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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Halpin v Sandpiper Books Ltd (Unfair Dismissal : Reasonableness of dismissal) [2012] UKEAT 0171_11_0602 (06 February 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0171_11_0602.html Cite as: [2012] UKEAT 171_11_602, [2012] UKEAT 0171_11_0602 |
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
Before
MRS D M PALMER
SANDPIPER BOOKS LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(The Appellant in Person) |
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SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
REDUNDANCY - Fairness
Since the Claimant was the only employee based in China, the Respondent’s decision to make the post redundant could only be based on a “pool of one”. Decisions as to pools and criteria are matters for management and an Employment Tribunal will rarely interfere with them. The Employment Tribunal correctly dismissed the challenge to the fairness of the decision based solely on the question of “the pool”, an elusive concept where only one relevant employee is involved.
HIS HONOUR JUDGE McMULLEN QC
Introduction
“The Claimant was fairly selected in a [sic] far as he was in a pool of one given his unique position dealing solely with sales and based in China.” [in so far as substituted]
The legislation
4. The Employment Tribunal set out the legislation, as to which there is no dispute. Section 139 of the Employment Rights Act 1996 defines redundancy, section 98(2) deals with the reason for dismissal (here, redundancy), and section 98(4) with fairness. The correct approach to dealing with redundancies is set out in Williams v Compair Maxam [1982] ICR 156, which the Tribunal cited.
The facts
5. The Tribunal introduced the parties to us in the following way:
“6. The Respondent is a book distributor and its main business is through catalogue sales within the UK. The business is run from its office in London and distribution centre in Devon. The Respondent also sold books in Europe and the United States.
7. In 2008, Mr Collie, the Respondent’s Managing Director, made the decision to look into the prospect of selling books within the Chinese market. In order to do this, the Respondent would have to acquire local knowledge as to the market and work closely with distributors on the Chinese mainland.
8. The Claimant was employed by the Respondent from 23rd August 2007 to work at its London office as an Administrator/Analyst. Mr Collie, had identified the Claimant as having considerable potential, particularly given the additional benefit of his experience having spent a year in China teaching English as a foreign language. This was reflected in paying the Claimant a higher salary. The Claimant was promoted quickly in order to give his responsibilities that were challenging.”
“9. Whilst working the UK, the Claimant carried out analysis of the Respondent’s mail order sales, but this work had generally been completed by the time he was moved to China. When the Claimant was working in the UK the Respondent’s other administrators were working on separate administrative tasks.
[…]
12. The Claimant’s principal duties were to liaise with the local international book importers and distributors in order to raise the Respondent’s profile there.
[…]
14. Whilst the position in China was evolving, the Claimant undertook some administrative and analysis work. The administration work took less than 1 day per month, the campaign work and analysis work from between one to three days per week to begin with, diminishing as time went on to less than a day and a half a week […].
15. Whilst in China, some of the administrative tasks that the Claimant otherwise had undertaken were redistributed to staff in the UK because of the practical difficulties of the difference in time between China and the UK. Otherwise, the administrative staff in the UK took telephone orders and undertook process work and the Claimant was not involved in that side of the work at that level at all.
16. In any event, the main body of analysis work had been completed by the Claimant before he left for China and with the redistribution of administrative tasks throughout the Respondent company, the Claimant was left with very little administrative work to do when not devoting himself to developing sales in that country.”
“20. Mr Collie therefore took the decision to put the sales management position in China at risk of redundancy. His view was that it might be possible to have the role undertaken locally by an already existing agency which would work for the Respondent on a commission basis only. In other words the work was outsourced. In effect the Claimant’s position was surplus to the Respondent’s requirements.
21. Mr Collie believed that using established Chinese agents would give the Respondent a better chance in the Chinese market. The Claimant’s language skills were not as extensive as required and he was still having Chinese lessons paid for by the Respondent. It was much easier for locally known and trusted book agents to deal directly with the book importers, colleges and institutions, in order for the Respondent to establish a market position in the country.”
9. The Tribunal’s conclusions are concise:
“36. The Respondent has shown us that the potentially fair reason for the Claimant’s dismissal was redundancy within section 98(2)(c) ERA 1996.
37. We are also satisfied that there was a genuine redundancy situation within s139(1)(b)(ii) ERA 1996. The Respondent no longer had a requirement for work of the particular kind in the place where the Claimant was employed, namely to promote sales based in China. This was the major part of the Claimant’s role, the remaining administrative and analysis work was of an insufficient amount to justify a full‑time or part‑time position within China and for that matter within the UK.
38. We are also satisfied that the Claimant’s dismissal was attributably wholly to the redundancy situation.
39. The Claimant was given adequate warning of his potential redundancy within correspondence we were referred to.
40. The Respondent reached a business decision to close the China office in early August 2009 because it was simply not financially viable and decided to continue the work through a locally based agency rather than employed staff. It is not for the Employment Tribunal to question this decision any further in the light of our findings. However we could see the business sense behind this decision.”
The Claimant’s case
The Respondent’s case
The legal principles
13. The legal principles have been set out in Williams, and since there is no issue as to those passages we have cited, we need look no further. Mr Halpin’s principal contention is that the Tribunal did not expressly make a finding that the decision came within the band of reasonable responses as required by Iceland Frozen Foods v Jones [1982] IRLR 439. In our judgement, the language of a Tribunal once it cites the statute is for it to decide, and a Tribunal will not usually go wrong if it uses precisely the language of the statute in its finding, nor will it necessarily go wrong if it uses its own language, provided its sense is clear.
Discussion and conclusions
17. The decision as to the pool (we use the word advisedly, since there was only one) is for the management (see Fulcrum Pharma, where a Tribunal erred in adjusting the decision as to one or two people in the pool). In our judgement, the decision by management was one that was reasonably open to it, and the Tribunal has committed no error. We can understand the sense of unfairness the Claimant feels at having been sent to China and then the job terminated, but we are applying the primary legal principle that a decision that follows a correct self‑direction and clear findings of fact by an Employment Tribunal on unfair dismissal should not be interfered with (see the difficulty in so doing set out by Mummery LJ in the majority Judgment he gave in Fuller v London Borough of Brent [2011] EWCA Civ 267).
18. We would very much like to thank Mr Halpin for his careful arguments. The appeal is dismissed.