Osborne & 29 Others v Capita Business Services Ltd & Ors UKEAT/0048/16/RN

Appeal against an ET judgment that ruled that the reasons for the dismissals of the Claimants by the transferee were for ETO reasons which entailed changes in the workforce. Appeal was dismissed for all but one of the Claimants.

The Claimants were dismissed after their employment transferred under TUPE from Barnet to Capita. The reason for the dismissal, according to the ET, was the splitting and relocating of the various roles and it followed that there was an ETO reason for their dismissals, which entailed a change in the workforce. The Claimants appealed.

The EAT dismissed the appeal except in respect of one Claimant. The Employment Tribunal found that the job functions had been split and that this was therefore capable of being an ETO reason which entailed changes in the workforce since it entailed changes in the job functions of the workforce. One Claimant won her appeal - she had complained that the Employment Tribunal had clearly found that she had not had a material change of function, but had been dismissed primarily because the location of the work had changed and she would not accept it. The logic by which the Employment Tribunal concluded that nonetheless she was dismissed for an ETO reason entailing changes in the workforce could not be supported, and in the light of the Judge's clear finding that she was dismissed because of the new location of her work the EAT substituted a finding that she had been automatically unfairly dismissed.

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Appeal No. UKEAT/0048/16/RN

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 17 June 2016

Before

THE HONOURABLE MR JUSTICE LANGSTAFF

(SITTING ALONE)

OSBORNE AND 29 OTHERS (APPELLANTS)

(1) CAPITA BUSINESS SERVICES LTD

(2) CAPITA EMPLOYEE BENEFITS LTD

(3) REYNOLDS & 3 OTHERS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellants MR STUART BRITTENDEN (of Counsel) Instructed by: Unison Legal Services Unison Centre 130 Euston Road London NW1 2AY

For the First and Second Respondents MR MARTIN PALMER (of Counsel) Instructed by: Irwin Mitchell LLP Solicitors 2 Wellington Place Leeds LS1 4BZ

For the Third Respondents No appearance or representation by or on behalf of the Third Respondents

**SUMMARY**

TRANSFER OF UNDERTAKINGS

TRANSFER OF UNDERTAKINGS - Economic technical or organizational reason

PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke

Barnet outsourced many of its services to Capita so as to achieve economies. This was a service provision change, to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 (before the introduction of Regulation 7(3A)) applied. In the case of nine lead Claimants, representing 30 others, the Employment Tribunal found that the functions they had fulfilled whilst in the service of Barnet prior to the transfer were (save in two cases) split between different locations or people. In each case there had been a dismissal by Capita. The Employment Tribunal decided that the reasons for the dismissals were the splitting of the job functions and the relocation of the place of performance of those functions to various towns and cities. These were "economic technical or organisational reasons" which entailed "changes in the workforce".

The Claimants appealed on the basis that they had been assured that they could relocate to one of the other places of work if they wished, and would not be put out of a job with Capita if they did so, but that the Judge had not made any significant reference to this although it was a primary submission of theirs; and that the Employment Tribunal had ignored the evidence of one of Capita's witnesses who had said that the reason for the dismissals was "relocation", which they argued did not (on authority) amount to an economic, technical or organisational ("ETO") reason.

It was held that the reason for dismissal was sufficiently clear. It was a finding of fact, and was not perverse: the Employment Tribunal did not have to deal specifically with the submission since it dealt clearly with the facts. The witness had apparently not said clearly that relocation of the existing job was all that had occurred, and in any event the Employment Tribunal found that the job functions had been split. This was therefore capable of being an ETO reason which entailed changes in the workforce since it entailed changes in the job functions of the workforce.

As a third ground, a Claimant complained that the Employment Tribunal had clearly found that she had not had a material change of function, but had been dismissed primarily because the location of the work had changed and she would not accept it. The logic by which the Employment Tribunal concluded that nonetheless she was dismissed for an ETO reason entailing changes in the workforce could not be supported, and in the light of the Judge's clear finding that she was dismissed because of the new location of her work the Appeal Tribunal substituted a finding that she had been automatically unfairly dismissed.

**THE HONOURABLE MR JUSTICE LANGSTAFF****Introduction**
  1. In a decision made at the Watford Employment Tribunal, Reasons for which were delivered on 22 September 2015, Employment Judge Southam held that, save for the case of one person amongst the 30 cases before him, the dismissal of the others by their employer, the Respondents, Capita, was for an economic, technical or organisational reason ("ETO reason") entailing changes in the employer's workforce. The cases were considered as nine test or lead cases upon which the decision in the other cases in the cohort would ultimately be likely to depend. In one case, as I have said, the Judge did conclude that although the dismissal was for an ETO reason the reason did not entail changes in the employer's workforce.
**The Factual Background**
  1. The factual background was that the London Borough of Barnet decided in 2013 to outsource a number of its services, in particular in respect of the pensions department, customer services, human resources and human resources services, benefits and support and control. It considered that it could make considerable savings by outsourcing those services such that they would thereafter be provided by Capita. Those savings would be economic, arising from economies of scale, because of the fact that Capita was in a position to share the operations for Barnet with others, with economies of accommodation in addition. They would be technological, in that automation, different processes and customer self-service would enable savings to be made, and organisational, not least in that the existing skilled management of Capita would be operating and the infrastructure would be more efficient.
  1. These proposed changes underlay the transfer of the provision of those services on 1 September 2013.
  1. During the course of the nine months or so that followed, the Claimants, for various reasons, no longer had the same job to fulfil as they had had with Barnet and ceased to be employed by Capita.
  1. It was common ground below that the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") applied. They were in the form that operated before the introduction of Regulation 7(3A), which was introduced as from 31 January 2014. Once it was determined, as it was here, that there had been a service provision change to which the provisions of TUPE applied, the focus then turned to the reason for dismissal of the employee. Regulation 7 provided, so far as material:

"(1) Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee is to be treated for the purposes of Part 10 of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for the dismissal is the transfer.

(2) This paragraph applies where the sole or principal reason for the dismissal is an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer.

(3) Where paragraph (2) applies -

(a) paragraph (1) does not apply;

(b) without prejudice to the application of section 98(4) of the 1996 Act (test of fair dismissal), for the purposes of sections 98(1) and 135 of that Act (reason for dismissal) -

(i) the dismissal is regarded as having been for redundancy where section 98(2)(c) of that Act applies; or

(ii) in any other case, the dismissal is regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."

  1. Some observations: first, the purpose of TUPE is well understood as seeking to protect employees in the event of a transfer of the undertaking or service in which they work to another employer. However, second and as is obvious from the passages already cited, the Regulations interrelate with the provisions as to unfair dismissal and, in some circumstances, redundancy contained in the Employment Rights Act 1996 ("ERA"). That Act is quite clear as to what constitutes a dismissal. The right not to be unfairly dismissed conferred by Part X contains, in section 95, the following:

"(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) …, only if) -

(a) the contract under which he is employed is terminated by the employer …"

That requires a focus upon the contract under which an employee is currently working. It is not the same as asking whether the employee concerned remains in the service of the employer under some other contract. Thus it is well recognised that if an employer in other contexts seeks to impose a significant change of terms and conditions upon an employee which the employee considers detrimental then if there is such an imposition it may well count as a dismissal even though the employee may to all intents and purposes remain in service as an employee of the same employer, for example by working on under protest.

  1. It is also the case, as the Tribunal at Watford recorded when considering the question of redundancy, that though no redundancy payment has to be made if suitable alternative employment is offered by an employer on the termination of an existing contract of employment, this does not mean to say that what has taken place is not technically a dismissal. Indeed, the very expression "suitable alternative employment" presupposes that it would for other purposes be considered as a dismissal, since it is by definition not the same employment.
  1. These comments are general, in order to set the context for the decision made by the Tribunal, and the proper analysis of the submissions made on appeal.
  1. Regulation 7 gives rise to the question what the expression "economic, technical or organisational reason entailing changes in the workforce" means. The first four words cause little difficulty. They call for categorisations which are factual. Though assessing the facts may be problematic, identification of the meaning is not necessarily so. The main concern of the Courts in applying the law has been the more elusive phrase that qualifies such reasons: "entailing changes in the workforce". In Berriman v Delabole Slate Ltd [1985] ICR 546 the Court of Appeal said, per Browne-Wilkinson LJ, that the phrase:

"… in our judgment requires that the change in the workforce is part of the economic, technical or organisational reason. The employers' plan must be to achieve changes in the workforce. It must be an objective of the plan, not just a possible consequence of it.

Secondly, we do not think that the dismissal of one employee followed by the engagement of another in his place constitutes a change in the "workforce". To our minds, the word "workforce" connotes the whole body of employees as an entity: it corresponds to the "strength" or the "establishment". Changes in the identity of the individuals who make up the workforce do not constitute changes in the workforce itself so long as the overall numbers and functions of the employees looked at as a whole remain unchanged." (Page 551D-E)

  1. A number of subsequent cases have added to that basic statement of principle. The Tribunal set out those cases and at paragraph 20 summarised the principles that it took from them. There has been no criticism before me of those principles, save in one respect. It is necessary for this Judgment to refer only to some of these which, it is common ground, were applicable. Paragraph 20.4 states, "The changes must be applied to the individual claimant", followed by a reference to Miles v Insitu Cleaning Co Ltd UKEAT/0157/12. The Tribunal went on at paragraph 20.5: "Role changes must be significant: Miles and Green v Elan Care Ltd UKEAT/18/01]". It is not necessary for there to be a change in the number of those in the workforce if there is a change in the functions of the workforce, hence the reference to the need for any role changes to be significant. There is a reflection here of the discussion above concerning what constitutes a dismissal, for it may be said that a contract will remain in force and still be identifiable as that same contract even if the job description or the job content under it varies in some respects, providing those respects are not so fundamental as to deprive the contract of any real force (subject of course to issues such as variation or novation), whereas if the changes were significant the converse would be true.
  1. The Tribunal went on:

"20.6. The workforce should be looked at as a whole …

20.8. A mere change of location of the work does not amount to a change in the workforce …"

There follows a reference to the case of [RR Donnelley Global Document Solutions Group Ltd v Besagni and Ors ]()[2014] ICR 1008 EAT for this last proposition. It is that case that gives rise to the only, limited, dispute on the law before me. It was a decision of this Tribunal constituted by Slade J. The Claimants had been employed in the parking enforcement and related services department of a local authority. The local authority outsourced its parking operations contracts. Part of the operation of those contracts was to be transferred to be performed from centres some distance away from the local authority area. The Claimants refused to relocate, on the ground that they were too far away, and they were dismissed for redundancy. They claimed that they should have been held automatically unfairly dismissed since they had been dismissed for a reason that was not an ETO reason entailing change in the workforce.

  1. Slade J noted as to the facts that the Claimants all indicated that they were not prepared to move to Croydon and Lancing to where the business was to be outsourced and added:

"8. … All of the available alternative employment was either a long way from Barnet or involved different skill sets. None of the claimants were interested in those alternatives."

However, the Judge's finding, which was not in dispute, was:

"10. … "The reason for the claimants' dismissal was therefore that they were not prepared to move to Croydon/Lancing." …"

  1. The judgment, therefore, did not consider the question whether the jobs that the Claimants would have continued to do at Croydon or Lancing would have been, or might have been, different employments because of any significant difference in the functions to be performed by the workforce. Mr Palmer, representing the Respondents in the present appeal, would wish to have drawn that conclusion, but, in my view, he cannot. The decision is not one that relates to whether there was or was not an economic, technical or organisational reason. It was accepted, as I read the decision, that there was. The question in issue was whether that reason entailed changes in the workforce. The conclusion that the mere, as the Tribunal put it, change of location did not do so, since it was not a change in what the workforce was or did but where it was located, summarising, was put at paragraph 42 in summary of the judgment in these terms:

"42. Whilst it may be arguable that changes in numbers or functions referred to in Berriman may not be the only "changes in the workforce" falling within TUPE regulation 7(2), in my judgment dismissals of employees by reason of or connected with a transfer of an undertaking for refusing to change the location of their workplace are not dismissals which entail changes in the workforce within the meaning of TUPE regulation 7(2). …"

**The Tribunal Decision**
  1. The Tribunal dealt in great detail with the background and facts relating to the cases as a whole and to the individual lead Claimants. At paragraph 22 the Judge came to conclusions as to the reason for dismissals. He started by looking at the individual reasons for dismissals of the nine lead Claimants. In doing so, he said he had particularly borne in mind what was said in [Manchester College v Hazel ]()[2014] ICR 989 CA. That was a decision of the Court of Appeal in which the lead Judgment, with which Moore-Bick and Kitchen LJJ agreed, was given by Underhill LJ. He considered a submission by the Appellant that an attempt to harmonise terms and conditions by imposing standardised terms upon employees was something that was undertaken for an economic, technical or organisational reason and entailed changes in the workforce. The Court of Appeal thought that challenge to the decision of the Tribunal below was ill founded. At paragraph 22 Underhill LJ set out the proper analysis to be adopted when considering Regulation 7. It was first necessary to establish the reason - or, in any event, the principal reason - for my part, I would emphasise those two words, because the Regulation requires a focus upon them - for the dismissal of the employee. He went on:

"(2) Having established what the reason was, it is necessary to decide whether it is (a) the transfer itself or (b) a reason "connected with the transfer" - or, of course, neither. …

(3) If the reason falls under (a), the dismissal is automatically unfair. If it falls under (b), there is a further question whether it is "an economic technical or organisational reason entailing changes in the workforce". In principle that comprises two questions - (i) whether the reason is "economic technical or organisational", and (ii) whether it "entails changes in the workforce" - and tribunals will be well advised as a matter of prudence to address each, as the employment tribunal did here. In most cases, however, it is the second element which is likely to be decisive, and the phrase can safely be taken as a whole connoting, in effect, a requirement for redundancies or redeployment of the kind discussed in Berriman."

  1. By referring to redundancies, Underhill LJ plainly did not mean redundancies relating to the place of work, given the authorities to which I have already referred. Adopting that approach, therefore, the Judge here first identified the reason for dismissals in each of the lead cases; second, asked if the dismissals were by reason of the transfer, or for reasons that related to the transfer, and concluded that they were related to the transfer; then, separately, asked whether they were for economic, technical or organisational reasons. He did not, despite the suggestion made by Underhill LJ, separately analyse whether those reasons entailed a change in the workforce but rolled that consideration up with his consideration of the individual reasons.
  1. In the case of Michael Omezi, who had been employed in customer services, the Judge expressed himself satisfied that the principal reason for his dismissal was the relocation of the call centre services from Barnet to Coventry. That reason, not the broad financial reason that underlay the whole plan, was the operative reason in his case. That led to his conclusion that the Respondents had not established an ETO reason entailing changes in the workforce in his case.
  1. It is the other cases that fall for particular consideration here. In respect of Andrew Huntingford, the Judge concluded that the principal reason for his dismissal was that his role was being split and relocated to three different places and they were to be Barnet, Bromley and Blackburn. Ian Knowles, who worked also in the revenue and benefits section as a housing benefit officer, found his job divided amongst housing benefit officers at Blackburn. In Kay Perdikou's case, her role was split (paragraph 26):

"26. … such that 70% of it went to Bromley in relation to reconciliation work, 15% went to a different team in Bromley, the CS team responsible for control systems and 15% of it, the freedom of information and complaint work, stayed in Barnet. She was offered a position at Bromley doing reconciliation for Barnet work most of the time, but for other local authorities as well, but she decided against accepting the role on the grounds of the travelling time. She was dismissed in my judgment primarily because her role was transferred to Bromley, albeit in two separate ways. It might be said that, of equal importance was her decision not to accept the alternative role offered. Had she accepted the alternative role she would still have been dismissed, although her dismissal would not count for redundancy purposes: see s.138(3) of the Employment Rights Act 1996. My view is therefore that the principal reason for her dismissal was the relocation and partial splitting of her role."

  1. In respect of Christopher Johnson, a revenue control officer, the principal reason for his dismissal was the splitting and relocation of different parts of his role to Bromley, Barnet and Blackburn. Ushakiran Mandora, who worked for HR payroll as a customer service adviser, found her job split between Carlisle and Belfast. The reason was the splitting and relocation of those elements of her role. In the case of Julian Osborne, who worked in IT support for HR pensions, some part of his job went to Sheffield and some to Bromley, and the Judge concluded that he lost his job because his role was split and the various elements relocated to three different locations. In the case of Vimal Shah, some elements of his job were to be done in Sheffield, some via the business support unit semi-automatically and some at Hartlink, and a proportion of his role transferred to Darlington, where it was to be carried out by another. That led to a conclusion that the principal reason for his dismissal was the splitting of his role and the relocation of different elements of it to different locations.
  1. Janet Lingard is another in respect of whom I shall set out the findings in greater detail. At paragraph 30 the Judge said:

"30. Janet Lingard's role was relocated to Darlington and, although there were some differences between her role and the corresponding role in Darlington, in my judgment they were not significant. She could have transferred to Darlington, but chose not to do so. Her dismissal was primarily because her role relocated to Darlington."

  1. When considering whether there was an ETO reason in her case, the Judge said (paragraph 40):

"40. … Miss Lingard's role was transferred to Darlington. Although there were changes to her role, in my judgment they were not significant, but the reason for her dismissal was an organisational one. …"

  1. At paragraph 41 he said, in respect of her and others concerned in HR pensions:

"41. I am satisfied that it was the respondent's objective to achieve reductions in the number of staff engaged in providing pensions work from 11 to 7.75. … The reasons for the dismissals of these three claimants were technical and/or organisational reasons against a financial background. It was the respondent's objective to reduce the number of staff engaged in this work and to locate where the work was done at its centre of excellence in Darlington. This clearly involved changes in the functions of some jobs and a reduction in the numbers overall, even though the role of pension administrator, such as Janet Lingard had fulfilled, was not much altered in my judgment. The change in numbers and job functions generally affected her. As regards numbers, it could not be said with certainty that, if all the pension administrators in Barnet had been willing to move to Darlington, she would have retained her job, even though the consultation document … would make the staff involved think that that would be the case. In Miss Lingard's case therefore she was affected by the change in numbers. It follows that, in the case of these three claimants, there was an ETO reason for their dismissals, which entailed a change in the workforce."

**The Challenge**
  1. Mr Brittenden, who did not have the advantage of appearing below, advances three grounds of appeal on behalf of the group of Claimants. As to ground 1 (in respect of the Claimants Huntingford, Knowles, Perdikou, Johnson, Mandora, Osborne and Shah) he submits that the Judge found that the principal reason for dismissal in each case was the geographical relocation of parts of each role and the splitting of the roles themselves - I interpose to note that that somewhat reverses the order in which the Judge set out the split of the roles and relocation in each case save that of Perdikou - and that in making those findings the Judge failed to make any finding upon an undertaking that Capita had given to the Claimants. In a letter to the Claimants' unions of 13 January 2014, Capita committed to any employee who wished to be redeployed into any of the new locations being able to do so without being required to undergo any competitive process. In other words, any employee affected by the reorganisation of services along the lines I have set out would be entitled to keep a job with the Respondent. Indeed, in the particular case of Miss Lingard, typical of others, Capita said in its ET3 that she was offered an opportunity to be redeployed to Darlington, which may have involved working on Barnet work, and pointed out that the Respondent's operations were such that there would have been opportunities for anyone wishing to transfer either to carry out work for Barnet or for its other local government pension scheme operations (see paragraph 12 of the ET3).
  1. The Claimants had stressed the effect of those undertakings in their submissions to the Tribunal. Thus Ms Joffe of counsel, whose submissions they were, said at paragraph 18 of her closing submissions in relation to what the reason or principal reason was that in no case was it because of a reduction in numbers or because of a change of content of the role; it was, rather, one of geographical location. In dealing with the case, the Judge made no particular reference to that submission, nor did he refer to the offer that had been made, except in passing. There is a reference to it in paragraph 41, that being the reference to the consultation document as quoted above. This was, however, submitted Mr Brittenden, a central part of the argument. It deserved to be dealt with by the Tribunal. Considering the undertaking was plainly material, he argued, in determining what the operative reason was for the dismissals. If the principal reason why the individuals were dismissed was the fact that they were deterred from applying for a role in a different location as opposed to being concerned about the content of the roles that were available, then their dismissals would automatically be unfair. The reasons may have been economic, technical or organisational reasons, but they would not have entailed a change in the workforce in the sense of a change of numbers or a change of functions.
  1. This is a challenge on the basis that the Claimants do not know why their principal submission was rejected. Mr Brittenden accepts, as is indeed the law, that a Tribunal does not have to dot every "i" nor cross every "t" nor refer to every point. But that is distinct from not mentioning the "i"s or the "t"s at all (see Tran v Greenwich Vietnam Community . He maintains that taking into account the assurance given by the employer that in effect there would be no compulsory redundancies (my words) would require a close focus upon what the reasons for the dismissal actually were, which may well not have been the economic, technical or organisational reasons that the employer asserted.
  1. In my view, the answer to this submission is that given by Mr Palmer in his response. The parties are entitled to know why it is they have won or why it is they have lost. A court on appeal should be able to read and understand a Judgment so that it knows the essential reasoning. The essential reasoning here is, in my view, clear. The Judge looked at the general position and analysed in each case why it was in that individual case that there had been a dismissal. He did not consider the precise terms and conditions of the individual contracts of employment and did not consider the precise job descriptions any more than very generally, but no challenge was taken to that below, nor has it been here. His conclusion was in each case one individual to the lead Claimant concerned. In setting out the reason for her dismissal it must be remembered that here it was accepted by both parties that there had been a dismissal effected by the employer and the reasons are sufficiently and clearly explained, at least in the cases of all save possibly Perdikou and Lingard, to which I shall come.
  1. Thus it seems clear to me that if by reason of the restructuring consequent upon the transfer the job functions that had been operated by individuals as the essential part of their contract with Barnet were to be split, to be done thereafter in different locations or by different people this would both be a change in function, thus complying with the Berriman approach, but would also show that the contract under which the individual had worked was terminated within the meaning of section 95. The question of whether the employee might have retained employment in another capacity or with other functions with Capita is not the central question at this stage of the case. The promise that was made to employees may be of great significance and may be highly relevant when the Claimants' cases come to be litigated further to see whether they were unfairly dismissed by reason of redundancy or for some other substantial reason, though not automatically unfairly dismissed by reason of the operation of Regulation 7(1).
  1. In short, I do not accept that the Tribunal Judge here was obliged to deal specifically with the undertaking, having on the facts come to the conclusion that the role of employees such as Mr Huntingford (taking him merely as an example) had been divided up and redistributed. If so, he could no longer have been expected to do it. By reason of the employer's actions his job had disappeared. There was a dismissal. The Judge was entitled to conclude that that was for an economic, technical and organisational reason and because of the change of functions was entitled to conclude that it entailed a change in the workforce. The impact of the promise would in that context be beside the point at this stage, though not without relevance, and maybe significant relevance, at a later stage in the case.
  1. The second ground was that in relation to the lead Claimants employed in the revenues and benefits service - that was, Knowles, Huntingford, Perdikou and Johnson - the Judge had failed to refer to the evidence of Mr De La Rue, head of revenues and benefits. This was said in the Notice of Appeal to be that the Claimants had lost their roles because the work relocated geographically. The reason for saying this and the evidence that it was said comes from Ms Joffe's closing skeleton to the Tribunal, in which she stated that Mr De La Rue, for example, expressly accepted in evidence that the revenues and benefits Claimants lost their jobs because their functions moved to other locations. That is a different formulation from the way it is put in the Notice of Appeal. As I have indicated, functions were moved to different locations, the job being split in many cases so that that could occur. The expression at paragraph 24 of the closing submissions is equally applicable to describe that as it is to describe a mere change of location, to which the principle from the case of Bersagni would apply.
  1. The fact is that the Judge made a decision that is essentially one of fact. He decided in each case what the reason for dismissal was. No particular point was taken as to the particularity of those reasons. As such, those are findings of fact that can be challenged only if they are perverse or reached in material misapprehension of the evidence. There is insufficient material here for me to be satisfied that they are either.
  1. I turn to the third ground. This is in relation to the lead Claimant Miss Lingard. Mr Brittenden argues that the Judge found at paragraph 30 that her dismissal was primarily because her role relocated to Darlington. He had separately found in the same paragraph that there were no significant differences between her role at Barnet and the role she would have occupied had she moved to Darlington. Thus, he submits, there is no principled distinction between her case and that of the lead Claimant who succeeded, Mr Omezi. Because the principal reason was that she did not wish to go to Darlington and was dismissed because of that, her dismissal did not entail changes in the workforce. It was unique to her. The principle of the Bersagni case applied.
  1. The Judge, having said that there was no significant difference in role, then defined at paragraph 40 the reason for her dismissal as being organisational. That is, to my mind, unexceptional, in that a change of operations from one location to another may legitimately be described as being for an organisational reason. It does not, however, fulfil the requirement that an ETO reason must entail changes in the workforce. The Judge repeated that the changes to her role were not significant. This is in contrast to the cases of others, where he had found that there were significant changes in the roles.
  1. His reasoning at paragraph 41 then falls for consideration. The conclusion, ultimately, that her dismissal entailed a change in the workforce appears to have been reached on this basis; first, that the general change in numbers and job functions affected her (thus far, this merely sets the context and does not alter the reason for her dismissal, nor does it help with whether the reason for her dismissal entailed changes in the workforce). The Judge went on, having identified that there were changes in numbers and job functions generally, not to deal with any change of job functions at all in her case, presumably because in her case there was no significant change in job function, but focussed purely on numbers. He said that, "it could not be said with certainty" that if everyone who had done her type of work had moved to Darlington she would have kept her job, and that therefore she was affected by the change in numbers. I find this difficult to follow logically. The chance that she might not have kept her job because there were too many people fulfilling the same function as she did, and the conclusion that she was thereby affected by the numbers of the workforce, both have to be set against his earlier conclusion as to what was the actual reason for her dismissal, which had nothing to do with the numbers of employees potentially able to take the work but principally to do with the location of the work. The conclusion in the last sentence of paragraph 41 that because, in effect, she was affected by the change in numbers overall the reason for her dismissal entailed a change in the workforce is, to my mind, a non-sequitur: the reason was a change in location, not that she was to be dismissed as, for instance, being the less favoured of one of two candidates for a job where both had occupied such a post beforehand but now only one of them was to do so.
  1. As to her case, Mr Palmer is content to accept that there may be an infelicity of expression in the Judgment. He contrasts the conclusion that the general position in change of numbers and functions affected her with the conclusion reached in the case of Mr Omezi, where there was a clear finding that the principal reason was relocation and it was not the broad financial reason that underlay the whole plan. There is no such similar finding in the case of Miss Lingard. He argued, therefore, that the infelicities of expression were not fatal to the overall finding.
  1. My conclusion in respect of her case is that the Judge was in error. He should have adopted the approach that he had set out earlier as being the proper approach, and as endorsed by Underhill LJ's words in Hazel, by identifying the reason for dismissal and then whether the reason for dismissal in that individual case was one that entailed changes in the workforce. Though in the case of Bersagni on the facts before the Tribunal from which the appeal came to this Tribunal there might have been some difference of skill set in respect of the parking enforcement officers who were transferred, and the skills that they might have been expected to deploy in the transferred employment, that was not part of the finding as to the reason for dismissal in their case. I see no material distinction in principle between that decision and the present. For what it is worth, I accept, too, the argument that Mr Brittenden advances that the chance that she might not have kept her job cannot affect the reason the employer had for the actual termination of her contract of employment. If the chance that she might no longer have remained in employment is relevant, it is relevant at the stage at which, if ever, a Polkey v A E Dayton Services Ltd [1987] IRLR 503 HL deduction may fall to be made in assessing compensation. It is not an appropriate consideration at this stage of the hearing.
  1. I have wondered in the course of the hearing whether in the light of my view that the Judge did not follow through the consequence of his clear finding, as I think it is, that Miss Lingard was dismissed because of the location of her new work, to a conclusion that the reason for her dismissal was not an ETO entailing changes in the workforce, there was a failure of reasoning and there could be no other answer than that the dismissal was for a reason connected with the transfer, and automatically unfair. It is only this case that this Tribunal would be entitled to allow the appeal and substitute a decision to that effect. It might be that if the facts as found had been properly analysed this might also permit the conclusion that there was an ETO reason entailing changes in the workforce, in which case the decision would have to be remitted to the Tribunal for decision. I propose to hear counsel on this particular question at the conclusion of my Judgment.
  1. I have thus far not dealt with the case in respect of Perdikou. No particular and separate point is taken in respect of Perdikou as such by Mr Brittenden. In her case, it might be thought that the Judge concluded that the principal reason for her dismissal was primarily because her role was transferred to Bromley. That is indeed how he expresses it part of the way through paragraph 26. It was more equivocal in the last sentence of paragraph 26, where two features exist: both relocation and the partial splitting of her role. It was that partial splitting that Mr Palmer took me to in his response. The facts were that 70 per cent of her job was to go to Bromley but part of the other 30 per cent to a different team in Bromley and part remaining in Barnet. The reference to "albeit in two separate ways" is a reference to the split in her job function in Bromley. It seems from the reference that the Judge made to the possible acceptance of the alternative role offered that she would still have been dismissed, and that he had in mind the same point as I made at the outset of this Judgment: that her contract would be terminated because it would have to be, given a context in which the functions to be performed under it were significantly different. Albeit with some hesitation, therefore, I have come to the conclusion that the Judge was entitled to conclude that the partial splitting of her role was such in those circumstances as to amount in her case to a termination of her contract, and as an ETO reason entailing changes in the workforce, related as they were to the issue of functions.
  1. It follows, in conclusion, that on grounds 1 and 2, for the reasons I have given, the appeal must be, and is, rejected; on ground 3, for the reasons I have given, it is allowed.
  1. I heard counsel as to whether this is a situation as to whether I should exercise the substitution powers of this Tribunal or should remit for further consideration by this Tribunal when it turns to the overall assessment of the cases as it will do in due course. It seems to me that there is a distinction to be drawn on the facts between the case of Miss Lingard and the cases of others. In her case the contractual functions she performed were not split between different locations or between different people. Though the functions are not exactly identical, the Judge was not satisfied that they were in substance really any different. In her case, an individual reason for her not going to Darlington is clear, and clearly expressed. I accept, therefore, Mr Brittenden's submission that the Judgment is sufficiently clear within its own terms, and that it is the reasoning that is in error in paragraph 41. That reasoning is relevant, if at all, to issues of compensation and Polkey; it is not relevant to questions of whether the dismissal by reason of the non-transfer in her case to Darlington is for an organisational reason entailing changes in the workforce. Consistent with the Judge's own decision in the Omezi case and consistent with the decision of this Appeal Tribunal in Bersagni, therefore, I think that there is no other conclusion that the Judge could have come to on the facts as he put them than that her case was one in which she is entitled to a finding of automatically unfair dismissal. Compensation is, of course, another matter. Accordingly, I substitute my decision.
**Costs**
  1. The application for costs by way of repayment of fees raises a point that I have not come across before. That is, what happens when what are technically separate cases are appealed together, as a cohort of 29 Claimants represented by 8 lead cases, and one only of those lead cases succeeds, possibly bringing one or two other cases in the cohort in its wake. One out of three grounds succeeded. The bulk of the argument probably was on earlier grounds, but unless the fee had been paid the one successful litigant would not have been able to succeed at all, and no offers were made. Paying the fee was necessary to bring that appeal. I think in the current circumstances I should reflect the various considerations by adjusting the extent of the recovery of the fee, which I shall order in part, and it seems to me that in this case the fair order would be that the Respondent pays to the Appellant the sum of £1,000. It seems to me artificial to divorce her case from the context set by the others. The fact that other appeals were brought and failed requires some recognition, in that one fee was paid for all, but that the case has broadly succeeded on an important plank of it. It seems to me that in these circumstances, between these parties, there should be a recovery of some of the costs incurred by paying the fees. The amount is one that is very much a matter of impression, reflecting the argument before me, reflecting the possibilities and reflecting also the fact that to some extent Mr Palmer has been successful, and to some extent, though this is not an application for costs as such but costs by way of fees, the Respondent has been put to some expense that it will not recover in respect of the cases that it has succeeded in defending. A balance of those considerations is not susceptible to close determination of a penny precise figure. Doing the best I can, I have come to a figure of £1,000, to be paid by the Respondent.

Published: 10/11/2016 13:15

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