England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Wednesday 30th January, 2002

1. LORD JUSTICE KEENE: In this matter the applicant seeks permission to appeal against the decision of the Employment Appeal Tribunal sent to the parties on 14th December 2001.
2. Miss Simpson was employed by the Kensington Housing Trust as a Tenant Services Officer, one of a team of six working beneath an Area Housing Manager. However, the respondent decided that there needed to be a reorganisation and, as a result of that, the applicant's post would disappear. The new structure would have a supervisor known as the Senior Customer Services Officer ("SCSO"), beneath whom there would be three Customer Service Officers ("CSOs") and one Customer Services Support Officer ("CSSO"). The applicant was on maternity leave at the time when this reorganisation was being discussed, but it seems that she was invited to attend a meeting about it on 16th May 1999. In effect the old Tenant Services Officers posts, of which Miss Simpson held one, a scale 5 job, were being downgraded during this reorganisation to CSOs, which were scale 4. She had the prospect of automatic deployment to such a post. Alternatively, according to the Employment Tribunal, she was told that she could apply for the post of Senior Customer Services Officer or she could take voluntary redundancy.
3. She did not apply for the SCSO post by the due date. She decided that she was not prepared to be downgraded to a CSO and so she resigned and brought proceedings before an Employment Tribunal. The Tribunal found that she had indeed been constructively dismissed and that the dismissal was, especially because of the lack of consultation, unfair. It also found that there had been unlawful sex discrimination. However, it rejected a claim by her of race discrimination. At a later remedies hearing it concluded that the SCSO post was a promotion rather than suitable alternative employment, and that the respondent could not be criticised for not automatically deploying her into that position. There was also a grade 6 post of Housing Officer available, subject to application and interview, and the Tribunal found that Miss Simpson was aware of this but that she did not put herself forward for it.
4. In the end, the Tribunal awarded her £7,002, including £1,000 for injury to feelings because of the sex discrimination.
5. Before the Employment Appeal Tribunal Miss Simpson argued that the Tribunal had failed to consider section 77 of the Employment Rights Act 1996, which deals with the entitlement of an employee on maternity leave to be offered a "suitable available vacancy", if one exists when a redundancy situation arises. In particular, she contended that the Housing Officer post would have been such a suitable position.
6. The Employment Appeal Tribunal examined the correspondence and the Tribunal's decision, and it said this at paragraph 14 of its judgment:

"The situation seems to us perfectly clear, namely that the Tribunal were never asked to determine that Housing Officer was a suitable alternative post. There was no evidence to suggest that it was. The only reference dealing with that question of suitability at all is at page 31 in the ET1, where Miss Simpson has written:

`However confirmation was written to Unison, that KHT did not deem this post to be suitable alternative employment.'

In those circumstances, it seems to us inevitable that the Tribunal should have concluded, as they did, firstly that the SCSO post was not a suitable alternative post, and secondly, that the more junior stage 4 post was not a suitable post as an alternative. The decision as to Miss Simpson's dismissal flowed from those findings. The Tribunal were right on those findings not to carry on and consider Section 77 and Section 99 because there was no evidence, nor any suggestion, of there being a suitable alternative post in the form of the Housing Officer post. Had the Tribunal done so, since the post was at a higher level, it seems inevitable they would have concluded that it was not a suitable post, but the situation never arose because Miss Simpson was not, at that stage, seeking to say that it was a suitable alternative post. She never applied for it, and we have no doubt that the suggestion made to us was a makeweight which came in after the event."

7. Miss Simpson now argues that there was a suitable vacancy which should have been offered to her, and indeed could have been offered to her, and that it was racially and sexually discriminatory for the respondent not to have done so. She argues that section 77 was not specifically quoted in the Employment Appeal Tribunal decision, any more than it was in the Employment Tribunal decision, even though it had been raised in the proceedings. She particularly emphasises that in her submission she should not have been asked to apply for the job of Housing Officer, but it should have been offered to her directly. Miss Simpson accepts that that was a higher grade post than her old job, but she points out that others were redeployed in that sort of a way without having to attend an interview. Consequently, she says, there was race and indeed sex discrimination rising here.
8. I have to bear in mind that the Employment Tribunal found as a fact that the SCSO post involved a promotion, so that it was not a post in respect of which she had any right to be automatically redeployed. She could apply but did not do so. The Tribunal also found that she was aware of the post of Housing Officer, which, as she recognises, was again a higher grade post than the one she had been occupying until that time, but there is no dispute that she did not apply for that. Again that post, in my judgment, could not be seen as such as being a "suitable" alternative post, given that it was again a promotion. Those particular findings of fact are not ones with which the Court of Appeal could possibly interfere. That being so, I can see no role for section 77, as the Employment Appeal Tribunal itself was pointing out.
9. So far as the absence of any express quotation of section 77 is concerned, the Employment Appeal Tribunal was clearly well aware of section 77 and its provisions because it referred to it. Moreover, it is clear that the Employment Tribunal was aware of that section. It did not need to refer expressly to it, so long as it had it in mind. But for the reasons which the Employment Appeal Tribunal have emphasised, section 77 did not in fact come into play. The findings of fact meant, as I have already indicated, that there was no role for section 77 in this situation.
10. The point which is made by Miss Simpson today that others were redeployed in such a way that they in effect were promoted without having to attend an interview, was something which the Employment Tribunal itself gave attention to at some length. At paragraph 29 of its decision it said this:

"The Tribunal accepted on the evidence that the positions of Steve Kellaher, Neil Mawson, Barbara Henderson, Geoffrey Murray, Gwynneth Allen and Nick Lloyd were substantially different. Their background had not been one of redundancy but rather of re-evaluation and re-titling. With reference to Adam Burdon's position, it is true that he acquired additional responsibilities without application or interview, but those additional responsibilities consisted essentially of line management for one person only. The SCSO position required line management of four people and it was primarily a supervisory and managerial role. The Tribunal accepted that there was no less favourable treatment because Mr Burdon's position was substantially comparable whereas it appeared to the Tribunal to be reasonable to require interview for the SCSO which had managerial responsibility as it raison d'être."

11. Those findings are findings of fact, and the Employment Tribunal is the tribunal which has the function of arriving at findings of fact. The Court of Appeal is not essentially a fact-finding tribunal. It has to deal with issues of law based upon the findings of fact which have been made by the court or tribunal below. The role of the Court of Appeal is therefore very limited so far as findings of fact are concerned. The point that was being made there by the Employment Tribunal would, I am afraid, equally apply to the arguments being raised about the even more senior job of Housing Officer.
12. In all those circumstances, it seems to me that there is no prospect of an appeal successfully being brought on the grounds that the Tribunal went wrong in terms of its conclusions on racial discrimination; or equally that it could now be argued successfully that it was racially or sexually discriminatory for Miss Simpson to have to apply if she wanted either of these posts of Housing Officer or SCSO.
13. In those circumstances, I cannot see that either of the arguments advanced today have any real prospect of success. It would not be a kindness to Miss Simpson to grant her permission to appeal in that situation, because all that would happen is that she would end up no doubt incurring costs as well as incurring expenditure of time on her part when there is no prospect of this appeal succeeding.
14. It follows, I am afraid, that I have to refuse permission to appeal against the Employment Appeal Tribunal's decision. I am very grateful, nonetheless, for the very succinct and courteous way that Miss Simpson and her MacKenzie Friend have dealt with this matter today.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)