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Cite as: [1992] UKEAT 30_91_610, [1992] UKEAT 30_91_0610

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BAILII case number: [1992] UKEAT 30_91_0610

Appeal No. EAT/30/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6th October 1992

Before

THE HONOURABLE JUSTICE WOOD MC (P)

MR T MARSLAND

MR J A SCOULLER

MS M E GETHING APPELLANT

CORNWALL COUNTY COUNCIL RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR R MINCOFF

Solicitor

Mr Graham Clayton

Solicitor

Hamilton House

Mabledon Place

London

WC1H 9BD

For the Respondents MR G MEREDITH

(Of Counsel)

Cornwall County Council

Chief Executive & Clerk's Department

County Hall

Truro

Cornwall

TR1 3AY

MR JUSTICE WOOD (PRESIDENT): Mrs Gething was the Applicant before an Industrial Tribunal sitting at Truro under the Chairmanship of Mr Walton. Her application was heard on the 6th, 7th and 8th November 1990 and was dismissed. She alleged unfair dismissal by her employers, the Cornwall County Council. She was a teacher, she had been employed by the County Council from the 1st September 1977 to the 31st December 1989.

This is a sad case in many ways, because it has shown us a history of problems and difficulties which everyone, both sides, have been trying to cope with and ultimately there had to be an end to the problems. Over many years, at the Industrial Tribunal, and today before us, in the able hands of Mr Mincoff, the Solicitor, the interests of Mrs Gething have been handled by the National Union of Teachers; she was, what we call a Shop Steward and representative of the Trade Union.

The Tribunal had the peculiar and particular advantage over anyone else looking at these papers of having seen and heard the parties. On the one hand, Mrs Gething, and on the other, the members of the Local Education Authority of the County Council, who had, over the years been dealing with her career and the problems which she had placed before them. The history of this matter is of importance, although background, and is clearly set out in the earlier part of the Decision; a Decision which, if we may respectfully say so, is admirable in its clarity and succinctness of approach.

From 1977 Mrs Gething started work at St Michael's Junior School at Helston. She had in fact attended a course in the middle of that period from 1977 to 1984, but her employment there was virtually consecutive over those years. There were problems, with her Headmaster even in the early years, but any major differences were overcome. However, in 1983 the Junior and Infant Schools were amalgamated and her Headmaster retired. The Head of the Infant's School was promoted to be in charge of both schools. It was at that time that Mrs Gething was appointed Shop Steward and problems arose soon thereafter between Mrs Gething and the new Head. It was concerning supervision of school meals and other matters, and a report was made upon her to the Board of Governors to which she took grave exception. As a result of the problems which arose the decision was made for her to be redeployed. The Tribunal find that there was some indication even as early as 1983 that her health was not at its best. So that the background is there and the necessity for redeployment due to problems between the Head of the School and Mrs Gething.

At the end of 1983, and the beginning of 1984, Mrs Gething was away ill, for some 2 months, that was the first of a number of periods of illness. After her return, at about Easter 1984, she was deployed to the Basset Centre, Camborne. This was a Teachers' Resource Centre and it was a novel idea of the County Council; they were still feeling their way as to the best structure in which the staff could be organised and in fact the post to which Mrs Gething was appointed was rather more of a clerical than a teaching post. She found it unsatisfactory and everyone agrees that that was probably so and that she was perfectly entitled to feel an element of dissatisfaction. Thus the re-deployment had to be considered afresh.

There was agreed procedure for dealing with re-deployment and one of the terms was that teachers who had been previously re-deployed would not be considered for any further re-deployment for a period of four years, save at their own request. As a result of this the question arose of the criteria which Mrs Gething were laying down for her re-deployment. The matter was considered again in 1985 and her criteria were that she had to approve the appointment, and she had to have the opportunity to meet the Head of the School and the Chairman of Governors, or if it was a Church School, the Diocesan Education Officer. There is to be no question of her being placed on a list of unattached supply staff; she had to be a class teacher with her own class, and what she wanted was a proper, permanent teaching job. Those were what she was looking for.

In 1985 she had her second substantial period of illness and although she did work for a period of time at Camborne it was at about this time that a number of vacancies occurred. However, it was found that some Head Teachers were unwilling to consider her and at that time she wrote an "open letter" to the staff at Basset setting out her grievances. That did not endear her to her colleagues. She also wrote to the staff of St Michael's School, in 1986. The time came when by the middle, as best we can judge it, of 1986 she was viewing with suspicion any promises made by the County Council and that suspicion arose out of her unfortunate experience at the Basset Centre.

In July 1986 a post at Stithians, which I think is the name of another school, was offered to her. She refused it because it was not an established post, and although the County Council were prepared to guarantee the job and have the guarantee endorsed by the Chairman of the Education Committee that was insufficient. The guarantee meant that she could have remained the rest of her working life under that guarantee, but that was not good enough.

Her third substantial period of illness occurred in July 1986 and this together with her notoriety made it increasingly difficult to place her on a permanent basis. Discussions took place between trade union officials and the Local Education Authority. From September 1986 to June 1987, which is virtually a school year, Mrs Gething was sent on a course at Plymouth. That course was to specialise in the teaching of English to foreign students. As one can imagine there is no substantial immigrant population in Cornwall and therefore it was going to be difficult to find work for her thereafter. She would not discuss possible postings until the end of her course and it was only in September 1987 that she visited County Hall, but which time of course, as one would expect, the needs of the various Governors and Heads of Schools for new staff for the new academic year had already been met. She did however, teach a Chinese child for a while.

Her fourth period of illness took place from September 1987 to March 1988. After coming back from that illness she did some work, particularly at Stithians for the remainder of that term, and on the 24th June 1988 was offered re-deployment there. It was the offer of a permanent position but was unacceptable to Mrs Gething because she would not immediately have her own class. Other schools were approached, either they were unsatisfactory to her or she was not acceptable to the Head Teacher. Thus, it was clear that the problems were enormous and although the Local Education Authority could require her to attend at a school, in fact, unless the Head of School and the Governors were willing it was an impractical solution.

She was eventually directed to start work at a school called Barncoose on the 29th September 1988, but that came to nothing because she went off sick again and remained sick for the rest of her employment. Thus she remained sick until the 31st December 1989, and that was the fifth period of sickness. By June 1989 she had been off sick for some eight months. She made a complaint to the District Auditor about the County Council in that they had persistently failed appropriately to deploy her as a teacher with above average experience; this was examined and her complaint was said to be unjustified. By the June of 1989 it is quite apparent from the history which we have recited, which is set out in greater detail in the Decision of the Industrial Tribunal that matters had reached a sorry state. The County Council were finding it, in ordinary common sense terms, impossible to re-deploy Mrs Gething, she as a result of the stress created in her, was suffering from physical discomfort and pains, which the Doctors felt were due to the psychological effect of the strain upon her.

On the 14th June 1989 the County Council wrote to Mr Frost, the National Union of Teachers representative at Exeter, and put forward four possible courses of action for the future. One discussed a placing in a school, it would have to be specially funded and so on. The second, that she could voluntarily seek early retirement on the grounds of ill health. Thirdly, that the Council could terminate her contract because of her ill health and incapacity to undertake a teaching role. Fourth, if she were fit enough to work they could dismiss her if she was unwilling to take up a suitable post. So the last three of those suggestions are those which were realistic. It was also made clear in that letter that the County Council did not wish to pursue dismissal if that could be avoided, whether on the grounds of ill health or refusal to take up the position offered. Mrs Gething was on half salary, that was arranged and it was extended.

Mrs Gething, communicated, as we use that word advisedly, with the Department of Education. She did so on the appropriate form; we have here a copy of the form, it is headed "Application for Infirmity Allowance or Short Service Gratuity under the Teachers' Superannuation Regulations" and it was accompanied by notes dealing with eligibility of payment of benefits and it was said in 1b:

"The Secretary of State must be satisfied that you have become incapable though infirmity of mind or body of serving efficiently as a teacher in reckonable service."

The form is an application form, Part A to be completed by all Applicants and there details are set out including the place of establishment and then under "Proposed Date of Retirement (if known)" Mrs Gething put "not yet known". She puts her address, her Bank, in fact completes that form, answers the question and ticks them as the case may be and then signs them, and the declaration towards the end of that form, signed by Mrs Gething on the 14th June 1989 says this:

"I apply for infirmity benefits or short service gratuity under the teachers' superannuation regulations.

I give my consent for the Department to obtain such medical evidence as required . . . .

I understand that in the event of change in pension entitlement or my death any resultant over-issue of superannuation benefits will have to be refunded.

I will inform the Department of my retirement date or any other details change.

I will inform the Department and the Paymaster General's Office (TP) if I begin employment in education at any time during my retirement.

All the information I have given on this form is true to the best of my knowledge and belief."

She received a reply from the Department of Employment, which was dated 12th September 1989, the first paragraph reads:

"With reference to previous correspondence, I can now confirm that you are eligible for a pension and lump sum under the teachers' superannuation regulations, on the grounds of illness."

In the second paragraph, the sentence is included:

"If you have not already done so, you should arrange, with the agreement of your employer, a suitable date of retirement."

A letter of the same date was sent to the County Council. It is a stereotyped letter and it says in the first paragraph:

"I am now able to confirm that the teacher named in Part B overleaf is eligible for infirmity benefits under the teachers' superannuation regulations on the grounds that she is incapable through illness of serving efficiently as a teacher in reckonable service."

and then it says later:

"the Department should be notified as soon as that date has been determined."

that is the date of retirement.

The situation by that time was that the relationship between Mrs Gething and the County Council had become extremely difficult. It is dealt with in paragraphs 40, 41, 42, 43, and 44 of the Decision. The history continues in paragraph 46 of the Decision where the Tribunal indicate that on the 14th September Mrs Gething asked the DES what the figures would be for her pension, and they continue with this important sentence:

"Although she continued her correspondence with the County Council raising complaints as to the delay of arranging meetings, she did not at any time inform them that she never had any intention of retiring.

Their understanding, therefore, was that she had applied for a retirement pension and all that needed to be done was to fix a date for the retirement. They were aware, however, that there were other problems and they would have to deal with her complaints about treatment."

The next document that is relevant is most important. The date is 29th September and on that date the County Council wrote referring to the difficulties of arranging a convenient date for further discussion, and that was the continuing complaint about the matter and the problems. The first paragraph reads in part, and it is cited by the Tribunal in paragraph 48 of the Decision, as follows:

"partly at least occasioned by your setting of pre-conditions and partly because of difficulties of finding a date on which your union representative and your solicitor were free. The cancellation of the meeting arranged for September was by mutual agreement between the LEA and your representative since it was not felt anything could usefully be achieved until your application for early retirement on grounds of ill-health had been determined by the DES.

As you will be aware, in response to your submission of Form 18 Pen, the Des HAS now granted you early retirement with infirmity benefits. In the light of the DES decision the LEA intends to prematurely retire you by reason of permanent ill-health and I am now giving you notice that your employment will cease on 31st December, 1989."

It is to be noted that that is at the end of the year and that there is the three months notice.

Further correspondence took place. On the 6th October Mrs Gething wrote again, she did not mention that the County Council had misunderstood her intentions in applying for a pension. Concurrently there was correspondence between the County Council and Trade Union Solicitors and they did not suggest that there had been any misunderstanding by the County Council of Mrs Gething's intentions.

On the 24th November Mrs Gething wrote a further letter, and this is an important letter upon which Mr Mincoff relies in particular. In that letter Mrs Gething instituted a Grievance Procedure, she says, that she had been dismissed, that she had not resigned and she emphasised that she had repeatedly signified that she would accept redeployment. She indicated that her employment had been terminated unilaterally, without any discussion or agreement with either herself or her Trade Union, and she indicated also that although she was receiving a pension it did not relieve the County Council of responsibility in the matter. She ended that she required a Grievance Procedure to be instituted.

She, on the 8th December, wrote, making a number of points but emphasising:

"I am obviously looking for significant financial compensation."

Then arrangements were put in hand, and she wrote again on the 16th December, raising a number of points but ending up with this:

"If it is you view that the Education Committee will not sanction a significant compensatory package, for whatever reason, I think it is your duty to so advise me."

As a result of this correspondence the County Council cancelled the Grievance Procedure hearing, because they felt that it was financial compensation that she was seeking and that was perhaps confirmed by a letter of the 29th December in which she maintained that she wanted significant financial compensation. Her employment terminated two days later on the 31st December.

On the 19th January there was a further mention of the Grievance Procedure, but by then she had left the employment of the County Council and was in fact, in receipt of her pension.

Perhaps not at the same length as the Tribunal did, but that is the broad picture of the history of this matter.

It behove the Tribunal to look to see, first of all, whether there had been a resignation or whether there had been a dismissal. Of course, if there had been a resignation then there would be no question of unfair dismissal and they looked at that letter of the 29th September in particular and the whole situation and posed the problem to themselves thus:

"The vital question to decide is who terminated the employment. Mrs Gething certainly had given indications to both the D.E.S. and the Council that she was proposing to terminate her employment by seeking early retirement on the grounds of ill health. There had been nothing to suggest that her enquiries were anything but genuine, and they were the preliminary steps in a retirement. She did not, however, indicate a day on which she proposed to retire, nor give any formula by which a date could be calculated."

They found that that letter terminated her employment and that there was a dismissal.

The next question therefore, was, Was there a reason for the dismissal? They posed the problem to themselves in paragraph 63 by saying this:

"Either the County Council was proceeding simply by way of a dismissal on the grounds of lack of capacity or the alternative interpretation, the County Council were merely taking a required step in the sickness/retirement procedure which, as it happens, falls within the definition of `dismissal' in Section 55 of the 1978 Act."

In this connection the Tribunal refer themselves back to the various proper steps which were put forward in the letter of 14th June from the County Council. As the Tribunal realised, this decision was important because, if the reason for the dismissal was capability, then the Education (Teachers') Regulations 1989, SI 1319, applied and if the employment was to be terminated on the grounds of ill health then under Rule 9 there was a detailed, mandatory procedure which had not, in some particular parts, been complied with. In general terms one could say, perhaps, that the medical picture had been examined extensively, but there were parts of it which had not been complied with. Therefore, if they applied, the dismissal would have been unfair and if that route had been the route of the decision then it is likely that the principles of Polkey v. A E Dayton Services Ltd [1988] HL would have been brought into being and the Tribunal would then have had to consider whether, if the procedure had been followed it would have made any difference whatsoever. However, it did not take that route, it decided that the procedure which had occurred was not the procedure for a dismissal on the grounds of capability. The Tribunal say this, and this again is important, in paragraph 66 they say:

"Mrs Gething's case is that her state of health was brought about by the failure on the part of the County Council to provide her with suitable work. We are satisfied that the work offered to her was within the terms of her contract and they could have justified a dismissal on the grounds of her failure to take at least the work at Stithians, but they never embarked upon such a course."

So that, had there been a dismissal it could have been on capacity, it could have been on conduct.

They ultimately reached this conclusion in paragraph 68, they say:

"For us to take such a view, however, [namely that there had been a dismissal for some other substantial reason] would be to fly in the face of commonsense and disregard entirely the realities of the case. The letter of 29 September was written because it was regarded by the County Council as an essential requirements of the application for a pension that they should fix a date. Reference was made to that in the letters of 12 September from the DES to both Mrs Gething and the County Council."

they therefore find that the reasons was:

"`Some other substantial reason'".

and they go on to consider Section 57(3) and they say in paragraph 71:

"we also find that the County Council acted reasonably in treating it as a sufficient reason for the dismissal. I was written as an essential step in a procedure initiated by Mrs Gething herself.

We have considered whether the institution of the grievance proceedings should have led the County Council to review the decision to dismiss. We do not find that to be the case. When considering the correspondence as a whole, it is quite clear that Mrs Gething never at any time suggested that they had misunderstood her intentions and that her application to the DES was merely an enquiry about her prospects.

Had that been the case, she would have written to the County Council stating that they had misinterpreted her wishes and that she was seeking employment rather than a pension.

The County Council specifically asked her what redress she sought and she was evasive in her reply."

They were entitled to take the view that it was monetary compensation and that was all she required. So that, the situation is this. The Tribunal found that the reason was some other substantial reason, the procedure were carried out because of what Mrs Gething herself had initiated as an application for a pension; that there was no reason for them to suppose that that was not her wish and her intention, and in fact she received her pension at the end of December and that so far as the grievance was concerned her only desire was finance.

That last finding is important from another aspect. Mr Mincoff, who if we may say so without appearing obsequious, has said everything that could possibly be said on behalf of the Appellant, and we are grateful to him, has taken the point, and one of his major points, that there was no effort here to seek alternative employment. There are cases where that is a desirable process, one can think of a case where someone is basically a manual worker in a large establishment, or possibly a counter assistant in a large group of stores, something like that, where it is more than likely that if one goes through the Personnel Department that there might be some other niche without, perhaps, the personality clash, which was evident, something like that, but here it is quite clear that the finding of the Tribunal was that Mrs Gething was not really genuinely looking for further employment, what she wanted was money. So in the circumstances it does not surprise us that the Tribunal did not detail any question of finding alternative employment. The other way in which Mr Mincoff puts his case, is that, when one looks at certain isolated sentences in letters there might be an indication and the basis of an argument, that this was never more than an enquiry about what the pension would be prior to considering the matter. The more one looks at the printed forms; the more one looks at the way in which the matter was suggested, namely that earlier letter of the 14th June where the options were placed there, and where the County Council said "look we really do not want to go to dismissal, we would much rather the situation was early retirement", when one considers the benefits of early retirement over other forms of cessation, to use a neutral word, then it seems to us quite clear that the Tribunal looked at this matter overall; they looked at the whole unfortunate history; they saw and heard Mrs Gething and the other witnesses and they took a common sense view of the whole situation. That was a view which in our judgment is a view that they were entitled to take in law and that there was no error of law in this Decision which was impeccable in the way in which it was presented.

As we can only deal with appeals on points of law, there is nothing we can do to help Mrs Gething in the present circumstances and this appeal and the cross appeal, because there was submission that this was in reality a retirement and not a dismissal. The appeal and the cross appeal must be dismissed.