Lynam & Anor (Contract of Employment), Court of Appeal - United Kingdom Employment Appeal Tribunal, September 06, 2017, [2017] UKEAT 0072_17_0609

Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Lynam & Anor (Contract of Employment)
Resolution Date:September 06, 2017
 
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Copyright 2017

Appeal No. UKEAT/0072/17/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 8 August 2017

Judgment handed down on 6 September 2017

Before

HIS HONOUR JUDGE SHANKS

(SITTING ALONE)

(1) MRS E J LYNAM APPELLANTS

(2) MR S ROONEY

BIRMINGHAM CITY COUNCIL RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0072/17/JOJ

APPEARANCES

UKEAT/0072/17/JOJ

SUMMARY

CONTRACT OF EMPLOYMENT - Implied term/variation/construction of term

In December 2013 the Council announced on their intranet in a notice headed ``Voluntary Redundancy (VR) Information and guidance for employees'' that they had decided to undertake a process offering a generous VR package in 2014/15. The process was to cover ``affected'' employees identified as such in a section 188 notice, which included the Claimants. The notice stated that all eligible employees would be contacted and invited to make an application for VR. In September 2014 the Claimants were told that VR would not be available to them and they were made compulsorily redundant with effect from 30 April 2015. They claimed damages for breach of contract based on the Council's failure to allow them to apply for VR.

The Employment Judge decided that the Claimants had no contractual right to apply for VR because: (a) the Council had only offered an enhanced VR package in one previous year and it was unlikely to be repeated after 2014/15 so that there was no ``policy'' such as to give rise to a contractual right; (b) only employees invited to apply for VR would be eligible and have a contractual right to do so and, anyway, those who did apply had no right to receive VR; and (c) employees within a pool whose role was being deleted had no right to apply for VR.

In so doing she erred in law in that:

(a) was irrelevant: there was no claim based on a ``policy'' or ``custom and practice''; the proper focus was on what the Council had communicated to its employees;

(b) was based on a misinterpretation of the notice: it was clear that ``eligible'' and ``affected'' employees were the same thing and the notice stated they would all be contacted and invited to apply for VR; the question whether VR would have been granted went to damages, not liability;

(c) there was no suggestion in any communication from the Council that there was such a restriction on the right to apply for VR and it was not possible to see the rationale for such a restriction or how it would have been framed.

The case would be remitted to the ET to decide whether, on a proper interpretation of the notice, there was a contractual right to apply for VR and, if so, what (if any) damages were suffered by the Claimants by not being afforded the opportunity to apply for VR.

UKEAT/0072/17/JOJ

-12-

HIS HONOUR JUDGE SHANKS

  1. This is an appeal by the Claimants against a Judgment of the Employment Judge Dean, sitting in Birmingham sent out on 27 May 2016, in which she dismissed their complaints that Birmingham City Council had breached their contracts of employment by failing to offer them the opportunity to apply for a voluntary redundancy package before dismissing them.

    Facts

  2. The Claimants were employed by the Council in its Adult and Communities Division as Review and Monitoring Officers within the Assessment and Support Planning Team. They and their colleagues doing the same job, of whom there were about 159, were grade 4 and were not qualified as social workers.

  3. On 9 December 2013 the Council issued a notice under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 relating to `` ... potential redundancies as a result of the proposed Council budget for 2014/15''. It stated that the Council had begun a detailed programme of reviews looking at all their services and how they worked overall. The notice referred to mitigating actions which included inviting ``affected'' employees to apply for Voluntary Redundancy. There is no dispute that the Claimants and their colleagues were identified in the Notice as ``affected'' employees.

  4. Following a report to the Council's Cabinet on 16 December 2013 a proposal for a ``two phased ... voluntary redundancy trawl'' targeted at the employees identified as being at risk of redundancy in the section 188 notice was approved.

  5. On the same day (I infer) the Council posted a document on its intranet for access by employees headed ``Voluntary Redundancy (VR) Information and guidance for employees''. The document contained the following statements which seem to me to be relevant to the issues the Employment Judge had to determine (though she only quoted a small part of it in her Judgment at paragraph 21):

    ``Targeted Voluntary Redundancy 2014/15

    To support the Council in achieving significant financial savings in 2014-15, it has been decided to undertake a targeted voluntary redundancy (VR) trawl to reduce the need for compulsory redundancies.

    The VR process will be coordinated through nominated divisional representatives.

    You do NOT need to contact HR - your divisional representative will contact you if you are eligible.

    A phased approach to the VR process 2014/15 is being taken

    ...

    ? Phase 1 - Will cover Corporate Resources except Property and Procurement -beginning in mid-December 2013;

    ...

    ? Phase 2 - will cover all other employees who have been identified in services across the Council that are under review in the Section 188 notice beginning in the spring of 2014. [I note here that the Claimants were in this Phase 2 group of employees.]

    ...

    Phase 1

    ...

    Employees who work in the areas that have been identified for phase 1 as outlined in the Section 188 issued on 9th December, will be communicated with from 16th December 2013 about how to apply for VR. You will be provided with an expression of interest form which you will need to complete. In making a decision for VR, please consider the following:

    ? All applications will be considered individually; submitting an application does not mean that your voluntary redundancy will be...

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