United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R COHEN (of Counsel) Eaton & Co The Old Library 34 Darley Street Bradford W. Yorks BD1 3LH


 


JUDGE J HICKS QC: We give leave to amend the notice of appeal in two respects: first of all by the insertion of the word "not" in ground (iii) in the first line between "would" and "have chosen" and, secondly, by the replacement of the existing ground (iv) by the draft ground (iv) which has been handed up by Mr Cohen in manuscript and which reads:

"The Tribunal erred in failing to award any sum in respect of outstanding holiday pay notwithstanding the Respondent's admission that the Appellant was entitled to be paid ten days' holiday pay at the end of her employment."

We propose to order that the appeal proceed to a full hearing on amended grounds (iii) and (iv), so we need say no more about them, except that something needs to be said by way of explanation of what ground (iii) is in order to explain our view about grounds (i) and (ii).

The Appellant, Ms Fricker, had been employed by the employers, the Chartered Institute of Environmental Health Officers, from 22 June 1987 to 22 July 1994 and she had been head of training from 1991. It was clearly a substantial and responsible position with a final salary of £30,000 per annum. The employers were a charity funded by an associated commercial company and effectively depended for their income on two main sources, one being grants under covenant from that company and the other income received from the training courses which they provided and for which Ms Fricker was responsible in the sense of being the head of training, although not ultimately responsible as the senior executive. There was a financial crisis in relation to the prospective year 1993, first, because the grant from the company which had been expected to be £1.2 million was reduced to £214,000 and, secondly, because the governing body of the charity, on investigation, came to the conclusion that the income from training was reducing rapidly and that was a source of concern. In the event, Ms Fricker was suspended from 8 November 1993. Disciplinary proceedings were instituted but never reached a hearing because she was absent through sickness and unable to attend any such hearings, so that aspect was never resolved and it was not a basis and could not have been a proper basis for her dismissal. However, the result of the financial situation was that there were also bound to be a number of dismissals for redundancy and that was the basis on which she was, indeed, dismissed.

So far as that was concerned, her post was abolished. Nevertheless, clearly, it did not entail that automatically as a result of that it would have been fair to select her for redundancy, because there were other posts potentially available in the reorganization.

It was found by the Industrial Tribunal that in that respect - the failure to consult or make available offers of suitable alternative employment - the dismissal was unfair and that, indeed, had been conceded by the employers in the hearings before the Industrial Tribunal. The Industrial Tribunal nevertheless found - and this is the background to grounds (i), (ii) and (iii) of the notice of appeal - that there should be no compensation for that unfair dismissal because the Appellant would not have been re-employed, on the basis that she herself would not have wished to remain in the Respondent's employment, particularly in posts junior to that which she had previously held, which were the only ones which would have been available. It is against that background that she seeks to appeal under grounds (i), (ii) and (iii). Ground (iii) which, as I have said, we believe should go to a full hearing, is that the Tribunal erred in finding that she would have not have chosen to remain in the Respondent's employment for longer than a month, by failing to consider the chance that she might have. The point of that ground, as we understand it, is that it is arguable - and we agree that it is arguable - that on the Tribunal's finding on this point, in particular, in paragraph (iii) that she would not have wished to remain in the Respondent's employment, the Tribunal is addressing the matter as a question of fact to be decided on the balance of probabilities, rather than assessing the chance, however unlikely, that she might have remained in employment, and the fact that there may well have been some chance to be assessed is reinforced by the words of the Tribunal in paragraph 61, where they twice use the words "extremely unlikely" in relation to the same question. Something that is extremely unlikely, on the face of it, suggests a chance of a small percentage, perhaps, but of some percentage rather than of nil, whereas the finding that she would not have wished to remain in the Respondent's employment, at least arguably seems to be addressing the question: on the balance of probabilities, would it have happened or would it not, yes or no? That is the basis of ground (iii).

Grounds (i) and (ii), however, as Mr Cohen accepted, effectively amount to two ways of putting an attempted appeal against the finding itself on the basis of perversity. Of course, if ground (iii) goes ahead and succeeds, the whole matter will have to be looked at again and grounds (i) and (ii) will disappear but the question before us is whether they show an arguable ground of error in law which should go to a full hearing. Ground (i) says that there was not any or any sufficient evidence upon which they could reach that finding. While "sufficient evidence" is plainly a question of fact and not of law, that ground can be sustained only if there was no evidence upon which they could make that finding. We are quite satisfied on reading their quite full reasons that they do refer to some evidence on which they could have reached that conclusion and we see no basis on which it could be submitted that there was no evidence upon which they could make that finding.

Ground (ii) puts what is effectively the same point but picks up a reference in paragraph 61 of the Tribunal's reasons in which they say:

"... it was clear on the evidence, and in particular on a reading of the Applicant's letters in January and February 1994 ...".

Mr Cohen seeks to suggest that that means that they were really relying only on the letters and that, therefore, we or the Tribunal which hears a full hearing can simply look at the letters and see that they do not establish the proposition which the Industrial Tribunal reached. In our view that is an untenable and unarguable suggestion. It is quite clear that the Tribunal is not relying only on the letters. They are looking at the whole of the evidence and one is, therefore, back to the original question - can it be suggested that there was no evidence on which they could reach that finding. For the reasons we have already given, the answer to that is in the negative. There was some evidence and there is nothing before us, in our view, to justify a lengthy trawling through the whole of that evidence to see whether the Appellant could establish a basis for an appeal on the ground of perversity, especially as perversity is not expressly raised in grounds (i) and (ii) which, on their face, in so far as they allege any sustainable ground of law at all, contain in ground (i) an allegation of no evidence and in ground (ii) an allegation that the matter should be disposed of on the basis solely of the correspondence.

For those reasons we dismiss the appeal so far as it rests on grounds (i) and (ii) but, as we have already stated, we shall direct that there be a full hearing on the amended forms of grounds (iii) and (iv).