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
		16th March 2004

1. LORD JUSTICE PETER GIBSON: The appellant, Wendy Comfort, appeals against the order made on 2nd July 2003 by the Employment Appeal Tribunal ("the EAT"), His Honour Judge Birtles presiding. Thereby the EAT dismissed the appellant's appeal against parts of the decision promulgated on 21st May 2002 of an Employment Tribunal ("ET") sitting in Cardiff. The appeal to this court is brought with the permission of Mummery LJ, granted after an oral hearing.
2. The appellant, who is 43 years old, has been employed throughout her working life by the respondent, the Lord Chancellor's Department. She was employed from 15th November 1976 to 26th April 2001 in the Court Service of the respondent. She became a Higher Executive Officer ("HEO") in October 1993. On 1st April 1997 she moved to the Group Manager's Office of the Cardiff Group of Courts, which was then distinct from the Swansea Group of Courts. She was employed as a Group Finance and Performance Officer. On 31st May 2000 Peter Risk, the respondent's Administrator for the Wales and Chester Circuit, announced that the Swansea and Cardiff Groups of Courts would merge in October 2000, so that there would be only one Group Manager's Office. That would have two HEOs in place of the total of three HEOs who were at the Swansea and Cardiff offices when they were separate.
3. Mr Risk, to his credit, decided that he would speak to every member of staff affected and ascertain what their preferences were. The appellant had not worked in the courts for some 10 years, but she told Mr Risk that her wish was to be appointed the Court Manager of Newport County Court. She claimed that there had been promises made to her that she would get that job. She stated that she did not want to work in the Cardiff Civil Justice Centre. In that centre there were three HEOs, but there was a question whether a fourth HEO's position was available there. At that time there was no vacancy for the Newport Court Manager's post.
4. There were then several discussions between the appellant and each of Mr Risk, Mr Pickett, then the respondent's Group Manager for the Cardiff office, and Mr McNally, then the respondent's Circuit Finance Officer. I will come shortly to what occurred at two meetings between the appellant and Mr Risk.
5. On 19th October 2000 the appellant had a meeting with Mr Risk, when she was given a letter proposing that she should temporarily transfer to Newport County Court with effect from 1st November to undergo three months' training in County Court procedures and systems and then go to Pontypridd to shadow the Court Manager there. She was told that during March 2001 Mr Risk would decide what post she would take up from 1st April.
6. The appellant invoked the respondent's grievance procedures but her grievance was dismissed. On 15th December 2000 she presented an originating application seeking a declaration of redundancy. Those are not the proceedings the subject of the present appeal. Her solicitors also wrote that day to Mr Ian McGee, the Chief Executive of the Court Service, complaining that she had been "shamefully treated" since the decision to reorganise the circuit.
7. On 26th April 2001 she resigned. On 8th June 2001 she lodged an originating application settled by counsel, Mr Nicholas Smith. She complained of disability discrimination, unfair constructive dismissal and breach of contract. In her originating application she set out in some detail the various events which caused her to conclude that she had been constructively dismissed. Those events included what she claimed was said to her by Mr Risk at two meetings the date of which she gave as 18th September and 19th October 2000.
8. The hearing of her complaint was fixed for three days in Cardiff and at the hearing on 4th to 6th February 2002, she was represented by Mr Smith and the respondent by Mr Philip Coppel. Unfortunately, the hearing was not completed in those three days and there had to be an adjournment to 29th April 2002. At the adjourned hearing she was represented by a retired solicitor, Mr Panting. He applied for the ET to discharge itself on the ground of bias. That application was rejected. By its decision the ET explained that rejection. It also decided that: (1) the appellant had a disability (depression) for the purposes of the Disability Discrimination Act 1995; (2) the respondent did not unlawfully discriminate against the appellant on the ground of her disability; (3) she was not constructively dismissed and therefore was not unfairly dismissed by the respondent; and (4) her position with the respondent was not redundant and there was no breach of contract by the respondent.
9. The findings of the Tribunal material to this appeal were expressed in paragraph 18:

"CONSTRUCTIVE DISMISSAL

(1) As stated in evidence by Mr Risk and other witnesses for the respondent and which was not in issue between the parties, during the early months of 2000 and following discussions with the Presiding Judges of the circuit, a decision was made to merge the Swansea and Cardiff Groups of Courts. That decisions was communicated to senior staff by letter dated 31 May 2000 ...

(2) By that time, the applicant had been away from working in the courts for ten years and was then currently Group Finance Officer in the Cardiff Group Manager's Office. On being asked, she expressed her wish to be appointed as Court Manager of Newport County Court and stated that she did not want to work in the Cardiff Civil Justice Centre. However, the position in Newport County Court was not vacant and the only vacancy was in the Cardiff Civil Justice Centre. For the post to become vacant in Newport for Miss Comfort, it would have meant that the post holder in Newport would have had to have been transferred to Pontypridd and the post holder there transferred to Cardiff. The applicant agreed that to do that would not have been reasonable.

(3) Furthermore, because of considerable changes in the operations of the courts during the ten years that Miss Comfort had not been working in the Courts, it was necessary for her to undergo three months' training and two months' shadowing a Court Manager before the applicant could be appointed as a Court Manager. The applicant confirmed that she needed training and that shadowing a Court Manager was the correct course before a person goes into such a post. Indeed, under cross-examination, the applicant said that it would have taken months of retraining for her to be comfortable to cover the changes in the court's operations and procedures and without real training, it could create real difficulties for a Court Manager's post. She also agreed that there could not have been better training for a Court Manager's post in Newport than court training in Newport County Court and yet she refused that because, according to her, she would not have been training for Newport. According to the respondent's witness, Mrs Thomas, training was 'a golden opportunity to get to grips with the new procedures after being put out of the courts for ten years'. The applicant also accepted that shadowing would have been for a prospective Court Manager's position and the correlation of same to having been out of the system for ten years.

(4) The circumstances of the three other senior persons, with whom the applicant compared herself, Mrs Janet Jones, Mr Richard Skevington and Ms Susan Lewis were not comparable. The applicant in evidence had agreed that either they had not been out of the court section for as long as she had or had more experience than her.

(5) Miss Comfort admitted that she was never told that there was no job for her or that she would not get Newport Court Manager's job. Actually, the applicant's own witness, Mrs Janet Jones informed the tribunal that shadowing was to get to know the Court Manager's role and the purpose was relative to applying for and taking up that position.

(6) Newport County Court was the second largest court to Cardiff Civil Justice Centre in South East Wales and the applicant, if appointed to the Court Manager's post there, would have been responsible for twenty-five to twenty-eight staff.

(7) The respondent, quite understandably and responsibly, was not prepared to give Miss Comfort an assurance of the Court Manager's position in Newport because it was occupied at the time.

(8) The tribunal accepts, as stated by Mr McNally in evidence, that from June to the end of August 2000, Mr Risk and Mr Pickett were both 'bending over backwards' to try to give the applicant a post that she wanted and that by March or April 2001, a post would have become vacant. Quite apart from any other post, Mr Risk confirmed that right up to 28 April 2001, if the applicant had said that she would accept Cardiff, he would have given her that position rather than her staying off work. Relative to that, Miss Comfort agreed that if there were no other jobs available, she would have gone to Cardiff and that she could not dictate that she went to a post at a particular time.

(9) The applicant's contention that she did not consider that there was a vacant post in Cardiff for her is not accepted because Mr Risk expressly stated that first, there was a vacancy there and secondly, in any case, in his position then, as the respondent's Administrator for the Wales and Chester circuit, he could have created posts up to Span 8, the former Principal Officer grade.

(10) The respondent, through its senior management personnel, did its very utmost to resolve the applicant's position despite her only being prepared to consider the Newport Court Manager's post and the practical impossibility, for the respondent, to concede to that because it was not vacant.

(11) Therefore, the respondent did not commit a serious breach of contract entitling the applicant to resign and thereafter to assert that she had been constructively dismissed. In the circumstances then prevailing, the respondent throughout behaved reasonably. As a result, the unanimous decision of the tribunal is that Miss Comfort was not constructively dismissed and not unfairly dismissed by the respondent from her employment.

BREACH OF CONTRACT

(1) Miss Comfort said in evidence that if she had been told to go to Cardiff in a role, she would not have been redundant. The explanation for that was that there was a mobility clause in her contract of employment.

(2) The reason why she was not instructed to take up a post in the Cardiff Civil Justice Centre was because the respondent was doing its utmost to meet the applicant's ambition for a Court Manager's post in accordance with the undertaking given to the respondent's Whitley Council Trade Union Side ...

(3) As Mr McNally explained in evidence, because of the mobility clause, there was no redundancy even though her previous post ceased to exist and thus, at the beginning of September 2000, she was not surplus to requirements.

(4) Additionally, Mr Risk was confident that there was a post for every member of staff and the Courts' policy was to avoid redundancies in any event.

(5) In those circumstances, the applicant's position with the respondent was not redundant in accordance with Section 139(1) of the 1996 Act and therefore, it follows that there was no breach of contract by the respondent."

10. The ET did not expressly deal with one factual issue between the parties. The appellant had met Mr Risk at his suggestion in September over lunch and again on 19th October 2000. A dispute has arisen as to what was said by Mr Risk to her at those meetings. Mr Risk described the meetings in a witness statement prepared for the hearing by reference to notes which he said he had made of those meetings. In his oral evidence, he said that he had made handwritten notes after lunch following each meeting and that those notes had been typed by his secretary. The typed notes were disclosed by the respondent. They were in the same format. The notes for what was dated 28th September 2000 had five bullet point paragraphs, of which the fifth was:

"I said I would discuss the options with the Group Managers and then arrange to see her again. However, she must recognise that the only post we had vacant at the time was Cardiff Civil Justice Centre. It would take some time to create a Court Manager post, although this was not out of the question."

The notes for 19th October 2000 contained four bullet point paragraphs, of which the third was:

"I confirmed that there would be a Court Manager post for her at the end of the training period, but out of fairness to the present post holders, I could not confirm which court it would be at this stage."

11. The appellant was very suspicious of the authenticity of the notes. She was certain that the first meeting was on 18th September, as she had written to Mr Risk on 6th October referring to her meeting with him on 18th September. Further, what was recorded in the two paragraphs to which I have referred was quite contrary to her own recollection of what Mr Risk had said. She thought that the notes may have been prepared because of what had occurred on 15th December 2000 when an originating application had been presented and the letter to Mr McGee had been written by her solicitors.
12. Her counsel, Mr Smith, cross-examined Mr Risk on the authenticity of the notes and put to Mr Risk that the notes were concoctions. Mr Risk denied that.
13. During the lengthy adjournment after the third day of the hearing, the appellant obtained an order for the disclosure by the respondent of the statistics file associated with the two notes. The file appears to show that both notes were created the same day, not in September or October 2000 but on 3rd January 2001. On the face of it, that did not accord with Mr Risk's evidence. The appellant obtained a witness order for Mr Risk's personal assistant, Miss Donna Mulhern, to give evidence.
14. From the notes of evidence of Mr Coppel's instructing solicitor, the Treasury Solicitor, it is apparent that Miss Mulhern confirmed that she had typed the notes, that she assumed that 3rd January 2001 was the date the documents were created, and that she typed the notes on that day together, but that she had no independent recollection of when the documents were prepared.
15. Mr Panting then said to the ET that he was perturbed and raised the question of Mr Risk being recalled to give evidence. The Chairman referred to "costs implications". One might have expected that the respondent would have been anxious to clear its very senior administrator of a serious imputation against him, supported as it was by the discrepancy prima facie disclosed between Mr Risk's earlier evidence and the evidence from the file and Miss Mulhern's evidence, or that the respondent would have sought to provide an explanation of that apparent discrepancy. But surprisingly not only was no explanation proffered, but Mr Coppel, although his client is the Crown, discouraged any application for Mr Risk to be recalled by saying that costs would be sought vigorously. In the result, no application was made by the appellant for Mr Risk's recall.
16. The ET's extended reasons are wholly silent as to the differences between the appellant and Mr Risk as to what occurred at the September and October meetings, nor is any mention made of the notes of the meetings or their authenticity. It would appear likely, however, that the ET accepted Mr Risk's account, though no express comment is made on the relative credibility of the witnesses, still less as to why the evidence of one rather than the other was accepted.
17. The appellant appealed, preparing it seems the notice of appeal in person. One of the grounds of appeal was bias. Another was that the ET failed to give any weight whatsoever to the fact that the respondent's main witness, Mr Risk, had "falsified documents and given perjured evidence". She accused the ET of failing to act in not recalling Mr Risk and of being totally perverse in not making any reference to the same in its decision. Details were given of the alleged falsification of documents, being the notes.
18. There was a preliminary hearing by the EAT, His Honour Judge Altman presiding, of the appeal on 20th November 2002. Of the existing grounds of appeal the EAT only allowed the appeal to go ahead on the single ground that the decision of the ET in relation to the evidence of Mr Risk was perverse. The EAT ordered production of the Chairman's notes relating to Mr Risk's evidence. The EAT also allowed the appellant to amend the notice of appeal to allege a further ground, that, in view of all the evidence before it, it was not open to the ET to find other than that the appellant had been dismissed by reason of redundancy pursuant to section 139(1) of the Employment Rights Act 1996. Counsel, Mr Stephen Whale, drafted the further ground on 25th November 2002.
19. On 29th May 2003 the full hearing of the appeal took place before the EAT. At that hearing the appellant was represented by leading and junior counsel appearing pro bono, Mr Ian Gatt QC and Miss Naomi Cunningham, and the respondent by Mr Coppel. At the start of the EAT hearing, Mr Gatt sought to re-amend the notice of appeal by replacing the amendment drafted by Mr Whale with a ground that the ET had erred in assuming that the existence of a mobility clause in the appellant's contract of employment must necessarily defeat her assertion that her post was redundant, and that she had a contractual right to the implementation of the respondent's redundancy procedures. That application was refused by the EAT for reasons given by it in a separate judgment.
20. On 2nd July 2003 the EAT in a reserved judgment dismissed the appeal. It referred to Mr Gatt's argument on the first ground as being that the ET failed to explain to the parties why they had won or lost. The EAT said that a careful reading of the documentation before the ET and the notes of evidence made clear that the appellant knew of the existence of a fourth HEO post in Cardiff. It said that the ET was entitled to accept the evidence of the respondent's witnesses that the respondent was trying to accommodate the appellant's desire to obtain a job as a Court Manager, preferably at Newport. The EAT rejected Mr Gatt's submission that the ET or the respondent should have recalled Mr Risk. On the second ground of appeal, the EAT said that there was ample material before the ET which enabled it to find that there was no redundancy situation.
21. The appellant then sought to appeal to this court. The grounds of appeal are: (1) the ET gave insufficient reasons in dealing with the conflict on the evidence of Mr Risk and the appellant as to their meetings in September and October 2000; (2) the ET failed to recall Mr Risk; (3) the ET wrongly assumed that there could be no question of a contractual redundancy entitlement unless there was a redundancy as defined in section 139, and erred in failing to engage at all with the errors of law complained of by the appellant. The appellant seeks a rehearing before the ET.
22. Mummery LJ granted permission to appeal without going into the particular grounds for the appeal in any detail in his judgment. In the event it has not been necessary for this court to hear argument on more than the first ground of appeal because it has been accepted by both sides that if that ground of appeal succeeds, there will have to be a remitter to a differently constituted ET to rehear the whole case except for the disability discrimination claim.
23. On the first ground Mr Gatt submits that the ET commits an error of law if it fails to deal with an important dispute of fact. He relies on the remarks of Sedley LJ, giving the judgment of this court (consisting of himself, Schiemann LJ and Blackburne J) in Anya v University of Oxford [2001] ICR 847 at page 860, paragraph 25:

"... it is the job of the tribunal of first instance not simply to set out the relevant evidential issues ... but to follow them through to a reasoned conclusion except to the extent that they become otiose; and if they do become otiose, the tribunal needs to say why."

24. In the present case, Mr Gatt complains the ET failed to set out the evidential issues between the parties as to the content of the two meetings, or to follow it through to a reasoned conclusion. If the ET had formed the view that the issues had become otiose, it neither stated nor explained that view.
25. Mr Coppel points out that the sufficiency of a tribunal's reasoning in relation to any particular matter is in large part governed by the importance of the matter to the decision reached by the tribunal, and that a tribunal is not obliged to make findings on a matter if the decision does not turn, or materially depend, on that matter. He argued that the differences between Mr Risk's and the appellant's evidence were not material to the basis on which the ET reached its decision that the appellant had not been constructively dismissed. He said that the September and October meetings were only the concluding elements to the events starting at the beginning of June on which the appellant based her claim of constructive dismissal. He argued that the ET had considered that evidence without what had occurred in September and October and had reached a conclusion that the appellant's claim was unsustainable. He relied on the efforts made by the respondent to accommodate the appellant's wishes. He drew attention to the way in which the appellant presented her case to the ET and said that the ET had explained itself satisfactorily in accepting the respondent's case.
26. I accept that it is not every issue that the ET must deal with in performing its irreducible duty of explaining to the parties why they have won or lost. In High Table Ltd v Horst [1998] ICR 409 at page 420 (in a judgment with which Evans and Hobhouse LJJ agreed), I said that whilst an ET must consider all that is relevant, it need only deal with the points seen to be in controversy relating to the statutory issues raised by the case, and then only with the principal important controversial points.
27. In the present case the principal important controversial points to my mind clearly include the dispute over what was said at the September and October meetings, the resolution of which in part depends on the authenticity of Mr Risk's allegedly contemporaneous notes of those meetings. True it is that the appellant complained in some detail of what had occurred between the beginning of June and mid-September, as can be seen from paragraphs 5 to 13 of the details of her complaint in her originating application. But she then said this:

"14. Despite being signed off work with anxiety and depression for a period of four weeks from the 13th September the Applicant met Mr Risk on the 18th September. The Applicant again explained her preferred option. The Applicant was informed for the first time that the respondents considered that she did not have sufficient County Court experience. At the conclusion of the meeting the Applicant was offered 4 months training in Pontypridd. There was no offer of employment at the end of the training period. Mr Risk also mentioned that another employee Diana Edwards at Bridgend County Court was also looking to return to Newport. Mrs Edwards has previously been mentioned in an earlier conversation with Mr Pickett concerning the post at Newport but Mr Pickett indicated that although Mrs Edwards has more experience, in his view he would seek to place the Applicant in the role.

15. By a letter dated 2nd October 2000 the Applicant was invited to attend a further meeting with Mr Risk in the week commencing 16th October 2000. The Applicant's health had deteriorated and she had been signed off sick for a further 28 days. Despite this Mr Risk sought to patronise the Applicant by saying 'it would be better if we had good argument because (she) would feel better for it'. This had the effective of increasing her anxiety and depression.

16. At that meeting on the 19th October the Applicant was given a letter proposing a 5 month training starting on the 1st November. The Applicant, in expressing her disappointment at the failure to offer an appointment at the end of proposed training, was informed that there was no job available in any event. The Applicant questioned Mr Risk about the proposed 4th HEO post at the CJC Cardiff, Mr Risk replies that he was not aware of any 4th HEO post in Cardiff. This confirmed her earlier concerns about the role.

17. In the circumstances the Applicant was informed that there was no suitable role for her to perform or that there would be a likelihood of such a role in the near future. Further the training that had been offered was demeaning and humiliating to the Applicant as it involved training with staff at a much lower level than the Applicant and did not have any bearing on the competencies of a Court Manager. The Applicant avers that she had been marginalised. Further no regard had been paid to her current medical condition."

Her allegations were supported by her witness statement.

28. If it be the case that on 19th October 2000 she was informed that at the end of the proposed training period there was no job available in any event and that Mr Risk said that he was not aware of any fourth HEO post in Cardiff, that would plainly be of great materiality to whether she was constructively dismissed. It is idle to argue, as Mr Coppel has done, that it was for Mr Pickett to decide who should go where and that everything had been resolved before the two meetings, when Mr Risk, the very top official of the respondent in the circuit, had chosen to become involved with the appellant's future by calling for and holding the two meetings with her in September and October.
29. The differences in the evidence of Mr Risk and the appellant over the two meetings was likely to have important consequences for the ET's decision. The credibility of each witness was at stake. Indeed, Mr Coppel had cross-examined the appellant on her failure to keep notes of the meetings. The Chairman had, according to the appellant, complimented Mr Risk for his efficiency in making notes and committing them to the computer very promptly. The Chairman commented on that allegation:

"Any remark by me to Mr Risk about his efficiency was merely a reference to him having stated that he had committed his handwritten notes to the computer within ten minutes of his return to his office. Reference to the Applicant not having taken notes of the meetings was a matter of evidence because Miss Comfort was in considerable dispute with Mr Risk's evidence regarding those meetings."

30. The Chairman showed himself to be well aware of that considerable factual dispute. How could he not be? In two of the six paragraphs of the respondent's notice of appeal, reference had been made by the respondent to both the meetings. Mr Panting in his oral submissions is recorded as describing the notes as "the nub of her case". Indeed, he went so far as to accuse Mr Risk of a deliberate attempt to pervert the course of justice.
31. I can well understand why the ET found it uncomfortable to deal with so serious an accusation against a very senior civil servant, but I do not see how the ET could duck that question or ignore the factual dispute. What mattered was what had been said by Mr Risk to the appellant affecting her future, whatever may have been said by managers to each other about that future. It was plain that there was a sharp conflict of evidence as to what was said at those meetings in September and October 2000, and it is to be noted that no later event is relied on by the appellant in her originating application for her claim of constructive dismissal.
32. With all respect to the EAT in arriving at a different conclusion, in the circumstances it seems to me plain that the ET erred in coming to its decision on constructive dismissal without making findings on the evidential dispute about the meetings and without explaining why it left that factual dispute out of account. That failure on so important a matter in controversy constitutes, in my judgment, an error of law. Deeply though I regret further delays before a final conclusion is reached in what is now a stale case, I can see no escape from having to order a remitter.
33. For these reasons, I would allow the appeal, set aside the order of the EAT and the decision of the ET on constructive dismissal and redundancy and remit the case to a differently constituted ET. I would direct that the rehearing be heard with expedition.
34. LORD JUSTICE TUCKEY: I agree that the appeal should be allowed for the reasons given by my Lord and with the order which he proposes should be made as a result of that decision.
35. SIR MARTIN NOURSE: I also agree.

ORDER: Appeal allowed; order of the Employment Appeal Tribunal and the decision of the Employment Tribunal on constructive dismissal and redundancy set aside and the case remitted to a differently constituted Employment Tribunal; direction that the rehearing be heard with expedition; the respondent to pay the appellant's costs assessed in the sum of £523.83.

(Order not part of approved judgment)