Leicestershire County Council v Unison
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE TUCKEY,Lord Justice Laws,Lord Justice Scott Baker,Lord Justice Brooke |
| Judgment Date | 29 June 2006 |
| Neutral Citation | [2006] EWCA Civ 825,[2005] EWCA Civ 1761 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2005/2155,A2/2005/2155 |
| Date | 29 June 2006 |
[2005] EWCA Civ 1761
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE MCMULLEN,
MR J MALLENDER AND MR D WELCH)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Tuckey
A2/2005/2155
MISS ELIZABETH SLADE QC (instructed by County Solicitor, Leicestershire County Council, County Hall, Glenfield, Leicester LE3 8RA) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
Judgement
This is an application for permission to appeal made on behalf of the Leicestershire County Council. They seek permission to appeal against a decision of the Employment Appeal Tribunal, given on 2nd September 2005, His Honour Judge McMullen presiding. The Tribunal had allowed in part an appeal by the applicants from a decision of the Employment Tribunal dated 14th December 2004.
A large number of dismissals were found by the applicants to have become necessary because of the need to implement the single status agreement. A procedure for handling redundancies, because the proposals would involve redundancies, is set out in Chapter II of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act").
Two points are sought to be argued. The first is that it is sought to argue a point not taken before the Employment Tribunal. The Employment Appeal Tribunal took the view that they should not permit the point to be argued in those circumstances. It relates to section 188(1A) of the 1992 Act.
Miss Slade QC, who appears for the applicants, draws attention to the fact that the primary reason, she submits, given by the EAT for refusing to consider the point was that fresh findings of fact were required, whereas the learned single Lady Justice, in considering the present application on paper, accepted that:
"… all the necessary findings of primary fact had been made…"
Nevertheless, it is right to point out that at paragraph 38 of their decision the EAT did refer to other factors, including the public interest in finality, which had led to the conclusion they reached. I would acknowledge that the discretion was a carefully exercised one. The submission is that the findings of fact having been made, an important point of construction is involved on the meaning of the expression "in good time" in the section.
The second ground of appeal is on a point which was taken below and related to the downgraded group. It has not been necessary to set out the facts at all fully, but substantial numbers of people were involved — the downgraded group numbering about 1,100, and the enhancement group about 1,550 — and substantial sums of money are involved, having regard to the maximum period for which allowance can be given.
The second ground is in relation to the construction of section 189(4) of the 1992 Act and deals with the protected period within the meaning of the section. The EAT took the view that a temporal restriction should be placed, and the discussions relied on by the applicants were outside the permitted period. That appears from the second sentence of paragraph 41 of their decision.
The Employment Tribunal, however, in reasoning which the learned single judge adopted, was that the discussions relied on related to a different subject and not to the considerations in section 188. Miss Slade makes the point that the earlier discussions were relevant to the final outcome of the case because, if agreement had been reached during those discussions, the need to dismiss would not have arisen and the employers' conduct in that respect was relevant to the amount of compensation which should be paid. A very substantial amount of money is involved.
Miss Slade relies on the decision of a differently constituted Employment Appeal Tribunal in Amicus v GBS Tooling Ltd [2005] IRLR 683, Burton J President of the Tribunal presiding, and in particular his consideration of this issue at paragraph 20 of the judgment.
I accept that it is arguable on the second ground of appeal that the Employment Tribunal have misdirected themselves in the approach they have taken. This being an important point and involving a substantial number of people and sums of money, I would grant permission to appeal.
While taken on its own, on the first ground I might well have been minded to refuse permission, it seems to me that, having regard to the importance of the point and its possible relation to the second ground, which is going to be argued in any event, permission should be granted on that ground too. This is, in my judgment, a circumstance to which this court is entitled to have regard when considering the discretion of the EAT. They were also refusing permission on the second ground, and might otherwise have taken a different view on the first. There is a risk that the law would be left in something of a limbo if two points which arguably are related, with only one of them considered by this court upon this appeal.
For those reasons, I would grant permission.
I agree.
ORDER: Application for permission to appeal granted; constitution for the appeal to be a court of three judges (two Lords Justices and a High Court judge), with a time estimate of one day.
(Order not part of approved judgment)
[2006] EWCA Civ 825
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
Vice President of The Court of Appeal (Civil Division)
Lord Justice Laws and
Lord Justice Scott Baker
Case No: A2/2005/2155
EAT/0066/05/DM
Elizabeth Slade QC and Mark Wyatt (instructed by Legal Services for Leicestershire County Council) for the Appellant
John Cavanagh QC and Helen Gower (instructed by Legal Services for Unison) for the Respondent
1. This is an appeal by the Leicestershire County Council against a decision of the Employment Appeal Tribunal ("the EAT"), presided over by His Honour Judge McMullen QC, given on 2 September 2005. The EAT dismissed the council's appeal against the judgment of the Leicester Employment Tribunal ("the ET") registered on 14 December 2004 to the effect that a protective award of 90 days be made in respect of a group of employees referred to as the "downgraded group". As regards another group, the "enhancement group", the EAT allowed the council's appeal but only to the extent of reducing from 20 days to 10 days the protective award which was made in respect of them. Permission to appeal to this court was refused on consideration of the papers by Janet Smith LJ on 9 November 2005. Permission was however granted on 21 December 2005 by Pill and Tuckey LJJ after a hearing. Then on 7 February 2006 Tuckey LJ granted permission on the papers to the respondents, the trade union Unison, to cross-appeal against the council's partial success in relation to the enhancement group, and also to support the EAT's conclusion regarding the downgraded group by reference to a new argument. It will make for clarity if I refer to the appellants as "the council" and the respondents as "Unison".
The facts of the case have been fully and clearly described by the ET, much of whose account has been replicated by the EAT. I do not think we can do better in this court. The ET introduced the matter thus:
"1. The trade union Unison, which is recognised by the respondent as representing a substantial number of its employees, complains that, in implementing the results of a job evaluation scheme by the process of dismissing all employees whose terms and conditions of employment were to be changed to their disadvantage and simultaneously offering them re-engagement on the new, less favourable terms, the respondent was in breach of its obligation to consult with them imposed by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. It seeks a protective award in respect of three descriptions of employees: the downgraded group, said to number about 800 who, as a result of the job evaluation exercise were to be placed in a lower grading in the pay structure: the bonus group, said to number about 300, whose bonus payments were adversely affected by the exercise; and the enhancement group, said to number 1550, whose rights to such things as unsocial hours and weekend working supplements and overtime were adversely affected. Because of the way the scheme was implemented, the downgraded and bonus groups can conveniently be dealt with together and they will be referred to hereafter as the downgraded group."
Section 188, to which I shall come shortly, imposes a duty of consultation where an employer is proposing to dismiss as redundant at least 20 employees at one establishment. However the process of dismissal in this case did not constitute a situation of redundancy as the term is ordinarily understood: there was no intention to reduce the size of the workforce. Section 188 applies to the case by force of section 195(1):
"(1) In this Chapter references to dismissal as redundant are references to dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related."
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