The claimant was dismissed for redundancy and he claimed unfair dismissal and age discrimination at the ET. He lost both claims. Before he was made redundant, his role was assumed by a much younger colleague with very little experience and the claimant very understandably felt humiliated by the manner in which he had been treated. However, this incident did not constitute his age discrimination claim and by the time of this appeal it was time barred. The claimant applied for permission to appeal.

The Court of Appeal refused permission to appeal. Whilst expressing sympathy that it was only when the claimant subsequently lost his job that it turned out to be a matter of importance whether or not he should have made a challenge to the earlier appointment on age discrimination grounds, they concluded that there was no basis upon which an appeal could have been entertained by the Employment Appeal Tribunal and there was still less basis upon which permission to appeal to this court could be granted.

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A2/2014/1606

Neutral Citation Number: [2015] EWCA Civ 904

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand

London, WC2A 2LL

Thursday, 9 July 2015

B e f o r e:

LORD JUSTICE TOMLINSON

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Between:

PASZKIEWICZ  (Applicant)

v **

JEYES LTD  (Respondent)

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DAR Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

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Dr M Paszkiewicz appeared on behalf of the Applicant

The Respondent was not present and was not represented

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J U D G M E N T

1. LORD JUSTICE TOMLINSON: This is an application for an extension of time within which to make a second application for permission to appeal from an order made by Lady Stacey sitting alone in the Employment Appeal Tribunal which is dated 2 April 2014, sealed on 15 April 2014. By that order, the judge dismissed the Applicant's appeal under rule 3(10) of the Employment Appeal Tribunal Rules 1993 from a decision of Employment Judge Pritchard Witts sitting at the Employment Tribunal at Bury St Edmunds who had in turn dismissed the Applicant's claims for unfair dismissal and age discrimination.

1. It should be noted at the outset that an appeal lay to the Employment Appeal Tribunal only on a point of law. Furthermore, this application is an application by definition to bring a second appeal, which is therefore subject to the more stringent test which requires the court to be satisfied that some point of principle or practice is raised or that there is some other compelling reason why a second appeal should be permitted.

1. The broad facts, in very brief outline, are that the Respondent is a well known manufacturer of chemical products and the Applicant was an employee of the Respondent for five years working in the international department as an International Commercial Manager from 4 June 2007 to 10 August 2012.

1. He was dismissed, as the Respondent said, as a result of redundancy. Happily, he has found new employment, but he feels very strongly that the circumstances in which he was dismissed did not amount to a redundancy and that the Employment Tribunal came to an incorrect conclusion on that point.

1. The position is that following a change in the shareholding of the Respondent company, it undertook a business review in April 2012, following which it announced a change of strategy that resulted in a focus on its core UK consumer brands, which in turn led to a restructuring resulting in a reduction of personnel from 1,800 to 500.

1. These changes substantially reduced the turnover in the International Department in which the Applicant worked. Prior to the restructuring, five staff worked in the International Department. The head of the department was the International Commercial Director, a Mr Harding, who was supported by the Applicant and three Customer Managers. The proposed new structure after the restructuring was to retain the role of the International Commercial Director supported by just one Customer Manager.

1. As I understand it, the Applicant and the three Customer Managers were placed at risk of redundancy on 14 May 2012. Two of the three Customer Managers opted to take voluntary redundancy. The third was retained as the only remaining Customer Manager. That position was at a very significantly lower level than that of International Commercial Manager, which had been the Applicant's post, and was not therefore considered by the Respondent to be a suitable alternative for the Applicant, nor indeed did the Applicant indicate that he wished to be considered for the role.

1. The position of the Applicant is that to all intents and purposes his role was simply assumed by the previous head of the department, the International Commercial Director Mr Harding. Mr Harding was a very much younger man with very little experience and Mr Paszkiewicz, the Applicant, very understandably felt humiliated by the manner in which he had been treated. Furthermore, he points to the fact that Mr Harding, who assumed the role, very quickly proved not to be up to it and is no longer employed by the Respondent.

1. The difficulty which the Applicant faces in making this application, and indeed earlier applications, is that the Employment Tribunal made a very clear finding of fact. The very clear finding of fact is expressed by the Tribunal in paragraphs 7.1 and 7.2:

i. "7.1. On the evidence, the unanimous conclusion that the Tribunal has reached is that this was a dismissal by means of redundancy. The redundancy falls within the definition set out within section 139(b)(i) on the basis that requirements of the restructured business for employees was to carry out the work that the Claimant did had diminished and was expected to diminish. The turnover of the company was radically reduced, as was the global head count. This was a root and branch restructuring of a business that had a seismic impact upon the workforce in East Anglia and other parts of the globe. There is no doubt that the Claimant, in the course of his successful career, had established and nurtured profitable contacts that led to increased business and profits for the Respondent. Unfortunately for the Claimant, the Respondent did not regard this as a consideration for the purposes of its restructuring exercise. As the Respondent is entitled to manage its business in any way that it sees fit, this does not form the foundation for a claim of unfair dismissal.

ii. 7.2. The test is not whether the amount of work was reduced but whether the requirements of the business for employees to carry out the work of a particular kind have ceased or diminished. The facts in this case are overwhelming. The stand alone role of Commercial Manager had gone. The reorganisation meant that pursuing work overseas had effectively been abolished and converted into a UK based process of taking orders placed by customers from abroad.

iii. 7.3. Accordingly, there was an admissible reason for the Claimant's dismissal and, in the course of cross examination, it appears to this Tribunal that the Claimant is not in any position to challenge the prerogative of the Respondent to restructure it own company, as indeed the documentary evidence corroborated in any event."

1. The Tribunal then went on to deal with questions of fairness, which in turn related to the manner in which consultations had been carried out, as to which there is no issue because it is not suggested by the Applicant that there was any shortcoming in that behalf.

1. I am now the fifth judge before whom this matter has come. After the hearing in the Employment Tribunal and the disappointing outcome for the Applicant, he sought to appeal to the Employment Appeal Tribunal and put in grounds of appeal or a notice of appeal which I have read, dated 17 December 2013.

1. That matter came before Mitting J at the Employment Appeal Tribunal and he pointed out:

i. "The grounds of appeal disclose no reasonable grounds for bringing the appeal. The Employment Tribunal was entitled to conclude that the Respondents' requirements for employees to carry out the work which the Claimant had done had diminished and was expected to diminish and it had acted reasonably in selecting him for dismissal rather than his immediate superior, Mr Harding. It made no error of law in so concluding. It was also entitled to find that the Respondents had not unlawfully discriminated against the Claimant on the grounds of his age."

1. The Applicant exercised his right pursuant to rule 3(10) of the EAT rules, in consequence of which there was an oral hearing before Lady Stacey sitting alone in the Employment Appeal Tribunal on 2 April 2014.

1. On that occasion, as today, the Applicant has been represented by his wife, Dr Maria Paszkiewicz, who has also marshalled her arguments in writing in the form of a skeleton argument that she has placed before me and which she has supplemented with oral submissions. It is apparent, and it is of course unsurprising, that both Dr Paszkiewicz and her husband feel very strongly that the conclusions to which the Tribunal came were wrong. Naturally, Mr Paszkiewicz feels that his long years of experience and his success in the role were cast aside and that the company, for its own reasons, wished to give his job to the younger man, Mr Harding.

1. But as Lady Stacey sought to point out in the course of her careful and sympathetic judgment, that is not an argument which can be run in proceedings of this sort because the Applicant needs to find some misdirection in law by the Tribunal below, not simply a conclusion of fact which is not agreed with by the Applicant.

1. Lady Stacey was at pains in her judgment to point out at paragraph 6 that the concepts of unfair dismissal, redundancy and age discrimination are all statutory concepts and that one has to look very carefully at the definitions in the statutes and in particular the definition of redundancy in section 139(1)(b)(i) because that involves the requirement for employees to carry out work diminishing or ceasing, not the work itself diminishing or ceasing.

1. At paragraph 17 Lady Stacey emphasised that the Tribunal had directed itself correctly at paragraph 7.2 of its reasons when it pointed out in a passage to which I have already referred:

i. "The test is not whether the amount of work was reduced, but whether the requirements of the business for employees to carry out work of a particular kind have ceased or diminished."

1. At paragraph 19, Lady Stacey referred to what the Employment Tribunal had said about fairness. At paragraph 21, Lady Stacey dealt with the significance of the circumstance that Mr Harding had subsequently left the company and also with reliance on what could be gleaned from the budget for the years 2012 to 2013. As the judge pointed out, any suggestion that Mr Harding turned out not to be suitable for the job is irrelevant to what the Tribunal had to decide.

1. Similarly, any suggestion that the budget continued in the year following is not to the point because the company was entitled to decide that whilst they were still doing work, they wanted to reorganise the way in which the employees did the work. She pointed out that that is why she had in the earlier passage in her judgment carefully explained what is meant by the definition in section 139.

1. At paragraph 22 is the nub of it where Lady Stacey points out that as the Employment Appeal Tribunal can deal only with appeals on a point of law and cannot revisit the facts, she agreed with Mitting J, having taken her own fresh view of it, that no error of law is shown by the grounds of appeal. The Employment Tribunal was entitled to make the decisions that it made. It was entitled to conclude that the requirements for employees to carry out the work that the Claimant had done was ceasing or diminishing. It was entitled to conclude that the employer acted reasonably in dismissing the Claimant rather than dismissing Mr Harding or indeed anyone else.

1. The matter then came before Sir Stephen Sedley on an application for permission to appeal to this court. It is perhaps relevant for me to mention for the benefit of Dr Paszkiewicz and Mr Paszkiewicz that Sir Stephen Sedley, although now retired, is a judge who has had very great experience in the employment field and is in particular well versed in matters of discrimination.

1. He makes in his reasons for refusing permission to appeal the point which I have sought to make to Dr Paszkiewicz that whilst he could understand, as I can understand, Mr Paszkiewicz's rejection of the findings of the Employment Tribunal, that does not make them appealable. An appeal requires a live issue of law and for the reasons carefully explained by Lady Stacey, there is no such issue here. The Employment Tribunal has applied the relevant law to the material facts and has concluded that this was a genuine redundancy situation involving a fair selection process.

1. Sir Stephen Sedley was more troubled on the question whether there might have been unlawful discrimination on age grounds in the much earlier episode in October 2011 where the Claimant had not been considered for the post of International Commercial Director which then became available and to which Mr Harding had then been appointed. But as Sir Stephen pointed out in his reasons, any claim alleging age discrimination arising out of that episode was time barred and the Employment Tribunal had declined to exercise its powers to extend the time for bringing such a claim.

1. Dr Paszkiewicz in making her submissions today very frankly recognised that she had realised that any claim based upon that incident in October 2011 was well and truly time barred by August 2012 and that she had included reference to it largely by way of background.

1. As Sir Stephen Sedley pointed out, the circumstance that Mr Paszkiewicz made no claim in relation to age discrimination in 2011 has given rise to what may seem harsh consequences in that it was only when in 2012 Mr Paszkiewicz subsequently lost his job that it turned out to be a matter of importance whether or not he should have made a challenge to the earlier appointment on age discrimination grounds. But the effect, as Sir Stephen pointed out, was that it was only the dismissal in 2012 that remained open to challenge and Dr Paszkiewicz has indicated that she had realised that that was the case.

1. So the position, I am afraid, is that in common with the other four judges who have had to consider this matter, whilst of course I have every sympathy for Mr Paszkiewicz in the circumstances in which he finds himself making these applications and having to be before the Employment Tribunal in the first place, for the reasons which have been given both by Sir Stephen Sedley and by Mitting J and at great length by Lady Stacey in her careful judgment, the fact is that there was no basis upon which an appeal could have been entertained by the Employment Appeal Tribunal and there is still less basis upon which I can grant permission to appeal to this court.

1. For all those reasons therefore, whilst, as I have indicated, I have great sympathy with Mr Paszkiewicz, I must refuse permission to appeal.