 3 July 2017, and therefore that the trial which he began on 3 July 2017 was not the start of a statutory trial period. Other grounds of appeal also failed.
HIS HONOUR JUDGE AUERBACH
Introduction and History of the Employment Tribunal Litigation
"135 The right.
(1) An employer shall pay a redundancy payment to any employee of his if the employee—
(a) is dismissed by the employer by reason of redundancy, or
(b) is eligible for a redundancy payment by reason of being laid off or kept on short-time.
(2) Subsection (1) has effect subject to the following provisions of this Part (including, in particular, sections 140 to 144, 149 to 152, 155 to 161 and 164).
Right on dismissal by reason of redundancy
Dismissal by reason of redundancy
136 Circumstances in which an employee is dismissed.
(1) Subject to the provisions of this section and sections 137 and 138, for the purposes of this Part an employee is dismissed by his employer if (and only if)—
(a) the contract under which he is employed by the employer is terminated by the employer (whether with or without notice),
(b) he is employed under a limited term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.
[… …]
(5) Where in accordance with any enactment or rule of law—
(a) an act on the part of an employer, or
(b) an event affecting an employer (including, in the case of an individual, his death),
operates to terminate a contract under which an employee is employed by him, the act or event shall be taken for the purposes of this Part to be a termination of the contract by the employer.
……
138 No dismissal in cases of renewal of contract or re-engagement.
(1) Where—
(a) an employee's contract of employment is renewed, or he is re-engaged under a new contract of employment in pursuance of an offer (whether in writing or not) made before the end of his employment under the previous contract, and
(b) the renewal or re-engagement takes effect either immediately on, or after an interval of not more than four weeks after, the end of that employment,
the employee shall not be regarded for the purposes of this Part as dismissed by his employer by reason of the ending of his employment under the previous contract.
(2) Subsection (1) does not apply if—
(a) the provisions of the contract as renewed, or of the new contract, as to—
(i) the capacity and place in which the employee is employed, and
(ii) the other terms and conditions of his employment,
differ (wholly or in part) from the corresponding provisions of the previous contract, and
(b) during the period specified in subsection (3)—
(i) the employee (for whatever reason) terminates the renewed or new contract, or gives notice to terminate it and it is in consequence terminated, or
(ii) the employer, for a reason connected with or arising out of any difference between the renewed or new contract and the previous contract, terminates the renewed or new contract, or gives notice to terminate it and it is in consequence terminated.
(3) The period referred to in subsection (2)(b) is the period—
(a) beginning at the end of the employee's employment under the previous contract, and
(b) ending with—
(i) the period of four weeks beginning with the date on which the employee starts work under the renewed or new contract, or
(ii) such longer period as may be agreed in accordance with subsection (6) for the purpose of retraining the employee for employment under that contract;
and is in this Part referred to as the "trial period".
(4) Where subsection (2) applies, for the purposes of this Part—
(a) the employee shall be regarded as dismissed on the date on which his employment under the previous contract (or, if there has been more than one trial period, the original contract) ended, and
(b) the reason for the dismissal shall be taken to be the reason for which the employee was then dismissed, or would have been dismissed had the offer (or original offer) of renewed or new employment not been made, or the reason which resulted in that offer being made.
(5) Subsection (2) does not apply if the employee's contract of employment is again renewed, or he is again re-engaged under a new contract of employment, in circumstances such that subsection (1) again applies.
(6) For the purposes of subsection (3)(b)(ii) a period of retraining is agreed in accordance with this subsection only if the agreement—
(a) is made between the employer and the employee or his representative before the employee starts work under the contract as renewed, or the new contract,
(b) is in writing,
(c) specifies the date on which the period of retraining ends, and
(d) specifies the terms and conditions of employment which will apply in the employee's case after the end of that period.
…..
141 Renewal of contract or re-engagement.
(1) This section applies where an offer (whether in writing or not) is made to an employee before the end of his employment—
(a) to renew his contract of employment, or
(b) to re-engage him under a new contract of employment,
with renewal or re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment.
(2). Where subsection (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer.
(3). This subsection is satisfied where—
(a) the provisions of the contract as renewed, or of the new contract, as to—
(i) the capacity and place in which the employee would be employed, and
(ii) the other terms and conditions of his employment,
would not differ from the corresponding provisions of the previous contract, or
(b) those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee.
(4) The employee is not entitled to a redundancy payment if—
(a) his contract of employment is renewed, or he is re-engaged under a new contract of employment, in pursuance of the offer,
(b) the provisions of the contract as renewed or new contract as to the capacity or place in which he is employed or the other terms and conditions of his employment differ (wholly or in part) from the corresponding provisions of the previous contract,
(c) the employment is suitable in relation to him, and
(d) during the trial period he unreasonably terminates the contract, or unreasonably gives notice to terminate it and it is in consequence terminated.
…..
145 The relevant date.
(1) For the purposes of the provisions of this Act relating to redundancy payments "the relevant date" in relation to the dismissal of an employee has the meaning given by this section.
(2) Subject to the following provisions of this section, "the relevant date"—
(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,
(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and
(c) in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect.
(3). Where the employee is taken to be dismissed by virtue of section 136(3) the "relevant date" means the date on which the employee's notice to terminate his contract of employment expires.
(4) Where the employee is regarded by virtue of section 138(4) as having been dismissed on the date on which his employment under an earlier contract ended, "the relevant date" means—
(a) for the purposes of section 164(1), the date which is the relevant date as defined by subsection (2) in relation to the renewed or new contract or, where there has been more than one trial period, the last such contract, and
(b) for the purposes of any other provision, the date which is the relevant date as defined by subsection (2) in relation to the previous contract or, where there has been more than one such trial period, the original contract.
(5) Where—
(a) the contract of employment is terminated by the employer, and
(b) the notice required by section 86 to be given by an employer would, if duly given on the material date, expire on a date later than the relevant date (as defined by the previous provisions of this section),
for the purposes of sections 155, 162(1) and 227(3) the later date is the relevant date.
(6) In subsection (5)(b) "the material date" means—
(a) the date when notice of termination was given by the employer, or
(b) where no notice was given, the date when the contract of employment was terminated by the employer."
"1 Was the trial period that commenced on 3 July 2017 a statutory trial period within the definition set out in s138 ERA?
2 Did the respondent's offer of the Care Coordinator role in the North Hackney Recovery Team comply with s141 ERA namely:
(a). Did the respondent make an offer (whether in writing or not) to the claimant before the end of his employment (a) to renew his contract of employment, or (b) to re-engage him under a new contract of employment, with renewal or re-engagement to take effect either immediately on, or after an interval of not more than 4 weeks after the end of his employment? (the claimant's position is that the offer must be made after notice of dismissal has been given).
(b). Did the offer constitute suitable alternative employment in relation to the claimant?
…."
The Decision of the Employment Tribunal
"1. The claimant was dismissed, but not until 22 December 2017.
2. The trial period commencing on 3 July 2017 was not a statutory trial period for the purposes of Part XI of the Employment Rights Act 1996."
"…..
I must advise you that the outcome of this meeting is likely [sic] to be that you will be issued with formal notice of your dismissal on grounds of redundancy. You will have an opportunity to present your views and ask any questions you wish. We will continue to search for suitable alternative employment for you throughout your notice period; this will be both within the Trust and you will be registered on the NHS London 'at risk register' for as long as you are employed by us.
At the meeting we will also discuss the number of roles which had been forwarded to you by the Redeployment Officer and the reasons for your refusal. I must inform you that should you fail to take what the Trust regards as suitable alternative employment, you will forfeit your right to a redundancy payment.
…."
"14. It has been previously agreed that this judgment will deal only with the question of whether the claimant was dismissed for the purposes of Sections 136 of the Employment Rights Act, 136(1).
15. There are 3 questions that must be answered if the claimant is to be entitled to a redundancy payment.
(1). Was the Claimant dismissed within the meaning of Section 136(1) when his PSI practitioner role ceased?
(2). Was the Care Coordinator role Band 6 in the North Hackney Recovery Team suitable alternative employment within the meaning of section 141(3)(b) of the Employment Rights Act?
(3). Did the claimant unreasonably terminate his contract during the trial period within the meaning of Section 141(4)(d) of the ERA?
16. At this part of the hearing I was only asked to resolve Issue (1). If the claimant was not dismissed at the end of his PSI practitioner role that is the end of the claim for redundancy payment. In the event I have decided, in the claimant's favour, that he was not dismissed until the end of his employment with the respondent.
17. I have also needed to decide whether this was a statutory trial period within the meaning of section 138(3)(b)(i)."
"…. You explained that you have a set of skills that will be very hard to replace. You stated you are really invested in your career academically. You feel like you have been forced to take this post and would prefer to be paid redundancy. If not, you would consider going to an Employment Tribunal to claim Constructive Dismissal. We apologised that you felt this way and Lisa explained that all redeployment posts are subject to a 4-week trial period to assess your suitability of the post.
Lisa explained that she would explore the option as to whether the option of redundancy would be possible for you. This has been explored further and I can now confirm that unfortunately this would not be an option as the Trust's Management of Staff Affected by Change Policy is clear that the Trust will consider all reasonable practicable steps to avoid compulsory redundancies. We also feel that we have found suitable alternative post for you to be slotted into.
……"
"Following your confirmation that your trial period for the post of Care Co-ordinator – AfC Band 6 in the North Recovery Team commenced on 3rd July 2017, I can confirm the following changes to your terms and conditions."
"As this post constitutes suitable alternative employment, you are entitled to a trial period. This trial period will last for four weeks.
If you choose to work beyond the end of the four-week trial period, any redundancy entitlement will be lost and you will be deemed to have accepted the new employment. In the event that the Trust wish to end the new contract within the trial period for a reason connected with the new job, you will preserve the right to a redundancy payment."
"30. The Claimant has not been through a restructure before in his professional life. He therefore did not know what to expect. It would be wholly unrealistic for him to have been expected to understand the arcane mechanics of redundancy, suitable alternative employment, and the mysterious concept of disappearing dismissal under section 138 ERA.
31. I consider the only safe and sensible approach in a case like this is to base my judgment of the contractual reality on the correspondence between the parties rather than an oral discussions or notifications. The contractual reality of the situation has to be judged objectively."
"145 Unless there is a formal statutory trial period under Part XI of the Employment Rights Act, there is no right to a statutory redundancy payment. That is what this case and these tribunal proceedings are about. (Interestingly the Optical Express case also had in the background a contractual enhanced redundancy payment, as the present one may also have.)
146 I was referred to the case of Francis v Pertemps Recruitment Partnership Ltd UKEATS/0003/13 a decision of Langstaff P and members. It is relied upon heavily by the claimant. Paragraph 21:
'However, section 138 goes on to set out situations where the statute provides that, despite that definition [i.e. of dismissal], there is actually no dismissal where the contract is terminated: that is where the employee's contract is renewed or he is re-engaged under a new contract. If looked at colloquially, therefore, the question upon which a claim for unfair dismissal is predicated is whether the contract is terminated, whereas the question on which the right to a redundancy payment depends might be put broadly as the employment relationship being terminated.'
For myself I found that a helpful distinction that acknowledges the rather mysterious concept of a disappearing dismissal.
147 Another recent case I have found helpful was the case of Sandle v Adecco UK Ltd [2016] IRLR 941 EAT, judgment of HHJ Eady. This reviews several of the cases concerning the need to communicate dismissal by words or actions. Dismissal has to be on a date certain. The case of Hogg v Dover College was cited. This was the historic authority where the tribunal held that it was possible to bring an unfair dismissal case from within employment. Mr Hogg's old contract was replaced by a new contract with half the hours and half the salary. The difference was so substantially great that it could not be portrayed as anything but a dismissal and re-engagement on a different contract. There is no such great difference between the contracts in the present case.
148 The Hogg case was followed Alcan Extrusions v Yates [1996] IRLR 327 EAT, which also involved 'radically different' new terms. I cannot find the Care Co-ordinator contract role in any way raises a Hogg v Dover College kind of issue where a dismissal simply happens. The claimant's grade, status and salary would remain identical after the change. It was broadly to do with psychiatric nursing and recovery. I do not consider the respondent would wish to argue that. If it was 'radically different' then the role could hardly have been suitable alternative employment.
149 As stated earlier I must base my objective assessment of the contractual reality on the correspondence. The parties' recollections of meetings inevitably differed. When two sides are so strongly in disagreement, memories can become selective and tendentious. In the Sandle case at paragraph 26:
'Where the question of termination is to be determined in the light of language used by an employer that is ambiguous, the test is not the intention of the speaker but rather how the words would have been understood by a reasonable listener in the light of all the surrounding circumstances.'
That approach aligns with the contract law cases. That seems to be an accurate statement of the test I have to apply. That means the approach in Geys v Soc Gen is a more useful guide than the Section 97 ERA ("EDT") cases.
150 'Reasonable listener' is another way of saying objective. The reasonable listener is also disinterested. I have reviewed the correspondence in detail throughout the course of this long hearing on a single issue. My initial doubts remain. The letter of 6 June stated the claimant was likely to be issued with formal notice of dismissal. This never materialised in the correspondence.
151 The correspondence does not seem to reflect dismissal followed by disappearance of the dismissal. That was the shape of the legislation which the Respondent needed to follow. The lack of any 'formal' notification of dismissal, in a process characterised by formality at every turn is, I consider, fatal to the respondent's contention that the claimant was dismissed.
152 The claimant's belief is that he had a subsisting contract with the Trust which underlies the various changes in role which he has had throughout the whole of the term of his employment with the respondent. In light of the correspondence the claimant received. I would that as an objectively reasonable interpretation of what was being communicated to the claimant.
153 It follows in my view from the reading of the sections that if the claimant was not dismissed, the trial period in the new Care Coordinator role cannot have been a statutory trial period under the Part of XI of the Employment Rights Act 1996. It could only be a statutory trial period if it started immediately on an actual dismissal (as per s138(1)(a) & (b)). It therefore follows that the trial period was not in fact a statutory trial period.
154 It is not necessary for me at this stage to say what other kind of trial period it was. Maybe, as Ruth Hydon suggested, it was a 'contractual' trial period, and they were sensible and fair in allowing the claimant time for annual leave and also extra time for his grievance to be dealt with. But this is a strict statutory regime which needs to be followed to the letter, in order for the claimant to qualify for a statutory redundancy payment.
155 I consider therefore that the claimant was not dismissed until 22 December 2017 and therefore the remaining issues for decision will have to be considered now, with the addition of the question, now introduced by the respondent's counsel, namely was the claimant's final dismissal a dismissal form the PSI worker role which was redundant or from the Care Coordinator role which was not."
The Grounds of Appeal and Respondent's Arguments
Answer and Claimant's Submissions
Discussion and Conclusions
"40. Did the ET thereby err? We can see the argument that an ET might get overly fixated on the issue of communication - failing to remind itself as to the language of section 95(1)(a), which requires merely that the employee's contract "is terminated by the employer (whether with or without notice)". Whilst we can see why an ET might look for express language before finding a dismissal under section 95(1)(a) - the employer's decision to terminate the contract should be unequivocal - and we can see a real danger from lack of certainty, we accept that certainty is not the only relevant criterion. A dismissal may be by word or deed, and the words or deeds in question may not always be entirely unambiguous; the test will be how they would be understood by the objective observer. Further, as the case law shows, an employer's termination of a contract of employment need not take the form of a direct, express communication. It may be implied by the failure to pay the employee (Kirklees), by the issuing of the P45 (Kelly) or by the ending of the employee's present job and offer of a new position (Hogg). In each of those cases, however, there was a form of communication; the employee was made aware of the conduct in question, conduct that was inconsistent with the continuation of the employment contract and in circumstances where there were no other contraindications. The question is: given the facts found by the ET, given what was known to the employee and to the relevant circumstances of the case, what is the conclusion to be drawn? Has the employer communicated its unequivocal intention to terminate the contract?"
Outcome