United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 460_94_0405

Appeal No. EAT/460/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4 May 1995

Before

THE HONOURABLE JUDGE HULL QC

MR K.M.HACK JP

MR R TODD

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MR T D PENTON          APPELLANT

LONDON BOROUGH OF TOWER HAMLETS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M HALL-SMITH

(Of Counsel)

For the Respondents MR PAUL ROSE

(Of Counsel)

London Borough of Tower Hamlets

Mulberry Place

5 Clove Crescent

London

E14 2BG


 


MR JUSTICE HULL: This is an appeal by Mr T D Penton against a decision of an Industrial Tribunal which sat at London (North) under the Chairmanship of Mrs Calvert with two Industrial Members for no less than 3 days. He was represented before the Tribunal by Counsel and the Respondents, his Employers, London Borough of Tower Hamlets, were also represented by Counsel, Mr Rose, who has appeared before us today. Mr Reeves, who appeared for him in front of the Industrial Tribunal, has not appeared today but fortunately Mr Penton has been represented by Mr Hall-Smith, of Counsel, instructed by solicitors. It is necessary to give a little of the history.

Mr Penton was first employed as a caretaker within the same area as he has been working more recently in Tower Hamlets, in Bethnal Green specifically, in 1977. There came a time in 1979 when the process of winding-up or abolishing the GLC took place and in common with many other aspects of Local Government, Housing was transferred to the Boroughs. There had to be all sorts of provisions about that, including the question of the transfer of employees such as Mr Penton, as the caretaker. Among many other regulations dealing with this, there was the Greater London Council Housing Staff Transfer and Protection Order 1979; I will paraphrase that because the precise terms do not matter very much: `the terms and conditions which were to be accorded to those who were transferred, were to be not less favourable than those which they had enjoyed before under the GLC'. That is a familiar provision. There were similar provisions in legislation and delegated legislation in the 1960s and (as I recall), on earlier occasions too, because when officers who certainly knew that there was reasonably expected to be secure employment were transferred from one authority to another, it was necessary to make provision for security of employment and (it really is a corollary), that the terms and conditions should be not less favourable. That expression, or other equivalent expressions, have been the subject of a good many differences and there was indeed provision under this very order for any difference between the Employee and Employer, as to whether the terms and conditions were more or less favourable, to be adjusted by a reference - something equivalent to an arbitration - a person would be appointed to decide those questions. I do not, again, need to go into details. In fact, the Applicant was apparently not transferred from the GLC under these provisions until 1985.

The history of the matter is that those caretakers who were transferred by the GLC did in fact enjoy under the GLC, and therefore under their new Employer, considerably more favourable terms and conditions than those who were employed by the Tower Hamlets London Borough. There were various difficulties. I do not need to go into all of them. The London Borough, which had divided itself into seven neighbourhoods of which Bethnal Green is one, thought it right to take expert advice on resolving those difficulties of organisation, employment policy and so on. We have read that a report was prepared by no less a body than the London School of Economics, related to this, and that various schemes for reorganisation were drawn up. These schemes included offering new terms and conditions to the caretakers as a body. This was the subject of a very great many meetings. We have counted thirty meetings, listed by the Industrial Tribunal before whom this came, between representatives of the Employers and representatives of the caretakers. These meetings did not all result in success.

The new terms were acceptable to a number of caretakers, but not to all. The alternative to acceptance was dismissal. There came a time when the Applicant, one of those who had not accepted by a deadline which was set, was in fact dismissed. The Employers were only prepared to employ the caretakers on the new terms. He complained to the Industrial Tribunal that he had been unfairly dismissed and in their answer, the IT3 (which starts at page 13 of our bundle), the employers, the London Borough of Tower Hamlets, said that the Applicant was indeed dismissed and the reason for his dismissal was reorganisation of caretaking services. That is what they had to show if they were to justify the dismissal as being a fair one. They of course had to show much else beside. They had to show that the reorganisation was itself a fair and proper one and they had to show that it was conducted in a fair way. That was the issue before the Industrial Tribunal.

One Industrial Tribunal under Professor Rideout heard 3 cases, treating them as test cases for quite a large number of caretakers. After sitting (I think for 10 days) and with the assistance of leading Counsel and other well-known Counsel, including Mr Rose himself, they reached their conclusions about that. The matter was evidently gone into with very great thoroughness. The Applicant said that his case was different from those, he did not wish to be included as one of those who would be bound by the result of the test cases. He said, among other things, that he had been discriminated against because of his Trade Union activities. Presently, whilst his case for unfair dismissal was pending, he abandoned that contention, but nonetheless the Industrial Tribunal went ahead with the case. Indeed, wishing to be as fair as possible, they deliberately refrained from going into the question of what had happened before Professor Rideout and his colleagues at the other hearing, so they tried the matter de novo. Their decision is set out from pages 4 onwards of our bundle. The Tribunal was chaired by Mrs Calvert, a very experienced Chairman, and they spent 3 days, with the assistance of Counsel on each side.

As they set out in their Decision, the nub of the dispute between Mr Penton and the authority was whether the terms which had been offered to him were as favourable as those which he already enjoyed. That was the basis of his saying that the dismissal which he had suffered was unfair. He raised a number of matters and the Tribunal dealt with them at length. They considered the documents. We have not been able to consider any documents. In paragraph 8 of their Decision, they go through the figures. They look at all the figures. They say that there was a difference of £2.49 a week; not an absolutely negligible sum, but a very small sum, relatively speaking. They went on to say that there were in fact a number of terms which were offered which were very much more favourable to Mr Penton than his old terms. There was a "right to buy" provision, which the Authority said was worth £35,000. There were other benefits, which they set out, including a subsidised or free telephone. Their conclusion (and it had to be a conclusion of fact, unless they ignored some important matter, or failed to construe documents correctly, or something of that sort) was: we find the overall package being offered to Mr Penton was more advantageous than his old contract and it was not a good ground for refusing to sign the new contract. They considered his complaints that there had not been fair and proper negotiation; that he had been stampeded, not treated fairly in that way; they found there was nothing in that. They found there was ample opportunity for consultation and negotiation, as I say they listed no fewer than 30 meetings. They said that the Authority had indeed extended the deadline.

After this lengthy hearing they were satisfied, simply as a matter of fact, that Mr Penton had been treated fairly and that his dismissal on the grounds of reorganisation was a fair one and so they dismissed his application and made no order in his favour. Then the misfortunes continued; because it appears Mr Penton did not receive notification of the hearing as soon as he should and so, although it was promulgated and sent to Counsel who had appeared for him, who sent it to solicitors who had acted for him, he did not hear about it in time. He gave a Notice of Appeal dated 12 November 1993. It was of course very much out of time, because the Decision had been promulgated on 1 July 1993. This Tribunal [the E.A.T.] refused to give leave to appeal out of time; then it came before the President of this Tribunal, who, having heard Mr Penton, decided that there had been a chapter of accidents and that he would give leave to appeal, that was on 16 May 1994. It could certainly be said to be, as indeed of course the President said, an exceptional course to take in exceptional circumstances. Nearly a year has elapsed from that date to now.

Now we look at the Notice of Appeal. It says two things:

"The Tribunal failed to take into account the provision of the Greater London Council Housing (Staff Transfer and Protection) Order 1979 SI 1979 Number 1737."

That on the face of it, as Mr Rose said in his Skeleton Argument, was a very incidental matter. What had to be considered was not whether the terms of that order had been faithfully carried out, but what were the pay and other terms and conditions of Mr Penton at the time of the negotiations and what was he being offered then? That was what had to be considered. Clearly, terms would probably have varied since 1985 and what mattered was the fairness of what happened in 1989, that was what the Industrial Tribunal had to consider. But that was the first criticism; that they had failed to take into account the provisions of this order. The second was that:

"The Tribunal erred in its construction of the terms of the old and new contract..."

which we understand to mean, what was being offered. That is said to be:

"*Subject to amendment on advice from Counsel."

As I say we have a very helpful Skeleton Argument from Mr Rose but Mr Hall-Smith who appears before us today, notwithstanding the lapse of no less than a year since this appeal was permitted to continue out of time, has not had an opportunity to put before us a Skeleton Argument setting out what his case is and how he supports these grounds, nor has there been any attempt to put before us the documents which were before the Industrial Tribunal; very numerous documents apparently. Nor has there been any attempt to amend the Notice of Appeal or add grounds saying exactly how this appeal is to be advanced. Mr Hall-Smith tells us that he has been instructed under a Legal Aid Certificate; he thought it right to give certain advice under that Legal Aid Certificate and received the instructions for which he asked only this morning. One would say nothing more than this, that these facts speak for themselves. Clearly, this appeal has not been prosecuted in the way that one would wish. Mr Hall- Smith is without any fault on his part embarrassed by the way that he has to present it. He says there are two grounds which he wishes us to consider. First, he says at the very time of the hearing by the Industrial Tribunal and earlier, Mr Penton was engaged in an appeal under the provisions of the Order of 1979 to which we have referred, in which he was seeking to establish that the terms and conditions which he had enjoyed from 1985 onwards were simply not in accordance with the Order and that under the terms of that Order, he should have been receiving something like £7,000 p.a., £140 per week gross, on top of what he was receiving. As we can see from his IT1, he was receiving a basic salary of £247 per week he said, with a take-home of £170 per week, that apparently would include his overtime payments and any other payments he was entitled to. He was entitled to something like £140 per week he said on top of that. A very notable sum indeed. We asked Mr Hall-Smith how that was put in front of the Industrial Tribunal; apparently it was not put to the Industrial Tribunal at all. Of course there would be various ways of putting it. It might be said to the Industrial Tribunal, well in view of this pending appeal or reference under the Order, you should adjourn on a wait and see basis, so that you can see how matters justly stood and should have stood, ever since 1985, with regard to Mr Penton's salary. There would be a difficulty there of course, because the Industrial Tribunal might say, well we have to consider the fairness of what was done and unless you raised this with the Employer, it is very difficult to see that it can be said that they were unfair in dealing with the matter on the basis of what you had been paid and what they hoped to pay you in future. So that would be a possibility and we are really rather speculating in saying that, alternatively of course, it could have been said: well the employers either knew, or should have known very well, that this appeal was under way; that it might yield a result in the form of extra pay and in making their offers they should have taken all that into consideration, and perhaps have said, well we are making you an offer on the basis that we are paying you the correct amounts at the moment, but we shall have to include provisions under which, if your reference is successful and it is held that you should have been paid more, that will be taken into account and fully taken into account if you continue with us under the proposed new terms. It might have been put like that and of course, this is simply speculation. It might have been put in various other ways. An adjournment might have been asked for on that basis or it might not. Counsel, Mr Reeves who appeared for the Applicant, might have been content to deal with the matter there and then, on the basis that this was clearly a piece of unfairness by the Employers. So all those things might have happened.

All this is of course news to us and I think news to Mr Hall-Smith today. How was this matter was put to the Industrial Tribunal? The answer is, apparently, that it was not put to them at all! This matter, which is now raised before us as being something where the Applicant has a very serious grievance, should have been an altogether very much better paid man than he was, an outstandingly well paid man, it would appear to us, was not raised at all before the Industrial Tribunal. It was not raised at all in his Notice of Appeal. It was not apparently raised in the negotiations with the Local Authority. One would have thought that such a dramatic possibility as has apparently materialised would have been a matter which would have galvanised his colleagues, the other caretakers and been raised in front of Professor Rideout, in the course of the ten-day enquiry. But there it is, it is raised for the first time before us today.

The second matter upon which Mr Hall-Smith says he wants to make a complaint is this; that Mr Penton was handicapped because his time sheets and wage sheets had been destroyed by the Respondent, the Local Authority, a week before the hearing. It seemed to me and I said that that was an outrage, if that had happened. It then appeared that Mr Hall-Smith did not put it as high as that. In fact it was the case that they simply had not been kept, apparently. Time sheets are usually not kept for a long time; the object of time sheets is that the accountant or clerk employed by the Employer can do the necessary multiplication sums at the end of the week or month, and find out by applying the correct multipliers how much money is to be paid to the Employee, for time, time and half, double time or whatever it may be for overtime, and his other earnings. All other documents says Mr Rose were still in existence and were looked at by both the Industrial Tribunals I have referred to. There were the pay slips, P60s - the documents which are prepared at the end of each year for the purpose of the Income Tax authorities - and so on. So every other document was there but this again was not made the subject of complaint to the Industrial Tribunal and if it had been, one would expect to see a reference to it. Mrs Calvert and her colleagues would have been told by the Applicant, I am handicapped because I cannot produce them, the Local Authority has now destroyed the time sheets. Now if that complaint had been made to Mrs Calvert and her colleagues they would of course have been bound to say to themselves well, if we find there is any unfairness here and any uncertainty, we shall have to resolve it against the Employer. The Employer is here under a burden to show what the reason for dismissal was and in effect in the circumstances of this case, although there is no formal burden of proof, to show us that the Employer has acted reasonably and fairly. If the Employer has done something like this which handicaps the Applicant, that will be a matter which we will take into consideration. On the contrary there is no reference whatever to this in the Decision.

We asked Mr Hall-Smith how it was that this appeal came before us in such lamentable condition, with so little to be said that could possibly raise a point of law. He says that, (again this is news to us of course), Mr Penton has had the misfortune to go to prison and is still in prison. He went to prison in August 1994. To be practical about it, anybody who has spent time in the law knows very well that the fact that a person is in prison is normally no handicap in preparing an ordinary appeal. On the contrary it means that solicitors and Counsel know exactly where he may be at any particular time, where to write to him; and he has all the leisure in the world necessary to put pen to paper and commit his thoughts to paper and give instructions. Of course he can be visited in prison and in that way can be attended by Counsel and have conferences or be attended by solicitors as he wishes.

The fact is that having gone through it as we have with Mr Hall-Smith's and Mr Rose's assistance, we can find here no point of law. It is quite manifest that this application to the Industrial Tribunal was tried out on a basis very different from that which is put to us today and it was tried out on a very true basis by Mrs Calvert and her colleagues. They had to consider whether what were being offered to Mr Penton were fair and proper terms and conditions, so that it was reasonable for him to be dismissed. It was no light burden for an Employer who was reorganising to show that he had acted reasonably. They say nothing whatever of the matters which are pressed upon us today. Nor does the Notice of Appeal itself say anything of these matters. It would have been the simplest thing in the world, one would have thought, for Mr Penton when he appeared before the President of this Tribunal, even at that late stage, to say my Notice of Appeal is not yet in order; my feelings are that there has been a miscarriage of justice; and then to tell the learned President about that, but no. Although he has had solicitors acting for him and Counsel has advised, the matter is now brought before us for the first time in the way that it is put today by Mr Hall-Smith, as well as he can.

In all the circumstances, Mr Hall-Smith says that the decision of this Tribunal was perverse. We ask ourselves how can that possibly be? If they were not asked to adjourn because this matter of the £7,000 a year extra, which he was to earn, was not pressed upon them, how could it be said they were perverse there? It is said again that they were perverse because they did not pay proper regard to the fact that the timesheets had been destroyed. We think it inconceivable that that could have been overlooked and it is quite clear to us, from what Mr Rose has said, that there is no question of that being overlooked, as a matter which was pressed on the Tribunal and which they simply did not deal fairly with. So having heard all that has been said to us, it is apparent to us that this is an appeal which is quite hopeless. There simply are no grounds of law shown here and there simply is no factual basis for the appeal whatever. There is no error of law by the Tribunal shown in their Reasons and there is certainly no perversity or misconduct by the Tribunal shown in the account of the matter which we have heard. One could say a great deal that is also self-evident from the history of this matter, but these are matters which speak for themselves and any comment by us would be superfluous and perhaps going beyond our duties. There is nothing here in this appeal whatever and we therefore are obliged to dismiss it. That is our decision.