United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 456_95_3110

Appeal No. EAT/456/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31 October 1995

HIS HONOUR JUDGE P CLARK

MR J H GALBRAITH CB

MRS T A MARSLAND

---

MISS J ALLEN          APPELLANT

BRITISH BROADCASTING CORPORATION          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant MR J BEGGS

(Of Counsel)

Messrs Fremont and Co

Solicitors

5 Fitzhardinge Street

London

W1H OED


 


JUDGE CLARK: The Applicant was employed by the BBC from July 1967 until May 1992, when she was dismissed. She brought a complaint of unfair dismissal which was heard over six days by the London (South) Industrial Tribunal in July 1994. It was her case that she had been victimised and persecuted for being a "whistle-blower". Specifically, she said that she had exposed dishonesty among BBC staff members in hiring out costumes on a commercial basis. In a written decision running to twenty pages, the Industrial Tribunal concluded that the BBC had not carried out a sufficiently adequate investigation into allegations of misconduct against her, and that the dismissal was unfair. The Tribunal also found that the BBC had acted with unseemly haste to get rid of an employee, who was regarded as something of an "irritant", as it is put by Mr Beggs in his Skeleton Argument.

In these circumstances, the Industrial Tribunal found the dismissal unfair. At that hearing, the Appellant indicated she wanted her old job back. Counsel for the BBC said it would not be easy to take her back (paragraph 39 of the first decision). The Industrial Tribunal in the following paragraph, said that it had insufficient evidence on which to form a view and adjourned the question of remedies for settlement, or failing that, resolution by the Tribunal. Against that decision which is dated 5 August 1994, the BBC appealed. That appeal came before this Tribunal on a Preliminary Hearing on 13 January 1995. At this Tribunal, Mr Justice Mummery presiding, found that no arguable point of law arose in that appeal, and it was dismissed at that stage. No agreement was reached as to remedies and that issue went back to the same Industrial Tribunal on 1 February 1995.

The Tribunal considered the Applicant's request for an order for reinstatement, or failing that, re-engagement and rejected it on the basis that the necessary mutual trust and confidence between employer and employee was, in the words of the Industrial Tribunal, almost non-existent and that it would be wrong to attempt to resurrect the employment relationship by an order of reinstatement or re-engagement. Accordingly the Tribunal made a maximum award of compensation, including the basic award. The Appellant appeals against the Industrial Tribunal's refusal to order reinstatement or re-engagement. Three broad grounds of attack are launched at the remedies decision by Mr Beggs, who appears on her behalf.

First, he says that the Tribunal failed properly to consider the provisions of Section 69(5) of the Employment Protection (Consolidation) Act 1978. We have considered his submissions. We have also looked at the decision itself. At paragraph 4 of the Remedies Decision, the Tribunal set out the questions and matters which they are required to consider under Section 69(5). They refer to two authorities including the case of Notham v London Borough of Barnett [1988] IRLR2 page 65. The observations in the headnote to that report concludes:

"Where, as in the present case the ex-employee believes himself to be a victim of conspiracy by his employers he is not likely to be a satisfactory employee in any circumstances if reinstated or re- engaged."

The Tribunal then review evidence principally heard by them during the liability hearing and they make a number of observations. I take some from the reasons. They say:

"... As her actions made it very clear that she did not trust or indeed have confidence in many of the colleagues and managers with whom or under whom she had worked."...

They refer to a letter she wrote in which she said:

"... no one should have to work in the environment created for me, my life has been reduced to walking fearfully on a tightrope embedded with broken glass, my position at the BBC deliberately made untenable by disciplinary procedures..."

The Tribunal refer to and find that:

"... During the two Appeals the Applicant produced an enormous volume of material which formed criticism of her colleagues and managers."

We see from paragraph 10, that at the remedies hearing, the Tribunal refer to a report critical of BBC management which the Appellant was to use in cross-examination. They say:

"... This is yet another occasion where the Applicant is putting to the test managements ability to conduct itself correctly."...

They conclude:

"11. ... in May 1992 when the dismissal took place the mutual trust and confidence that one would expect to find between an employer and an employee had been severely battered and in our view was at that time almost non-existent.

"12. ... The employment relationship having been severed common sense tells this Tribunal that it would be wrong to resurrect it and we are unanimous in refusing to make an order for either re-instatement or re-engagement."...

Dealing with that point and taking it separately, it seems to us that there were findings by this Industrial Tribunal to which they correctly applied the law and exercised their discretion in a way which we cannot say, and would not be able to say, following a full appeal hearing, was perverse. Mr Beggs takes a second point in relation to the public policy and purposes of the 1978 Act. We bear in mind that, as is illustrated by the case of Warner v Nelson [1937] IKB 209, English law has never compelled an employer to take back an employee, nor compelled an employee to work for an employer. The reality is, and it is clear from the letter which was apparently written by the BBC's solicitor on 27 February 1995, and referred to in Mr Beggs helpful chronology, that the BBC would never again, knowingly, employ the Appellant, either directly or indirectly. At the end of the day, even if an order for reinstatement or re-engagement was made, the reality is that it would not be complied with and an additional amount of compensation would then be awarded.

Before reaching that stage, it seems to us that this Tribunal is entitled to look at the practicality of the order in the first place. We see no argument that can properly be put before this court to say that the approach of this Industrial Tribunal on these facts was contrary to public policy. Finally, it is submitted that at the remedy hearing there were various breaches of natural justice, which require that this decision should be overturned and remitted for further consideration. It is said that the Appellant's application for an adjournment was refused, and that she was not given a chance to properly put her case on the issue of re-engagement and she was unable to call further evidence. We do not think that there is any real substance in those complaints, bearing in mind, as Mr Beggs has reminded us a number of times, that in paragraph 40 of the original decision, the Industrial Tribunal said then that it had insufficient evidence to decide one way or another whether reinstatement or re-engagement was appropriate.

It mus have been quite clear to Miss Allen, who conducted her case on the liability hearing for some six days with conspicuous success, that the purpose of the remedies hearing was to decide the question of reinstatement or re-engagement; and that evidence could be called for that purpose.

Taking all these matters into account, it seems to us that it was open to the Industrial Tribunal to conclude that it was not practicable to reinstate or re-engage the Appellant, in circumstances where they found the necessary mutual trust and confidence had gone. Such a conclusion was a permissible option in our view, supported by authority. It is not, in our judgement, open to this Tribunal to interfere with the Industrial Tribunal's exercise of its discretion in this case. Accordingly the appeal will be dismissed at this stage.