Scottish Court of Session Decisions

This morning I allowed the pleadings in this action to be amended in terms of the pursuer's Minute of Amendment and the defenders' Answers. The defenders opposed the motion for amendment only to the extent of seeking exclusion of the proposed averments directed to the treatment of Ms Janowska. This Opinion records briefly my reasons for allowing amendment without such exclusion.

When the case was debated before me in July 1998 the pursuer did not at that stage advance a case that the particular manner and circumstances in which he came to be identified or selected for redundancy were inconsistent with the terms of his contract. He now, by this amendment, seeks to make such a case, relying for that purpose on the implied term of mutual trust and confidence.

It is not disputed that such a term was implied in the pursuer's contract. The issue is whether it was in the particular circumstances breached. The pursuer, in his Minute of Amendment, asserts that the reason given by the defenders for selecting him for redundancy, namely his allegedly poor work record prior to March 1994, was false, the true reason for such selection being earlier manifestations of the same health problem which ultimately disabled him from working. He accordingly asserts that his selection for redundancy, while on long term sickness leave (and prior to the exhaustion of the full contractual period for such leave) was in fact by reason of his sickness. He further asserts that the defenders' intention in selecting him for redundancy was to avoid him receiving sickness and other benefits. The defenders accept that those assertions are relevant for inquiry.

The defenders, however, contend that assertions made by the pursuer earlier in the Minute of Amendment are irrelevant and should be excluded from probation. Those relate to a Ms Janowska, a fellow employee who was also, at the time of the relevant redundancy selections, absent from work on long term sickness leave. The pursuer asserts that her contract of employment was in similar terms to those of the pursuer and incorporated like provisions in relation to sickness and other benefits. She was, however, permitted by the defenders to remain on long term sickness leave for the full contractual period and thereafter to retire with the retirement provision applicable to a person who had been in receipt of sickness benefit for the full period. The pursuer further asserts - "There was no objective justification for the defenders treating the pursuer differently from Ms Janowska in this way. Their failure to treat the pursuer in the same manner as they treated Ms Janowska points to a lack of good faith on the part of the defenders in their dealings with the pursuer, contrary to their obligations to maintain mutual trust and fidelity within their employment relationship with the pursuer".

The submission made by Mr McCreadie for the defenders was, put shortly, that the assertions made in respect of the different treatment of Ms Janowska were discrete and separate from those contained in the rest of the Minute. If the assertions of different treatment were examined, it was plain, he argued, that they could not, if proved, amount to more than that the employers acted unreasonably, proof of which would not constitute a breach of contract and in particular a breach of the implied term of mutual trust and confidence. If the assertions were not intended to be discrete and separate, it was impossible to see how proof of them could establish the case advanced by the pursuer in the rest of his Minute.

Mr O'Neill for the pursuer submitted that the assertions in relation to different treatment as between the two employees were not intended as a discrete and separate chapter but as part of a single case of breach of the implied term of mutual trust and confidence, the decision to select the pursuer for redundancy being capricious and in bad faith.

In my view it cannot be said that the pursuer's assertions of different treatment between him and Ms Janowska are so plainly irrelevant that the pursuer should be denied the opportunity of proving them if he can. Although the formulation adopted in the Minute of Amendment gives some support to the contention that those assertions are intended to be discrete from the other assertions in the Minute, I accept that on a fair reading a single case is in fact being made out. Mr O'Neill moreover disavowed any intention to advance a case that there had been a breach of contract either by reason simply of choosing one employee over another or by reason of conduct which was unreasonable; the pursuer's case, he stated, was that in the whole circumstances his selection for redundancy had been made by the defenders in bad faith and contrary to their contractual obligation of mutual trust and confidence.

Such a case will, in my view, inevitably involve an examination at proof of the reason for that selection. The pursuer puts in issue whether the reason given for his selection was or was not genuine.

In Hadjioannoui v Coral Casinos Limited [1981] IRLR 352 the Employment Appeal Tribunal considered, in the context of a claim of unfair dismissal, the use of evidence of disparity of treatment among employees. They accepted an analysis by counsel for the employers that one of the limited circumstances in which such evidence could be relevant was where it supported an inference that the purported reason was not the real or genuine reason for a dismissal (paras.24-5). The Employment Appeal Tribunal continued (at para.25) - "We should add, however, as counsel has urged upon us, that Industrial Tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument".

That approach may be applicable here. A case of unexplained and unintelligible disparity in treatment in essentially identical circumstances may, if made out, be an adminicle of evidence bearing on the genuineness of the reason given for the pursuer's selection. The observation that there are not many cases in which the evidence in the end adequately supports the argument will also be noted. Notwithstanding that caution, it cannot be said at this stage that in the present case the allegation of disparity is so plainly irrelevant that an opportunity to prove it should be denied. Indeed, an examination of the circumstances of Ms Janowska's case (which appears to share at least some important features with that of the pursuer) may in the end support the defenders' contentions. It may point genuine differences between the cases of those two employees.

Act: O'Neill

Balfour & Manson

Alt: McCreadie

Mackay Simon

14 January 1999

CA4_98