England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK)

		Royal Courts of Justice Strand London WC2 Tuesday, 10th July 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal made by Mr Anthony Halliday in person. He makes the application on the basis of a skeleton argument which contains 14 pages of detailed points and on the grounds summarised in his notice of appeal dated 22nd March 2001. The decision Mr Halliday wishes to appeal is that of the Employment Tribunal at London South, following a hearing on 29th and 30th November 1999, in which Mr Halliday claimed unfair dismissal against the Roman Catholic Archdiocese of Southwark. The Tribunal unanimously decided that the application should be dismissed. Extended reasons for their decision were sent to the parties on 7th December 1999.
2. Mr Halliday then appealed to the Employment Appeal Tribunal. Like this Court, the jurisdiction of the Appeal Tribunal is confined to appeals on points of law. The Appeal Tribunal does not entertain appeals on points of fact and does not re-hear the whole case. The question for the Employment Appeal Tribunal was whether there was an error in law in the decision of the Employment Tribunal.
3. The appeal was heard on 5th March 2001. Judgment on behalf of the Tribunal was given by His Honour Judge Peter Clark. He said that the appeal by Mr Halliday was an attempt to re-argue the facts, and it was not their function on appeal to re-try the facts, but only to consider whether the Employment Tribunal has erred in law and in their judgment it has not and the appeal must be dismissed.
4. I pointed out to Mr Halliday that the position of the Court of Appeal is the same as the Appeal Tribunal, with the additional point that, in order to obtain permission to appeal, Mr Halliday has to satisfy the Court that the appeal has a real prospect of success. The question I have to address, among all the many points which Mr Halliday has made, is whether there is a real prospect of persuading the full Court that there was an error of law in the decision of the Employment Tribunal set out in the reasons of 7th December 1999.
5. The factual background to this unfortunate dispute reveals an unhappy state of affairs. Mr Halliday worked as Director of Music at St George's Roman Catholic Cathedral in Southwark from 1st May 1989 until the end of April 1999. During the last few years of his work there the cathedral administrator was Canon Cronin, who pointed out to Mr Halliday the financial difficulties of the cathedral and the need to cut costs in relation to the cathedral choir. In response to that, over a period Mr Halliday made suggestions, which were not accepted. He was dismissed.
6. Following his dismissal, he issued an application in the Employment Tribunal on 27th June 1999. At that stage he had legal representation by the well-known firm of solicitors Irwin Mitchell, who were instructed, I think, through his professional association. In the IT-1 he said he was claiming unfair and wrongful dismissal and breach of contract. He set out his details of work, namely 20 hours a week as part of his employment as Director of Cathedral Music. In box ten of the form, he indicated that what he was seeking was reinstatement, that is to carry on working in his old job as before. Mr Halliday has explained and I can well understand the reasons why, that it is no longer a viable remedy for this dispute and what he seeks now is compensation for having been unfairly dismissed.
7. He claimed in the details of his complaint that the financial reasons put forward by Canon Cronin did not justify the cathedral taking the action it did in attempting unilaterally to change his conditions and terms of work. He contended that this was an attempt to impose wide-ranging variations on his contract and to dismiss him when he failed to agree with them and that was unfair dismissal and breach of contract.
8. In the IT-3 the Archdiocese, which entered an appearance through Canon Cronin, took the preliminary point that Mr Halliday was not entitled to bring claims for unfair dismissal in the Employment Tribunal, because he was in fact a self-employed person who was used by the cathedral to provide music at the cathedral services, and that he had been invoiced on a sessional basis, being paid in full for work carried out and being responsible for his own tax and national insurance contributions. The IT-3 went on to state that, if they were wrong in the view that he was not entitled to bring a claim, the claim ought to be dismissed, because there was no breach of contract. He had been given the correct notice of termination. In answer to his claim for unfair dismissal the case was that dismissal was fair in the financial circumstances and the need to reduce costs. They contended that adequate consultation had taken place and that Mr Halliday be offered a suitable alternative place. The dismissal in those circumstances was fair.
9. That was the case that came before the Employment Tribunal. At the hearing, Mr Halliday was represented by counsel. He had the benefit of legal advice and representation. Evidence was given to the hearing by Canon Cronin and by a Mr Radford, the Honourary Cathedral Treasurer for the Archdiocese and Mr Halliday gave evidence on his own behalf. The tribunal identified the issues as, first, whether Mr Halliday was employed or an independent contractor; secondly, if he was an employee, it was agreed that he was dismissed; thirdly, what was the reason for his dismissal; and, fourthly, if it was for a potentially fair reason, was the dismissal fair.
10. The tribunal then set out the facts in detail. During the course of his submissions to the Court today, Mr Halliday has queried the statements which the tribunal regarded as proven facts. Mr Halliday made a general point that the chairman of the tribunal was biased, did not understand the facts of the case and selected facts for inclusion in the decision that conformed to his prejudices. He also made a complaint that the chairman had refused to allow him to call evidence on canon law in respect in particular of the matters dealt with in paragraph 9 of the Extended Reasons as to the self-supporting nature of the cathedral. In an additional bundle of documents, which he has put before the Court today, Mr Halliday has included a letter of 16th May 2000 from Dr Geoffrey King, Professor of Canon Law and Christian Ethics in the United Faculty of Theology in Melborne, Australia, giving his views on the relevant canon law position.
11. I pointed out to Mr Halliday that this evidence had not been before the tribunal and it is not the normal practice for courts of appeal to admit evidence that was not put before the fact-finding court or tribunal, if that evidence could have been obtained by the use of reasonable efforts for use at the hearing.
12. After setting out the background facts and summarising the submissions, the tribunal came to this decision: First, they decided in Mr Halliday's favour that he was qualified to bring a complaint of unfair dismissal to the tribunal, because they had no doubt that he was an employee. The case of the Archdiocese on that point was rejected. Unfortunately for Mr Halliday, the tribunal went on, however, to conclude that they were satisfied that the dismissal was fair. They identified the situation of the cathedral as a redundancy situation, namely the cessation of the requirement for a full-time musical director occupying the position that Mr Halliday did. In paragraph 36 they said this:

"To summarise we are satisfied that: (a) the requirement for a full time music director had ceased; (b) Mr Halliday had been consulted; (c) he had been offered the only other employment available.

37. Therefore we are satisfied that in the circumstances the Cathedral had acted reasonably in treating that redundancy as a sufficient reason for dismissing Mr Halliday."

13. For those reasons they dismissed his application.
14. Mr Halliday then appealed to the Employment Appeal Tribunal. There were two hearings there. The first was a preliminary hearing on 16th June 2000. The importance of that is in the judgment of Maurice Kay J given on behalf of the tribunal. At that stage Mr Halliday was represented by Miss Steyn under the Employment Law Advice Scheme in operation at the tribunal. The tribunal concluded that there was an arguable point which justified the case proceeding to a full hearing and, more important, they took the view that this was one of those exceptional cases in which the chairman's notes of evidence would be of assistance on the hearing of Mr Halliday's appeal. The chairman's notes of the evidence which the tribunal had were produced on 10th August 2000.
15. The hearing of the appeal in the Appeal Tribunal took place on 5th March. Again Mr Halliday was represented by Miss Steyn, this time instructed by Irwin Mitchell, the solicitors who had initially acted for him on his application before the Employment Tribunal. As Judge Peter Clarke in his judgment on behalf of the tribunal said the case concerned an unhappy episode which had culminated in the termination of Mr Halliday's appointment in the post of director of music which he had held for ten years.
16. The Employment Tribunal considered the submissions made on behalf of Mr Halliday, first, that the Employment Tribunal had reached a perverse conclusion that the termination carried out was unfair and, secondly, in reaching that conclusion, the tribunal failed to take into account certain relevant factors. They then considered the various points that Miss Steyn made, some of which Mr Halliday has repeated in his submissions today. They also considered another point taking by Miss Steyn that there was no redundancy because the alternative job offered and at one time accepted by Mr Halliday was in fact no different from his original full-time job, save for a reduction in pay and alteration of other conditions. The tribunal rejected that contention on the facts, just as they did the submission that there had not been fair consultation. The tribunal concluded in paragraph 22 the passage already quoted in this judgment.
17. Mr Halliday then issued an application for permission to appeal to this Court. His grounds of appeal are conveniently summarised in section 7 of the appeal notice. They were these: That the tribunal was wrong in law (1) to decide there was a redundancy situation when the respondent's increased expenditure on the choir by £8,000 whilst giving evidence that he needed to reduce expenditure by £5,000. There is a reference there to the chairman's notes of the evidence; (2) The tribunal were wrong in law in deciding that consultation took place when at each meeting the respondent imposed more stringent terms and demanded more work for reductions in salary; (3) the tribunal were wrong in law to decide the dismissal was fair when the new contract required (a) an increase in work for reduced salary, (b) onerous terms and conditions where no reasonable employer could be accepted; and (c) required the appellant to be subject to police checks under the Children Act, which he accepted, or that the Archbishop of Southwark and Canon Cronin reserved the right wilfully to give another priest, who was under a police caution, unsupervised access to children in the choir as deputy choirmaster, adviser, and employment appeal panel member. That contravened his employment and the provisions of the Children Act. The tribunal were wrong in law in relation to the decision that the dismissal was fair when the new contract required Mr Halliday to direct choir boys at concerts organised by the Canon and Archbishop's instruction which Mr Halliday considered were inappropriate concerts for the choir to attend.
18. Mr Halliday has amplified those grounds in a very detailed written submission which is 14 pages long and deals with every aspect of his case, in particular his dealings with Canon Cronin. He has explained why he is of the view that the tribunal were wrong to hold that there was a redundancy situation. He said in fact there was no diminution in the requirements for work to be done with the choir in his capacity as director of music. It was wrong, he says, for the tribunal to hold that consultation had taken place. He said that it was not a consultation, but simply meetings at which proposals were made to him. He repeated his complaints that the chairman was biased and had not given him a fair hearing, and had refused to allow him to call relevant evidence on canon law. He emphasised that proper consultation means more than just having meetings; there must be proper consideration of the suggestions which he had made in relation to his continued employment as director of music. He repeated his complaints about involvement with unsuitable priests and about the choir attending inappropriate concerts. He explained why he was not willing to sign the new form of contract for the appointment of a director of music and he also made allegations about the lawfulness of certain aspects of the tax and national insurance situation. He emphasied that he had not been offered satisfactory alternative employment. These points were reinforced by the bundle of additional documents running from 1-A to 11-A.
19. Mr Halliday also pointed out that he had not received any compensation in the form of a statutory redundancy payment which, according to a letter from the tribunal, would be a figure of £2,530, and that he has not received the sum of £3,500 which, according to a letter of 30th January 1999, the Archdiocese intended to pay to him at the expiration of his period of notice. It appears that the reasons why these sums have not been paid is because of the ongoing uncertainty as to the legal position caused by the continuation of these proceedings which started in July 1999 and are still going on in July 2001. If Mr Halliday is persisting in his contention that he has been unfairly dismissed, then it would be a matter, if he were right, for compensation for unfair dismissal rather than the payment of a statutory redundancy payment or the payment of a sum offered by the Archdiocese as the equivalent (or more) of the statutory redundancy payment to which he was entitled.
20. In my judgment, this appeal has no real prospect of success. Although I understand all the detailed criticisms which Mr Halliday has of the decision, they do not seem, any of them, to add up to an error of law on the part of the tribunal. The tribunal correctly considered the issues, the first being whether he was an employee. That is not an issue on this appeal. It was a matter resolved on Mr Halliday's favour. They then considered the next legal question, whether there was a redundancy situation. Whether there was a redundancy situation or not is a question of fact, not law. The tribunal were entitled on the facts found by them to conclude that this was a redundancy situation within the meaning of the statutory definition.
21. Having decided that there was a redundancy situation, the tribunal then had to consider the reason for dismissal and found that it was redundancy, and then to consider whether it was fair to dismiss Mr Halliday for that reason. They concluded that that was fair. The tribunal correctly directed themselves in accordance with section 139 of the Employment Rights Act 1996 which states that for the purposes of the Employment Rights Act an employee who is dismissed or taken to be dismissed if "the requirements of that business for employees to carry out work of a particular kind or employees to carry out work of a particular kind in a place where the employee was employed have ceased or diminished or are expected to cease or diminish.".
22. The tribunal also correctly directed themselves on the provisions of section 98 of the Employment Rights Act, which directs that, in determining whether a dismissal is fair or unfair, it is for the employer to show the reason or, if more than one, the principal reason for the dismissal and its reason for it in subsection (2) or some other substantial reason and if the reason falls within that subsection, if it is that the employee was redundant.
23. I agree with the judgment given by Judge Peter Clark in the Appeal Tribunal that this is an attempt by Mr Halliday to reargue his whole case, in particular seizing on detailed factual questions which have been fully dealt with by the Employment Tribunal in their decision. This appeal has no real prospect of succeeding. I would not be doing any favour to Mr Halliday to allow him to pursue an appeal which is going to fail. In the tribunals orders for costs are rarely made against the losing party. The common order is no order for costs. That is not the regime for costs in this Court. In this Court the normal order is that, if an appellant is unsuccessful on his appeal, he will be required to pay the costs of the respondent. In my view, the likelihood of the appeal succeeding is small and the almost inevitable result of giving permission is that Mr Halliday would be saddled with a substantial amount of costs incurred by the Archdiocese of Southwark in resisting this appeal.
24. Finally, I should mention that I hope the question of the redundancy payment payable to Mr Halliday will be shortly resolved. In their letter of 30th January 1999 the Archdiocese, acting through Canon Cronin, stated a clear intention to pay him the sum of £3,500 on the termination of his employment. It will now be for Mr Halliday to seek to have paid him the amount to which he is entitled. I have no reason to think that the Archdiocese has withdrawn the offer that was made in that letter.
(Application for permission to appeal refused)