United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 316_95_2902

Appeal No. EAT/316/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 February 1996

HIS HONOUR JUDGE P CLARK

MR D G DAVIES CBE

MR K M HACK JP

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MR P J FAWN          APPELLANT

DEVON COUNTY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M BRABIN

(Of Counsel)

Messrs Howard & Over

61 Fore Street

Ivybridge

Devon

PL21 9AE

For the Respondents MR P MILLER

(Of Counsel)

SOLICITOR

Devon County Council

County Hall

Exeter

EX2 4QD


 


JUDGE CLARK: This is an appeal by the employee, Mr Fawn, against the decision of the Industrial Tribunal sitting at Plymouth on 6 February 1995, dismissing his complaint of unfair dismissal against his former employers, Devon County Council. Full reasons for that decision are dated 9 February 1995 (the reasons).

Mr Fawn was employed by the Respondent as a teacher on a succession of temporary fixed term contracts, between 1 September 1991 and 31 August 1994. Initially he was appointed to Honiton Community College for twelve months. Thereafter, he was employed at Southway Community College (later called Southway Comprehensive School) under four consecutive temporary fixed term contracts. Each Letter of Appointment sets out the reason for the appointment being temporary, as recorded by the Tribunal at paragraphs 2 to 5 of the reasons.

At paragraph 6 of the reasons, the Industrial Tribunal make two important findings of fact:

"... that there was a genuine need for a series of fixed term contracts varying in lengths over a total period of two years. ... that the applicant knew what his position was quite clearly, because the letters [of appointment] had made plain the reasons for the successive appointments being temporary."

Before expiry of the last of the fixed term contracts, the Appellant and others applied for permanent positions at Southway Comprehensive School. Interviews were held in May 1994 for two permanent posts in the English department. Mr Fawn was unsuccessful. Following expiry of the last contract on 31 August 1994, it was not renewed. The Appellant was dismissed.

The Respondent treated the reason for dismissal as redundancy, and sent the Appellant a cheque for a redundancy payment which he returned. Before the Industrial Tribunal the employer argued in the alternative, that the reason for dismissal was some other substantial reason under Section 57(1)(b) of the Employment Protection (Consolidation) Act 1978. The Tribunal found that the reason was some other substantial reason and not redundancy. It is immaterial that an employer attaches the wrong label to its reason for dismissal, provided there was a set of facts known to the employee before dismissal, on which the Tribunal could discern the real reason for dismissal under the Act. See Abernethy v Mott, Hay & Anderson [1974] ICR 323.

The Law

The relevant principles can be found in the decision of this Tribunal in Terry v East Sussex County Council [1976] ICR 536, approved by the Court of Appeal in Fay v North Yorks C.C. [1986] ICR 133. Where it is shown that the employer had a genuine reason for employing the employee on a temporary contract or contracts and it was made known to the employee that he had been employed for a particular job on a temporary basis, as opposed to his having a reasonable expectation that his temporary employment would be renewed after the expiry of the last contract, that could amount to some other substantial reason for dismissal. If the Tribunal so finds, it must then go on to consider the question of reasonableness under Section 57(3) of the Act.

That is precisely the approach which this Tribunal took. It made the necessary findings of fact in paragraph 6 of the reasons, which entitled it to conclude that the Respondent had shown some other substantial reason for dismissal. As to reasonableness, the Tribunal found that the interviews for the permanent posts were fairly carried out; that the Appellant was kept fully informed of his position and that he was given all possible assistance to find other employment. They concluded that the dismissal was fair.

In this appeal, Mr Brabin on behalf of the Appellant, submits that the Industrial Tribunal's conclusions were perverse in the following respects:

(1) there was insufficient evidence to allow the Tribunal to conclude that the employer had a genuine need to employ the Appellant under a series of fixed term temporary contracts.

(2) that the interview panel did not know that the Appellant was teaching media studies and special needs. They did not ask him about their requirements at interview. They did not take account of his age (49 years) or consult him. In short, he was not given a fair crack of the whip. The Tribunal's conclusion that the employer had acted reasonably under Section 57(3) was perverse.

Taking the first point, there was evidence before the Industrial Tribunal that following the early retirement of the first Head, Mr Goddard, a temporary Head filled in, Mrs Mowforth, and a permanent replacement, Mrs Maddox, was not appointed until 1 January 1994. There was thus a limbo period until Mrs Maddox assessed the need for permanent staff in the English department. It seems to us that this factual background provided a basis for a finding of genuine need. Whether or not it did so was for the Tribunal to decide as a matter of fact. We cannot properly interfere with that finding.

As to the question of reasonableness, we note that the Appellant's Head of Department, Mr Alan Wilkins, was present as a member of the panel at the interviews held in May 1994. He had been the Appellant's Head of Department throughout his service at Southway, and may have been presumed to be aware of what subjects the Appellant had taught at the School. In his written application for the permanent posts, the Appellant lists only English History and Physical Education as subjects which he had taught in the past. Mrs Maddox and Miss Jenkinson, also members of the panel, gave evidence before the Industrial Tribunal and explained why the Appellant was not selected for a permanent post. The Industrial Tribunal accepted their evidence. The Tribunal also found that the Appellant was kept fully informed of the position. Mr Brabin argues that the Appellant was not told of the planned permanent posts. He learned of this through a bulletin. However, the obligation on the employer is to properly consider a temporary employee for a permanent post (see Beard v The Governor of St Joseph's School [1979] IRLR 144). He is not entitled to preferential treatment in the selection process.

In our judgment this Tribunal was entitled to conclude on the evidence before it, that taking the matter in the round, the employer had acted fairly. It follows that we are unable to characterise this Industrial Tribunal's decision as perverse in any of the ways formulated by this Tribunal in Stewart v Cleveland Guest [1994] IRLR 440. This appeal must be dismissed.