Murphy v Epsom College

Redundancy may arise from a reorganisation even where the employer’s total work remains undiminished. The question is whether the requirement for employees to carry out a particular kind of work has ceased or diminished. An employer may replace a post combining general plumbing and heating duties with a heating engineer possessing different skills and broader responsibilities, and reduce the number of full-time plumbers, even though some plumbing work remains and the replacement performs some plumbing. The tribunal must determine from the facts whether the reorganisation changed the work required and its effect on staffing. The Employment Appeal Tribunal generally cannot revisit those findings except on a point of law. A dismissal should not be decided on an unargued alternative ground, although that issue need not affect the outcome where redundancy is established.

Mr Murphy, a resident plumber at Epsom College, challenged his dismissal after restricting heating-related work which he said fell outside his contractual duties and seeking additional remuneration. The industrial tribunal majority found a fair dismissal for redundancy or, alternatively, some other substantial reason; a minority considered that his attitude was the true reason. The Employment Appeal Tribunal declined to interfere, holding that the tribunal’s decision was not open to challenge on fact and that the alternative ground had not been pleaded or argued. The appeal concerned whether the findings established redundancy under sections 57 and 81 of the Employment Protection (Consolidation) Act 1978, and whether the unpleaded alternative could sustain the dismissal.

Disposition and redundancy

Appeal dismissed with costs. The Court of Appeal upheld the majority finding that Mr Murphy’s dismissal was attributable to redundancy.

1. Under section 81(2)(a) of the Employment Protection (Consolidation) Act 1978, the question was whether the dismissal was attributable wholly or mainly to a cessation or diminution in the employer’s requirement for employees to carry out work of a particular kind.
2. The college was entitled to reorganise its works department by appointing a heating engineer with different qualifications and broader responsibilities. That engineer could undertake some general plumbing work. The college therefore no longer required a second full-time plumber, although its overall requirement for heating and plumbing work remained substantial.
3. The size and balance of the workforce were matters of the employer’s commercial judgment. Whether the reorganisation changed the particular kind of work required, and what effect it had on staffing, were questions of fact for the industrial tribunal. The Employment Appeal Tribunal could interfere only on a point of law, applying the principles referred to in Hollister v National Farmers’ Union [1979] ICR 542 and Edwards v Bearstow.
4. The college had not pleaded or argued dismissal for some other substantial reason under section 57(1)(b). Natural justice required that a party should not have a case decided against it on a ground on which it had no opportunity to be heard. That point was immaterial because redundancy independently justified the dismissal. Lord Justice O’Connor added, obiter, that the Employment Appeal Tribunal could have corrected the industrial tribunal chairman’s manifest slip in announcing the statutory reason, had the matter been raised.
5. Robinson v British Island Airways Ltd [1978] ICR 305 offered little assistance because each reorganisation case depended closely on its facts. The order was dismissal of the appeal with costs, payable from the legal aid fund unless the Law Society objected within ten weeks, with legal aid taxation.

1. Court of Appeal. The appeal from the Employment Appeal Tribunal was dismissed with costs. The court upheld the industrial tribunal’s majority conclusion that the dismissal was by reason of redundancy.
2. Employment Appeal Tribunal. The tribunal declined to interfere with the industrial tribunal’s factual conclusions and treated the decision as legally unimpeachable on the pleaded issues.
3. Industrial tribunal. The majority found a fair dismissal for redundancy or some other substantial reason. A minority considered that the dismissal was really prompted by Mr Murphy’s attitude to his duties and remuneration.