United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BLOCK (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether Dr Jones has an arguable appeal fit for hearing before a full Tribunal against a decision of an Industrial Tribunal held at London (South) on 18 and 19 July, which unanimously rejected his complaint of unfair dismissal, brought against his former employers, the Department of Health.

The Tribunal's decision is set out in Extended Reasons running to 23 paragraphs which was sent to the parties on 24 October 1996. We may take the relevant facts from the decision of the Industrial Tribunal.

Dr Jones was Head of a Division. He is a Grade 3 Civil Servant and was holding a very senior position. In 1993, the then Permanent Secretary announced a review of the Department of Health concentrating on, amongst other things, Public Health, Health Care and Social Care. This review recommended that four Divisions in the Public Health field be merged into two Divisions and that put Dr Jones' job in jeopardy.

Following the review the Permanent Secretary held individual meetings with each of the Grade 3 Heads of Division who would be affected by the restructure. At that meeting, broadly speaking, Dr Jones welcomed the recommendations and saw his future as head of one of the newly merged Divisions and he made his position clear to the Permanent Secretary. He had received a very satisfactory annual appraisal for the year 1 April 1993 to 31 March 1994. "Generally above normal" was the Civil Service description of his performance as an employee which, as the Tribunal said, is an assessment of the standard to be expected of an employee at such a senior grade.

However, as the Tribunal noted, the appraisal did not provide a complete record of the view which the reporting officer had of the employee's job performance, and during the course of the hearing, that person, the Line Manager, indicated a number of concerns which he had felt. They are listed in paragraph 9 (i) to (vi) of the Decision and do not need to be repeated here.

On 7 December 1994, a meeting was held to decide who should fill the two Grade 3 posts in the Division, and that meeting was attended by a number of people. They considered the Appellant's position and they considered that there were well-founded reservations about his ability to manage staff as required by the demands of the new post; they also considered that he did not have the ability to raise the morale of his staff during what would be a difficult period for the whole department. Whilst there was little criticism of his work to date, the panel concluded that the Applicant would not have been adept at identifying and handling the difficult political issues that would necessarily arise. They therefore concluded that he would not be appointed to the new job and a summary of their discussion and conclusions were recorded and the record was produced to the Industrial Tribunal.

On 5 January 1995 there was a further meeting between the Permanent Secretary and Dr Jones and during the course of that discussion the Permanent Secretary told him of the decision. He was told that the success or otherwise of the search for alternative work for him and for his future employment would depend on him being co-operative, and various options were thereafter considered and put to the Applicant, including a proposition that he should take a lower graded post, but carry with him his Grade 3 salary until he reached retirement age.

In paragraph 15 of the decision the Tribunal note that it might have been possible for the Applicant to carry out work of a Grade 3 Medical Information and Staffing post, but this post was filled and the Department of Health panel did not consider transferring or dismissing the incumbent in order to accommodate Dr Jones. In other words, they rejected the idea of what is colloquially known as "bumping". This was a period, the Tribunal noted, of radical change within the Department and they deemed it important to maintain continuity, as far as possible, for the benefit of the whole of the Department's staff.

Following a meeting on 6 January 1995, and there being no way in which they could accommodate Dr Jones' aspirations for continued employment within the Department, he was eventually given a notice of dismissal on 20 March 1995.

It will be appreciated from that summary of the facts that there was a reorganisation, undisputed, within the Department; that the allocation of posts that were available within the Department was based on performance-based criteria, that is, an assessment made of the performance of the various candidates for the available positions; and that Dr Jones was not selected for one of the two available positions on the grounds of the judgment made of his performance.

It will be apparent therefore that questions could be asked as to whether this was a redundancy situation as such; whether there was a reduction in the need of the business for Grade 3 employees, or whether the reason why Dr Jones came not to take up employment with the Department of Health related indirectly to his performance as an employee. Realistically, it seems to us, the Industrial Tribunal were entirely right to find, as they did in the Summary Reasons for their decision at paragraph 6, that the Applicant was dismissed pursuant to a reorganisation of the Department in which he had worked, without putting a more detailed label as to whether this was redundancy, misconduct, competence or some other substantial reason of a kind such as to justify dismissal. What was the crucial issue in the case, as it seems to us, was whether the employers in those circumstances had treated the employee fairly or not, and regardless of the precise label which they attributed to the reason for the dismissal.

All of us, when we looked at the decision of the Industrial Tribunal before the hearing began today, were of the view that this decision was unarguably justifiable on the face of it. It is a tribute to Mr Block, to whom we are extremely grateful, who has appeared under the ELAAS scheme, that he has raised before us an argument which merits consideration. It was his submission that the Tribunal may have erred in the way they approached the question as to what was the reason for the dismissal. He submitted to us that it may be that Dr Jones was not given a proper "crack of the whip" as to the reason for the dismissal; that, effectively, the Industrial Tribunal appear to have indicated to Dr Jones that they had a closed mind as to the reason for the dismissal before he came to give his evidence, and they had failed to accommodate his reasonable requests for Witness Orders and Particulars prior to the hearing.

It seems to us, with respect to those arguments, that having regard to the terms of the IT1, the Industrial Tribunal were entirely right to approach the question as to the reason for the dismissal in the way that they did. It is clear that what provoked the dismissal of Dr Jones was the reorganisation which was carried out in the Department following the review, which was conducted as a result of a decision taken by the Permanent Secretary in 1993. It seems to us that the Tribunal were realistic to direct their attention essentially to the question as to whether, in that circumstance, Dr Jones had been treated fairly or not fairly, having regard to equity and the merits of the case.

Having approached the task in that way, we do not consider that it is fair to criticise the Industrial Tribunal for shortening the argument which was presented to them at the Industrial Tribunal hearing. At the stage at which the Tribunal reached, after the employers had given evidence, they would have been in a position to know to what extent Dr Jones was essentially challenging what the employers were saying as to the reason for the dismissal.

In those circumstances it was not inappropriate for them, bearing in mind that Dr Jones was unrepresented, to encourage him to direct his evidence to the real issue between the parties, namely whether he had been treated fairly in the context of the reorganisation which was taking place.

As to the interlocutory proceedings which had taken place prior to the commencement of the Industrial Tribunal decision, we are troubled to see that the Tribunal appeared to have made an order which is simply incomprehensible, through some kind of clerical error (I refer to page 28 of our file, the order which was made, dated 26 June 1996). It is to be observed that the Tribunal did not expressly rule on Dr Jones' application for Witness Orders against two distinguished former (I think) Civil Servants and, at the Industrial Tribunal hearing itself, it is to be noted that Dr Jones did not make any further reference to that matter; that is the absence of these witnesses, or to the incomprehensible order which had been made by the Industrial Tribunal.

It was submitted to us that he did not feel able to take issue with that point because the Tribunal had indicated that it was not concerned with matters which took place after the dismissal. We have some difficulty in accepting that an intelligent litigant such as Dr Jones would have made the leap from one point to the other, but be that as it may, he did apply for a review and the Industrial Tribunal considered the question again and it seems to us very clear that they are saying in that review that the Applicant had every opportunity to raise matters relating to the witnesses if he wished to do so and, as they put it, it is too late now to attempt to introduce new evidence from new witnesses.

Accordingly, it seems to us that there is no reason for thinking that Dr Jones' application has not been justly or fairly considered, albeit that he is disappointed with the outcome of this decision. Despite the able submissions of Mr Block, which as I say, none of us would have believed to have been possible, having read the decision, we are not persuaded that there is an arguable point of law. We think there is none and accordingly, we must dismiss this appeal.