The obligation on an employer set by the Employment Rights Act 1996 Pt X s.106(2)(a) to inform an employee upon his engagement that his employment would be terminated upon return of a permanent employee would not be met unless the language used in the written information given was clear and unambiguous.

 

The appellant employer (V) appealed against an employment tribunal's decision that the respondent former employee (D) had been dismissed by reason of redundancy.

D had worked for V in its museum, in effect, on secondment on his civil service terms and conditions as part of a contract which V had contracted out to the public sector. Following a prolonged period of absence due to illness and the consequent fulfilment of his post by another, D returned to work elsewhere in the museum in temporary positions, the last of which was on a short fixed-term contract as a replacement for a permanent employee who was on maternity leave. When she returned, D was unable to find an alternative role and was, as a result, dismissed. D complained to the tribunal that he had been dismissed by reason of redundancy and was therefore entitled to a payment pursuant to civil service terms and conditions. V contended that by the application of the Employment Rights Act 1996 Pt X s.106 the reason for D's dismissal had to be deemed to be some other substantial reason and not redundancy, and that D's incapability was that reason. The tribunal found, inter alia, that (i) as V had not unambiguously stated that D's employment would be terminated upon resumption of work by the permanent employee pursuant to s.106(2)(a), that provision was inapplicable to D's situation; (ii) incapability was not the reason for D's dismissal; (iii) the underlying cause of D's dismissal was redundancy. It fell to be determined whether the circumstances of D's dismissal were such as to attract the provisions of s.106 and, if not, whether that was by reason of incapability or redundancy or for some other substantial reason.

HELD: (1) V had failed to make an unequivocal statement as to D's future termination that fulfilled the requirements of s.106(2)(a). That provision envisaged a clear notice being given at the outset, so as to leave no doubt on the part of the employee as to the circumstances in which the contract would end. Such statements had to be unequivocal; it was not open to an employer to ask a tribunal to infer the necessary sentiment from a combination of the relevant text and the surrounding factual matrix. If the language of the written information did not convey the simple message then the provisions of s.106(2)(a) would not be satisfied. The factual matrix was, however, of critical importance to a tribunal's determination of whether an employer had dismissed an employee in order to make it possible to give work to another, pursuant to s.106(2)(b). That being so, the tribunal's conclusion that the reason D's employment had ended was not, as V suggested, to facilitate the return of the permanent post-holder but, rather, because he had not found that his own permanent post was unimpeachable (see paras 42-43 of judgment). (2) There were, at best, competing reasons why D had been dismissed and, at worst, no clearly articulated reasons at all. In those circumstances, the tribunal had been entitled to make a finding of fact distilled from and supported by the contemporary correspondence and to reject incapability as the reason for D's dismissal, Nelson v BBC (No.1) [1977] I.C.R. 649 and Wilson v Post Office [2000] I.R.L.R. 834 considered (para.49). (3) The statutory definition of redundancy dismissal set out in s.139(1)(b) required a tribunal to engage in an analysis of whether the need of the employer to carry out work of a particular kind had ceased or diminished, Murray v Foyle Meats Ltd [2000] 1 A.C. 51 and Safeway Stores Plc v Burrell [1997] I.C.R. 523 applied. In the instant case, the issue was not whether there was less need for those on a civil service grade to carry out the work but whether there was less of a need for such work to be carried out at all. On that issue, the tribunal had confused the fact that D had failed to secure alternative work with both a general redundancy situation and the requirements of the business for employees to carry out work of a particular kind. Accordingly, the case would be remitted to the same tribunal for it to consider the sole issue of whether, in the circumstances, the fact that there was no alternative employment available at the effective date of termination amounted to a redundancy or to some other substantial reason of dismissal (paras 52, 55-58). (4) (Obiter) There might be cases where, even though s.106 was engaged, the reason for dismissal might still be redundancy. Where another reason for dismissal existed, s.106 did not operate so as to deem the dismissal to be for some other substantial reason; that only happened where there was no other reason for dismissal than to facilitate the return of a permanent post-holder (para.46).

Appeal allowed in part.

 

Counsel for the appellant: Stuart Brittenden.