England v Scotland, Wembley 1977

I’ll circulate this on #ukemplaw in the hope that someone there can answer this better than I can.

Scrolling through the new EAT decisions on Bailii, as everyone does, I came across the judgment of Lady Smith, President of the Scottish EAT, in Welch v The Taxi Owners Association (Grangemouth) Ltd that a telephone operator was not made redundant in circumstances where there was a decrease in the total amount of work available for her but an ongoing need for a part-time worker to fill some of her role.

Dismissing the claimant’s appeal, Lady Smith held that these circumstances did not and could not amount to redundancy. (The appeal could not succeed, she also found, because the claimant had not sought a redundancy payment in her ET1; neither had she put in any facs to satisfy the reasonableness issues in a dismissal for reason of redundancy) So far so good, and comprehensible as far as it goes.

The difficulty of the decision, which was heard at the Tribunal on 15 June 2012, is that just a month earlier (on 16 May 2012) the President of the EAT in England and Wales, Mr Justice Langstaff, had determined in Packman (t/a Packman Lucas Associates) v Fauchon, a case which turned on what looks to me like exactly the same issue, and in which the same authorities were cited, that there was a redundancy where hours were reduced but there was no reduction in the total number of employees working for a company.

The decision in Packman was explained by Langstaff J in the following terms:

“the lay members in particular of this Tribunal are glad that the result of the appeal is as it is, not least because from an industrial background one would approach the question of hours and number of employees by adopting an FTE (a full‑time equivalent) approach. Essentially, as the extract from Harvey suggests, the full‑time equivalent workforce in that example is cut from two to one, even though the number of employees actually working remains the same. There is a real reduction in headcount, measured by FTE. It is therefore, they consider, entirely consistent with actual industrial approach that the statute should have the interpretation which we think in law properly belongs to it; the consequences of another interpretation would, as it seems to them, have significant adverse effects upon the employment market.”

The decision in Packman appears not to have been brought to the attention of Lady Smith, presumably because it was only published after her own decision had been made.

Now, strictly speaking, it is possible to distinguish these cases as even if the law was rightly decided in Packman, the claimant in Welch probably “should” have lost her appeal – in that even if she was right on the law, she hadn’t properly lined up a complaint of unfair redundancy dismissal at the ET.

But, this is to underestimate the vehemence with which Lady Smith dismissed the claimant’s legal arguments in Welch – which she treated as hopeless (not knowing that her felow President had approved them just 4 weeks before)

Two questions then on the issue of principle (i.e. whether you need a reduction in the headcount for a redundancy):
1) Is there an underlying consistency between these two decisions that I’ve missed?
2) Who is more authoritative: the President of the EAT in Scotland, or the President in England and Wales?