CU 59 1989
| Jurisdiction | UK Non-devolved |
| Judge | Mr M. J. Goodman |
| Judgment Date | 20 March 1991 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CU 59 1989 |
| Subject Matter | Jobseekers allowance |
R(U) 3/91
Mr. M. J. Goodman CU/59/1989
20.3.91
Voluntarily leaving employment – waiver of notice on voluntary redundancy – whether claimant “dismissed ... by reason of redundancy”
The claimant was “counselled for redundancy” on 8 March 1988. On that date he released the employer from any notice obligation under his contract (he was entitled to twelve weeks notice). The redundancy was effective from 19 March 1988. Work was available to the end of the notice period and no wages were payable in lieu of the waived notice
The local adjudication officer decided that the claimant had left his employment voluntarily without just cause, and disqualified him for a period of 10½ weeks (the period of the waived notice when work would have been available)
The social security appeal tribunal decided that section 20(3A) of the Social Security Act 1975 did not assist the claimant and they upheld the adjudication officer’s decision. The claimant appealed to the Commissioner
Held that:
- where dismissal takes place in anticipation of a forthcoming redundancy situation, the dismissal is by reason of redundancy (para. 9);
- on the facts of this case the claimant was dismissed within the meaning of section 83(2) & 85 of the Employment Protection (Consolidation) Act 1978, and the dismissal was by reason of redundancy (para. 13);
- the claimant could avail himself of the protection afforded by section 20(3A) of the 1975 Act, therefore he is not disqualified for receiving unemployment benefit on the grounds that he left his employment voluntarily under section 20(1)(a) of the 1975 Act.
Note: the use of the word “dismissed” in section 20(3A) of the Social Security Act 1975 is not confined to the technical meaning of dismissal in sections 83(2) & 85 of the 1978 Act. It also covers the situation where, in anticipation of future redundancies, an employer and an employee mutually agree when and on what terms the employee will leave the employment (paras. 16‑19).
decision of the social security commissioner
- I allow the appeal by the claimant’s trade union against the decision of the social security appeal tribunal dated 8 September 1988 as that decision is erroneous in law and I set it aside. I give the decision which the tribunal should have given, namely that the claimant is not disqualified for receiving unemployment benefit under section 20(1)(a) of the Social Security Act 1975 as a result of the termination of his employment on 21 March 1988. That is because the claimant was then dismissed by his employer by reason of redundancy within the meaning of section 81(2) of the Employment Protection (Consolidation) Act 1978 after volunteering or agreeing so to be dismissed and therefore shall not be deemed to have left his employment voluntarily: Social Security Act 1975, section 20(1)(a) and 20(3A) and section 101 (as amended).
- This is an appeal to the Commissioner by the Transport and General Workers Union to which union the claimant, a man aged 41 at the relevant time, belonged. The appeal is against the unanimous decision of a social security appeal tribunal dated 8 September 1988 which dismissed the claimant’s appeal from a decision of the local adjudication officer dated 25 May 1988 disqualifying the claimant for receiving unemployment benefit from 21 March 1988 to 1 June 1988 because he voluntarily left his employment without just cause (Social Security Act 1975, section 20(1)(a)).
- On my direction, the appeal was the subject of an oral hearing before me on 7 February 1991 at which the claimant was present and the appellant trade union was represented by Mr. F. Whitty of the union’s legal department. The adjudication officer was represented by Mr. K. A. Turner of the Office of the Chief Adjudication Officer. I am indebted to Mr. Whitty and to Mr. Turner for their assistance to me at the hearing. The facts of this case are set out in the summary of facts prepared by the adjudication officer for submission to the tribunal, which summary reads as follows:
“[The claimant] had been employed by South Yorkshire Transport as a one person [bus] operator. His employment began on 13 July 1969 and he latterly worked at the East Bank Garage. Due to the effect of the 1985 Transport Act, the company had to reduce staff by about 400 during the early part of 1988 and under the terms of an agreement reached between South Yorkshire Transport and all the unions concerned a redundancy package was agreed. All employees who were to be made redundant would receive a payment in compensation for loss of an established job. Also, under the terms of the agreement staff could waive their right to notice under [section 49 of the Employment Protection (Consolidation) Act 1978] and receive a payment under the Agreement. No wages in lieu of notice were to be paid as the Company could provide work for all their employees for the requisite period. Employees who worked at a garage which was scheduled to close would be transferred to another garage when the time for closure was agreed. [The claimant] was employed at East Bank Garage which was scheduled to close. On 8 March 1988 he was counselled for redundancy and signed a waiver notice to the effect that he released the Company from any notice obligation under his contract. His redundancy would be effective from 19 March 1988 and he would receive £3,000 compensation as in the agreement para. 7.2. On 21 March 1988 [the claimant] made a claim for unemployment benefit. He was given an opportunity to comment on the situation by the benefit office but declined to do so. Following legal advice the adjudication officer accepted that the payment received by [the claimant] was not a payment in lieu of notice (affected by Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations [1983] reg. 7(1)(d)). However, because work was available for him to do, it was considered that he had left his employment voluntarily and was subject to consideration under Social Security Act 1975, section 20(1)(a). It was decided by the adjudication officer that a period of disqualification equal to the period of notice required was appropriate. Accordingly [the claimant] was disqualified for receiving unemployment benefit from 21 March 1988 to 1 June 1988 (both dates included).”
- In the tribunal’s reasons for decision i.e. upholding the disqualification on the ground of voluntary leaving (1975 Act, section 20(1)(a)), they gave the following reasons for decision:
“1. The tribunal considered in detail all the arguments put forward in this case and decided that as [the claimant] had waived his right to notice and as work would have been available to him to the end of the twelve week notice period [i.e. the twelve weeks notice for twelve years service, to which he was entitled under section 49 of the 1978 Act] i.e. to 18 June 1988 then he has to be considered as redundant only at the end of notice period and section 20(3A) of Social Security Act 1975 does not assist him.
- [The claimant] waived his right to notice and left his employment before he was actually told which garage he would be transferred to ‑ he did not wait to see if working from another depot was viable. He therefore voluntarily left his employment without just cause.”
- Section 20(3A) of the Social Security Act 1975 to which the tribunal referred was inserted by section 10 of the Social Security Act 1985, to remove the difficulties which had emerged as a result of the decision of the Court of Appeal in Crewe v. Social Security Commissioner [1982] 2 All ER 745. In that case it was held that a school teacher who had volunteered for redundancy and consequent early retirement could not show that his voluntarily leaving was with “just cause” within the meaning of section 20(1)(a) of the 1975 Act. Subsections (1)(a) and (3A) of section 20 of the 1975 Act read as follows:
“20. (1) A person shall be disqualified for receiving unemployment benefit for such period not exceeding 26 weeks as may be determined in accordance with sections 97‑104 of this Act (adjudication by adjudication officers and officers and other statutory authorities) if-
(a) he has lost his employment as an employed earner through his misconduct, or has voluntarily left such employment without just cause;
……
(3A) For the purposes of this section, a person who has been dismissed by his employer by reason of redundancy within the meaning of section 81(2) of the Employment Protection (Consolidation) Act 1978 after volunteering or agreeing so to be dismissed shall not be deemed to have left his employment voluntarily.”...
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