JT (Jersey) Ltd v Mark Wood

CourtCourt of Appeal
JudgeBompas JA
Judgment Date10 October 2016
Neutral Citation[2016] JCA 183
Date10 October 2016

[2016] JCA 183



Jonathan Crow, Q.C., President

George Bompas, Q.C.; and

David Perry, Q.C.

JT (Jersey) Limited
Mark Wood

Advocate E. B. Drummond for the Appellant.

Advocate H. J. Heath for the Respondent.


Employment (Jersey) Law 2003.

Wood v JT (Jersey) Limited [2016] JRC 089B.

Polkey v AE Drayton Services Ltd [1988] AC 344.

Employment Rights Act 1996.

Voisin v Brown [2007] JLR 141.

Voisins Department Store Ltd v Soares [2014] JRC 004.

Luxicabs Ltd v Baal [2011] JLR 208.

Abernethy v Mott, Hay and Anderson [1974] ICR 323 (CA).

Foley v Post Office [2000] ICR 1283.

Cresswell v Board of Inland Revenue (1984) IRLR 190 case.

North Riding Garages Ltd v Butterwick [1967] 2 QB 56.

Redundancy Payments Act 1965.

British Home Stores Ltd v Burchell [1980] ICR 303.

W. Weddel & Co Ltd v Tepper [1980] ICR 286.

Packman v Fauchon [2012] ICR 1362.

Yeboah v Crofton [2002] IRLR 634.

Jafri v Lincoln College [2014] EWCA Civ 449, [EWCA] IRLR 544.

Sinclair Roche & Temperley v Heard [2004] IRLR 763.

Appeal against decision of the Royal Court.

Bompas JA

This is the judgment of the Court.


The Respondent, Mr Mark Wood, started working for the Appellant, JT (Jersey) Ltd (“JT”), in 1979. Over the following years he held various different positions there. Then, on 15 November 2013, his employment was terminated by JT with immediate effect by a letter of that date written by Ms Jilly Tostevin, JT's Head of HR Operations. The letter was headed “Re: Notice of Termination of Employment on the Grounds of Capability”. It did not give any further explanation of the reason for Mr Wood's dismissal. However, the reference to “capability” was intended to be a reference to what could be, as a matter of the Employment (Jersey) Law 2003 (the “2003 Law”), a reason supporting a fair dismissal, namely a reason relating to Mr Wood's “capability … for performing work of the kind which he was employed by [JT] to do” (see Article 64(1) and 64(2)(a) in Part 7 of the 2003 Law).


Mr Wood, whose job title at the time of his dismissal was “Transmission and Access Engineer”, then made a claim before the Jersey Employment and Discrimination Tribunal: his case was that he was a transmission engineer, that JT's requirement for employees to carry on the type of work done by transmission engineers had been and was expected to continue to be diminishing, and that in truth his dismissal had been for redundancy and was unfair so that he was entitled to a remedy under Part 7 of the 2003 Law for unfair dismissal.


The Tribunal, in a judgment given on 23 February 2015 following a hearing over three days in September and November 2014, rejected Mr Wood's claim and found Mr Wood's dismissal not to have been unfair, the reason for his dismissal being found to be one relating to his capability.


Mr Wood appealed to the Royal Court. The Royal Court (the Bailiff, Mr W.J. Bailhache, QC) heard his appeal in August 2015, this being (by Article 94(1) of the 2003 Law) an appeal on a question of law only. In its judgment handed down on 26 April 2016 ( Wood v JT (Jersey) Limited [2016] JRC 089B) the Royal Court allowed Mr Wood's appeal and remitted his case to the Tribunal for a rehearing. The Royal Court found there to have been three of errors of law in the Tribunal's judgment.

  • (i) First, it was held that the Tribunal had misdirected itself on what constituted redundancy.

  • (ii) Second, it was held that the Tribunal had misapplied the principles in Polkey v AE Dayton Services Ltd [1988] AC 344 which would be relevant where performance procedures are in train in relation to an employee when the employee is dismissed for capability.

  • (iii) Third, the Royal Court found the Tribunal's decision to have been “perverse”; that is to say, a decision which no reasonable tribunal, directing itself properly on the law, could have reached.


A ground of appeal before the Royal Court which it rejected concerned the adequacy of the Tribunal's reasons. In rejecting that ground of appeal the Royal Court concluded as follows:

“In my judgment, the Tribunal in the present case gave a perfectly adequate explanation of its reasoning. I did not find it difficult to follow, even if from time to time the contentions of one of the parties were elided with the views of the Tribunal. … As indicated later, I think it would have been helpful if other matters were addressed.”


Mr Wood has not sought to reopen that ground of appeal, and we need say no more about it, save to draw attention to the last sentence just quoted. It is not easy to discern from the Tribunal's judgment how much of each party's factual case was accepted, or why. Essentially the material part of the judgment was brief and conclusory. This left the Royal Court, and on the appeal to us this Court, in a position where it is sometimes difficult to see why the Tribunal considered certain conclusions to be appropriate.


In this appeal we are called upon to review the decision of the Royal Court, there being eight grounds advanced by JT in support of its contention that the Royal Court's decision should be reversed. The first five are directed at the Royal Court's conclusions concerning redundancy; the sixth challenges the Royal Court's conclusions in relation to the principles in the Polkey case; the final two are concerned with the Royal Court's conclusions as to perversity.


This appeal therefore requires us to decide whether or not the Royal Court was correct in its identification of errors of law made by the Tribunal. However, as one of the errors of law identified by the Royal Court was that the Tribunal's judgment was perverse, we have also to consider for ourselves the evidence which was before the Tribunal to see whether it could within reason have supported the Tribunal's judgment on those issues on which the Royal Court held that it could not.


The evidence before the Tribunal, it is convenient to mention, included various contemporaneous documents, several of which we refer to in this judgment. There were witness statements made by Mr Wood and four witnesses called by him, namely Mr Timothy Langlois (a representative of Mr Wood's trade union) and Mr Bruce Clark, Mr Sean Brennan and Mr Gary O'Brien (all JT engineers). All these individuals also gave oral evidence. JT had witness statements from Ms Tostevin, Mr Marcus Irwin (at the material time Head of Design and Innovation/Chief Engineer and Acting Chief Operations & Technical Officer), and Mr Richard Summerfield (JT's Group HR Director). Ms Tostevin and Mr Irwin gave oral evidence. Mr Summerfield's unsigned witness statement was admitted as his evidence without his being cross-examined.


In relation to Mr Wood's dismissal two individuals played a central role. They were his immediate line manager, Mr Darren Bray, and Mr Bray's immediate superior, Mr Ronald Van de Ven. They were not called by JT to give evidence. This was a fact commented upon by the Royal Court in its judgment.


Assuming that we dismiss JT's appeal there is a further question. The Order made by the Royal Court and now under appeal has provided, so far as material, simply for the “the matter” to be “remitted to the Tribunal for reconsideration”. However the Royal Court's judgment supplemented this by inviting the Tribunal to consider the following questions, namely:-

“(i) Whether the nature of the job of an IP engineer was sufficiently different from that of a transmission engineer in the skills required and/or in the terms and conditions of work that it would be unreasonable for the Respondent to require the Appellant to retrain from the latter to the former .

(ii) Whether, having regard to (i) above, all evidence adduced and this judgment, whether the Appellant was unfairly dismissed because the Respondent did not have reasonable grounds to consider the Appellant's employment should be terminated on capability grounds .

(iii) Whether, even if the answer to sub-paragraph (ii) above is answered affirmatively, the Appellant's employment, on a proper analysis of the evidence and having regard to the answer to sub-paragraph (i) above and this judgment, was terminated on the ground of redundancy .

(iv) Whether having regard to the answers to the questions raised by sub-paragraphs (i) to (iii) above, the contents of this judgment generally and the true application of the Polkey test, the Appellant was unfairly dismissed .

(v) If the question in sub-paragraph (iv) is answered affirmatively, the amount of compensation payable to the Appellant having regard to the basis on which the unfair dismissal has been found to be established.”


This has given rise to an application on Mr Wood's behalf to vary in one respect the Order made by the Royal Court. On his behalf, Advocate Heath submitted in written contentions that this Court should determine that Mr Wood was made redundant. In her oral address to us, however, she modified this and submitted that this Court should determine that when he was dismissed there was a “redundancy situation” within JT as regards the type of work done by transmission engineers (that is, a state of affairs meeting the description in paragraph (b) of Article 2(1) of the 2003 Law, discussed below).


In recent years, with the rapid evolution of technology, the landscape for communications and telecommunications has been transformed. JT's business is as a provider of communications services. As to this the Tribunal recorded Mr Wood's case as being as follows:-

“9. The Applicant had been employed by the Respondent since 1979 and as a Transmission Engineer from 2001 until his dismissal in 2013. That role had initially been entitled Core Network Engineer, then Transmission and Access Engineer before Transmission Engineer. The role involved managing the operation and maintenance of...

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2 firm's commentaries
  • Channel Islands Employment Law Update: January 2022
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    • 1 February 2022
    ...authorities in the decision of the Royal Court in Voisin v Brown [2007] JLR 141, which was considered in JT (Jersey) Limited v Wood [2016] JCA 183. The Jersey Tribunal found that the respondent did undertake an investigation process in relation to the accident, including taking statements f......
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    • 1 February 2022
    ...authorities in the decision of the Royal Court in Voisin v Brown [2007] JLR 141, which was considered in JT (Jersey) Limited v Wood [2016] JCA 183. The Jersey Tribunal found that the respondent did undertake an investigation process in relation to the accident, including taking statements f......

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