United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS H GOWER (of Counsel) Veale Wasbrough Orchard Court Orchard Lane Bristol BS1 5DS
For the Respondent	MR N RANDALL (of Counsel) Reynolds Porter Chamberlain Chichester House 278-282 High Holborn London WC1V 7HA


 


JUDGE J HICKS QC: Mrs Mullen was a junior school teacher at the Mount Carmel School, which was a school that had originally been a convent school and had in 1991 come under the management of a Trust - the Mount Carmel School Charitable Education Appeal Trust - but retained a strong connection with the Roman Catholic Church and, as the decision of the Tribunal puts it, a strong Catholic ethos.

There came a time when the numbers were falling and the Governors decided to reduce the number of teaching staff (for reasons which will appear, we put it in that neutral form, without saying anything about employment). In the event they decided that a reduction of one was necessary and, as the Tribunal find, that the pool for selection of the one person to be dismissed for redundancy should be the teaching staff, excluding two nuns who were on the teaching staff as the remaining members of those nuns who had been the teaching staff when the School was a convent school, excluding also the head teacher and excluding also a person who was a part-time physical education specialist and required for health and safety purposes. The criterion adopted in selecting among the remaining pool was last in, first out, and that pointed unequivocally to Mrs Mullen and she was, in due course, dismissed on that basis.

Her application to the Industrial Tribunal for compensation for unfair dismissal was upheld by the Industrial Tribunal and the question we have to consider is whether the Industrial Tribunal erred in law in reaching that decision and what, if that is the case, we should order.

The first ground of appeal advanced by the employers, who were the Respondents below, can be approached best by comparing two passages in the reasons of the Industrial Tribunal, and the background to those conclusions is that there was a finding that the nuns were not employed under contracts of employment. We have to say that it is not at all clear on what detailed basis that conclusion is reached. It seems, as far as the reasons are concerned, simply to be an adoption of a piece of evidence from Mr Lomas, the Chairman of the Governing Trustees, that the nuns did not have what he called "contracts of employment". Standing alone, that might mean a number of things from presumably a lay person, in the sense of not a lawyer, because it is very common for lay persons to say that there is no contract of employment when what they mean is that there is no written document called a contract of employment, without addressing the question that a lawyer would ask, is there a contractual relationship between the two parties? However, for our purposes, we think we are not entitled to go behind the finding of the Industrial Tribunal that the nuns were not employed under contracts of employment by the charitable trust who were the employers of Mrs Mullen and the other teachers.

On that basis the Tribunal make the findings which are relevant to this ground of appeal. First, in paragraph 33 they say that:

"The Tribunal accepted that there was a redundancy situation as defined in Section 81(2)(b) of the Employment Protection (Consolidation) Act 1978 at the date of dismissal of the applicant particularly with regard to the Junior School where there had been a very severe diminution of entrants to the School and this required that the staff should be reduced by one member ..."

Having made that finding the Tribunal then in paragraph 34 go on to consider the question of the pool of teachers who should be considered for redundancy and accept the exclusion of the headmistress and the specialist physical education teacher but reject the propriety of excluding the two nuns. We shall have to come back under a different ground of appeal to the precise terms in which they reach that final conclusion but for the purposes of the first ground the point may be put in this way in the form of a dilemma: when the Tribunal accept that there was a redundancy situation which required the staff to be reduced by one, did they, in their reference to the staff, mean employees under a contract of employment or did they mean the whole teaching staff, including the nuns. If they meant the employees under the contract of employment then Miss Gower, for the employers, says that having reached that conclusion it cannot be right to bring back consideration of the nuns into the question which of the employees shall be dismissed. If, on the other hand, the finding of the Tribunal that the staff should be reduced by one should be interpreted (which, on the face of it, seems more likely) as meaning that the whole teaching staff , including employees and nuns, should be reduced by one, then plainly the Tribunal erred in law in applying the wrong test of redundancy, because the definition of redundancy in s.81(2)(b) for present purposes, is that:

" the requirements of [ in this case, the School] for employees to carry out work of a particular kind ... have diminished ..."

It is quite clear that the test is, has the requirement for employees diminished, and therefore, if the Tribunal was simply finding that there was what they call a redundancy simply on the basis that there was a diminution in the requirement of total teaching staff, they were applying the wrong tests, asking themselves the wrong question and, therefore, not in position to give a valid answer.

In our view that simple dilemma disposes of this point. If the Tribunal in finding a redundancy situation were looking at the whole staff they must have erred in law for the reasons that we have just explained. If, on the other hand, there truly was a finding that in the terms of s.81(2)(b) the requirements of the School for contract employees had diminished then, although there is no authority on the point which either Counsel refers to, it seems to us quite plain that when it comes to selection as to which person shall be dismissed in that situation, it cannot be right to bring back into consideration persons who did not form part of the decision that a redundancy situation had arisen, and persons moreover not within the protection of the Employment Protection (Consolidation) Act 1978. As I have said, neither Counsel was able to point us to any direct authority, but Miss Gower reminded us that there is clear authority and - we need not go to the particular cases that she cited to us - that there is a redundancy situation, nonetheless genuine, because it has resulted from the decision of an employer to replace employed staff by, for instance, machines or, for instance, sub-contractors doing the same tasks. All that goes to support what seems to us to be the plain intention of the Act that, having considered whether there is redundancy in the sense of a diminution in the requirements for employees, the selection will be among employees. That selection itself is, of course, subject to the requirements of s.57(3), but we do not see how the general requirements of reasonableness and fairness enjoined by s.57(3) can, in a sense, reverse or blur the prior question of whether there has been a redundancy and who is affected by it.

That suffices, therefore, without more to lead us to the conclusion that this appeal must be allowed and the case remitted, because it is quite clear that we are not in a position to make the finding which the Tribunal failed clearly to make one way or the other whether there was a redundancy situation looking, as one should look, at the question of a diminution in the requirement for employees properly so called, but we think it is necessary to consider the second ground of appeal because that may affect the question whether the application should be remitted to the same Tribunal or a different Tribunal.

The second point arises in this way. In paragraph 34, when turning to the question of the selection process and the choosing of the pool, the Tribunal, having accepted the exclusion of Mrs Debio, the headmistress, and Mrs Nelson, the physical education teacher, said this:

"... the Tribunal did not, in the circumstances, think it was fair or proper that the two nuns who taught in the Junior School should have been excluded from the pool.."

They then give reasons for that and a little later say, having accepted the importance of the Catholic ethos of the School:

"... the Tribunal found that that could have still be maintained if one of the two Junior School nuns were to resign as it would have left two nuns in the school in any event."

The point of the last phrase is that in the senior section of the school there was a teaching nun, so that the total reduction, taking senior and juniors together, would have been from three to two, not from two to one. The Tribunal continues:

"Accordingly, the Tribunal considered the matter in the light of Section 57(3) of the Employment Protection (Consolidation) Action 1978 and concluded that, in these circumstances, it was not fair or reasonable for the School to exclude the nuns from the pool of persons to be considered for redundancy and accordingly, the dismissal of the applicant was unfair as the dismissal of the applicant was not, in the opinion of the Tribunal, within the range of conduct of which a reasonable employer should have adopted in the circumstances."

It is common ground between Miss Gower for the employers and Mr Randall for the employee, and familiar to this Tribunal, that the test to be applied by an Industrial Tribunal in considering fairness and reasonableness under s.57(3) of the Act is not whether the course adopted by the employer is the one which the Tribunal would have adopted, nor whether the course adopted by the employer is one which the Tribunal consider the fair and reasonable course to adopt. The question is whether the course adopted by the employer was within the range of courses which a reasonable employer could have adopted in all the circumstances and the issue between the parties on this is quite simply, has the Tribunal shown by the first two extracts which I have read from paragraph 34, as Miss Gower submits, that they are substituting and, therefore, erring in law in substituting, their own judgment for that of the employer or are they, as Mr Randall submits, showing by the last passage that they are applying the right test.

We take fully into consideration that the reasons of industrial tribunals are not to be examined with over-exact or over-critical analysis and if the true or fair interpretation of paragraph 34 were that the Tribunal had been engaged in a two-stage process, the first asking what they would have done and then standing back and saying, "Yes, but regardless of what we think, was this within the range of conduct of a reasonable employer" then we accept that they would not have erred in law, although we are bound to say that the more usual and, perhaps, safer practice, is for the Tribunal not to ask or answer, certainly not to answer, the first question at all. We also understand and give full weight to Mr Randall's submission that one can read paragraph 34 as being divided into those two parts if one, as it were, draws a line immediately before the words:

"Accordingly, the Tribunal considered the matter in the light of Section 57(3) of the Employment Protection (Consolidation) Act 1978 ..."

and regards what goes before that as being preparatory only and what follows that as being a separate assessment of the second and correct question as to whether the employer's conduct was within the fair and reasonable bracket of employers, but we have come to the conclusion that to read the reasons in that way is really itself to apply too precise, or perhaps even pedantic, mode of construction of what the Tribunal was really saying. The clear impression given to us by the paragraph read as a whole (and reread a number of times, as we have very properly been asked to do by the advocates in this case) is that the Tribunal did make up their own mind as to what was the right course for the employers to follow and carried on from that without any clear transition on the face of the reasons - without any indication of any clear change of approach in their own minds - to a formulation of the result which, of course, follows the correct test but which, it seems to us, quite plainly is not really a fresh and objective assessment of a different question. We have, therefore, come to the conclusion that the Tribunal erred in law in that respect also.

In those circumstances, since the Tribunal fell into that error as well as into the first, which we have identified, we have come to the conclusion that the most satisfactory course is to remit this application to a differently constituted Tribunal and, in those circumstances, it is not necessary to consider the third ground of appeal raised by the employers, which concerns the question whether there was real consultation about the possibility of the employment of Mrs Mullen in a new kindergarten which was to be formed in Autumn 1995. The finding of the Tribunal as to that was that Mrs Mullen could not be considered as the head of that new kindergarten because the head would need to be a professionally qualified person in terms of qualifications which Mrs Mullen did not possess, but the Tribunal go on to say that there was no real discussion whatever with regard to the possibility of any other employment of the kindergarten and the difficulty about that, which Miss Gower submits amounts to a misdirection, is that nowhere in the recital of the evidence or in the findings does it appear that there was any other teaching position in the new kindergarten. So far as the matter is dealt with at all it is only in the recital of Mr Lomas' evidence, in a sentence in which he says that it was necessary to obtain a fully qualified and experienced person to be head of the proposed new nursery school and there would be no classroom position thereafter. Those cryptic words may mean that the head was to be the only member of the teaching staff of the kindergarten or they may have some other meaning which is not apparent to us. Whether, in those circumstances, the Tribunal was justified in finding that there was a lack of adequate consultation, we should have had to decide if that were the sole matter before us but, in the circumstances, since there is to be a complete rehearing by a differently constituted Tribunal, there really is no need for us to reach a conclusion on that matter. We have no doubt that the Tribunal which deals with the matter will make appropriate findings and reach its conclusion as a result of those findings and, in any event, as the matter was put forward by Miss Gower for the employers and Mr Randall for the employee, this particular ground may have very little practical significance in any event since the question on the issue of compensation, which remained unheard, would have had to address the question what were the chances that Mrs Mullen might have obtained any such employment if it were available.

In the result, therefore, we allow the appeal and remit the application for hearing by a differently constituted Tribunal.

Mr Randall has applied for leave to appeal against our decision on the first of the grounds which we have considered, on the basis that there is no direct authority on the point. There is no direct authority on the point but it has seemed to us a clear matter and we do not consider that we should be justified in giving leave to appeal.