United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 425_93_1101

Appeal No. EAT/425/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 January 1995

Before

HIS HONOUR JUDGE D M LEVY QC

MR L D COWAN

MR D G DAVIES

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MS C GIBSON          APPELLANT

CHESHIRE COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR S GORTON

(Of Counsel)

Messrs Steggles & Mather

Solicitors

Crown Buildings

121A Saughall Road

Blacon

Chester

CH1 5ET

For the Respondents MR R SPENCER

(Of Counsel)

County Secretary & Solicitor

County Hall

Chester

Cheshire

CH1 1SF


 


JUDGE LEVY QC: This is an appeal by Ms Gibson from a Decision of a Tribunal held in Liverpool on 12 February and 8 March 1993. The Decision was communicated to the parties on 8 April 1993 and the Notice of Appeal lodged on 24 May 1993.

The grounds of appeal were, by consent, amended today. It is right to add that this appeal had been through the procedure which vets appeals which come to a full Tribunal. It arises from Ms Gibson's recurrent employment on a temporary basis from time to time with the Cheshire County Council.

The contract on which she was employed and which led to this application was made by a letter dated 26 March 1991, which we find on page 59 of the bundle handed to us today. As were her earlier contracts, it was in the form of a letter from the Cheshire County Council, which had attached to it standard terms of employment of the County.

It seems apparent from the letter at page 59 that we have not got the whole of the letter here, but it is common ground between the parties that nothing turns on that. The extract from the letter reads:

"Dear Ms Gibson

I have pleasure in offering you an appointment to the staff of the Cheshire County Social Services Department. You are appointed to the service of Cheshire County Council as a temporary Staffing Officer (maternity cover) (underlining added) (and the grades and salary are given. The letter continues).

In accordance with the County Council's flexibility policy it is, however, a term of your employment that you may be required to work on different duties, or in any other job, within your competence. Such jobs will either be in your present or any other location as may be appropriate. The terms of the County Council Redeployment Procedures will apply if a change of job is proposed. Before implementation of any change, regard will be paid to your qualifications, experience, current duties and responsibilities and personal circumstances, through consultation with you and, if you wish, your trade union representatives ...underlining added)

(And then there is a paragraph about redeployment and relocation costs and the letter continues):

Your appointment is with effect from 1 April 1991 and I enclose written particulars of terms of employment in accordance with the Employment Protection (Consolidation) Act 1978. You will note that the attached statement indicates the position only in very general terms, and this letter is therefore intended to amplify some matters in which you will be particularly interested, and to set out any additional conditions to which your appointment is subject

(the next paragraph is very important).

Your appointment is temporary to cover for maternity leave and is for a period until such time as the present post-holder returns.

HOURS OF WORK

Your normal working week will be 37 hours".

That is where the extract from the letter of appointment ends. Attached to the letter were the Cheshire County Council Appointment Protection provisions. Our attention has been particularly drawn to condition 17 dealing with "Discipline Grievance and Capability Procedures" and 19 dealing with "Duties".

Two short points were taken on appeal. The first is that the terms of employment, which are set out in the written document, exclude the possibility that on a construction of the contract this is only a temporary posting. A temporary posting, it was argued, could not attract circumstances which would allow the "Disciplinary Grievance and Capability Procedures" to be excluded from procedures to be followed on termination of a contract and these proceedings were not followed. That was something that was argued strenuously below and the Tribunal found that on a construction of the contract those provisions were excluded.

We have been carefully taken through all the provisions which were thought material by Mr Gorton to support his able submission, that the decision below was wrong. We do not agree that the decision below was wrong, but, even if we did, we do not think that it was a decision that no Tribunal, reasonably directing itself, could come to. Ms Gibson's contract was clearly one for a temporary posting.

In reading the letter of appointment the words "temporary", "flexibility" and "change of job" were stressed. That is because it is apparent to us that the Appointment Protection provision to which we were referred were really largely to do with redundancy. Though applicable if there were changes in the job which the Ms Gibson was doing during her employment, they were not pertinent to the position at the end of temporary employment.

A second point was argued on behalf of Ms Gibson, namely that such grievance procedures as it was common ground were applicable here, were not properly adhered to. It is necessary in this context to look at the chronology. I have read out the letter of appointment. On 16 March 1992 a letter was written to Ms Gibson in these terms:

"As you know, your contract will terminate on 31 March. Although I realise that your current situation is such that you may not wish to be reminded of this, I wanted nonetheless to express my thanks to you for the contribution you have made in the District during the last year.

As I am sure you have gathered, the post of Staffing Officer is demanding both in terms of the volume and the complexity of the work. Without doubt you brought to the job knowledge and experience which have benefited the District. I hope that you feel you will take more of both away with you after your time in Vale Royal. Your work has been of a consistently high standard and I am grateful for the commitment and enthusiasm you have demonstrated in taking the section through a very difficult period.

I sincerely hope that an opportunity will arise very soon both to enable you to continue working with Cheshire, and to enable Cheshire to benefit from your skill and experience. I wish you well".

It was signed by the District Manager for Social Services. The evidence before the Tribunal was that shortly before Ms Gibson's employment was due to end a person who was being replaced was on maternity leave. That person took annual leave in addition to maternity leave so the employment of Ms Gibson continued a little longer. Thereafter, Ms Gibson was asked to stay on a further few days to finish a further job. She was thus to leave on 6 April 1992.

On 31 March, the last date mentioned in Mr Whitehead's letter, Ms Gibson wrote a letter which reads:

"As you know my last day of service is due to be on Monday, 6 April 1992 after continuous service with Cheshire County Council since May 1989.

I am extremely dismayed that it is necessary to resort to the grievance procedure to claim my entitlement after the service I have given to the organisation and the feedback I have received.

I have taken legal advice which confirms that I am entitled to redundancy and have a possible unfair dismissal case and that I should have been found alternative employment because I have more than 2 years' continuous service with the same employer.

Having been asked to complete a redeployment form by the Redeployment Officer some weeks ago and been promised that I would be assured interviews before ordinary applicants for vacancies, I was surprised to hear you telling me you were only using the redeployment process to bring vacancies to my attention. As you know I have made several attempts myself to find alternative employment and have missed several opportunities via the redeployment process because it has not been applied appropriately.

The redeployment procedure says `the County Council will treat all employees with the care and consideration of a good employer', but I do not feel this has been evident in my case.

In view of the nature of my grievance and my imminent departure it has been necessary to bypass the full stages of the procedure starting with my line manager.

Obviously my expectation is that I will be treated no differently from any other redeployment case".

That letter was addressed to the County Personnel Officer and it was not until 21 April that he replied to it and his reply reads as follows:

"Dear Christine

Thank you for your letter dated 31 March and your reminder dated 15 April 1992. I had not replied to your initial letter because I knew you were still under consideration for a vacancy at Backford Hall, but I now understand you were not successful.

Your letter does raise issues relating to the Redeployment Procedure and Grievance Procedure and how these should be used in relation to temporary employees. As you know I have been anxious that you should have been considered for any vacancy that might be suitable although as you know, these have been few and far between. I also do not think it is appropriate for a grievance to be lodged directly with me, excluding the normal stages of the procedure, although I understand your reasons for doing this. I therefore sent a copy of your letter dated 31 March to Social Services.

However, before going into technical issues, I am still pursuing the possibility of an opportunity within the Social Services Group and I hope to be in touch with you in the next week to let you know the outcome".

The references in the letter to "technical issues" were, whether and if so how "the redeployment procedures and grievance procedures" applied to Ms Gibson's contract. We are satisfied that these were matters which were properly addressed by the Industrial Tribunal. Even if we disagreed with their findings on them, which we do not, they are not findings with which we would find ourselves able to interfere.

The Industrial Tribunal went carefully into the issues and arguments placed before them. We do not accept Mr Gorton's submission that they misunderstood paragraph 12 of the Reasons the submissions which were made by him. We think that Ms Gibson was a very good servant to the Cheshire County Council, albeit in a temporary position. Whilst it is true that they were unable to find replacement employment for her, on the authorities which have been cited to us, we do not think there was anything the Respondent Council did not do which they should have done. In those circumstances, and not without regret, we feel we must dismiss this appeal.

We hope that we have not done injustice to Mr Gorton's argument giving judgment as we are quite late in the day. Everything he said has been carefully considered by us; we are in no doubt whatsoever that the decision of the Industrial Tribunal was correct.