United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J FITZPATRICK (Representative) Mr J Pritchard Kent Law Clinic Eliot College The University Canterbury CT2 7NS
For the Respondent	MR J BACON (of Counsel) The Solicitor Kent County Council County Hall Maidstone Kent ME14 1XQ


 


JUDGE PETER CLARK: This is an appeal by Mr Wratten, the Applicant before the Ashford Industrial Tribunal, sitting on 19 June and 29 July 1997, against that Tribunal's decision to dismiss his complaint of unfair dismissal against his former employer, Kent County Council. Extended reasons for that decision were given on 31 July 1997.

It is first necessary to set out the background to the dismissal, which took effect on 30 November 1996, as found by the Tribunal.

The Appellant commenced employment with the Respondent in September 1971 as a Child Care Officer. He was then appointed Senior Social Worker in 1973 and Team Leader in 1976. That title was later changed to Group Leader.

In 1994, at a time when the Appellant was in Whitstable, certain allegations of sexual harassment were made against him by members of staff. As a result, a disciplinary hearing was held in August and September 1994. The decision of the panel, chaired by Mrs Askew, the Assistant Director Designate for East Kent, was that the case against the Appellant was proved. He was given a final written warning to be reviewed after 18 months and it was also decided that he should be redeployed into a position which did not require him to manage or supervise staff.

He exercised his right of appeal which followed two routes. As regards the final written warning, appeal lay to the Director of Social Services, Peter Smallridge, and as to the decision to redeploy, the appeal lay to a panel of members of the Council.

The transfer of the Appellant to another post was originally affected by offering him the position of Project Officer at Canterbury for a period of 18 months, after which he was to revert to a substantive post.

His appeal against redeployment came before a panel of Council members on 6 February 1995. The upshot was that Mrs Askew decided to withdraw the sanction of transfer rather than put witnesses through the ordeal of a further hearing.

As to the appeal against the final written warning, before that could be heard by the Director, arrangements were made to put the Appellant back to work as a Group Leader at Whitstable. It then transpired that some of his former staff refused to work with him and Mrs Askew told him that another Group Leader, Mr Ansell, would take on the responsibilities in relation to those members of the team who would not report to him. He was informed that that arrangement would commence on 27 February 1995.

He learnt that a Group Leader's post was being created at Herne Bay but was advised against applying for that by Ms Henry, the Senior Manager, Adult Services.

The appeal to the Director took place on 18 April and his appeal was dismissed. Thereafter the Tribunal found there were difficulties in relation to the Appellant's continued employment as Group Leader in the same capacity as before the disciplinary proceedings. As a result a meeting took place between the Appellant and Ms Henry in May 1995 when she offered him voluntary redundancy with an enhanced package. He decline that offer. At a further meeting on 19 June Ms Henry told the Appellant that he could no longer continue in the post of Group Leader and at that stage offered him a second option other than redundancy, that is, a Community Care Project Officer's post based in Canterbury. The alternative was early retirement to take effect from 30 September 1995. The Appellant wrote to Ms Henry on 30 June in these terms:

"Given that you insist on having my response by today to two very unsatisfactory options, I will have to opt for the Project Officer post but clearly this is not a post I would want under any other circumstances and in view of the fact no job description is available I would request a clause in the contract which would keep open for me the second option of redundancy in say 12 months time.

My acceptance is conditional on there being no other suitable options identified as a result of discussions taking place elsewhere and on my having a reasonable amount of time in which to leave my present post and transfer to the new one."

Ms Henry replied on 4 July, saying this:

"I have asked Personnel to issue you a contract for the Community Care Project Officer post and I attach the Job Description to this letter.

You ask about a clause in your contract relating to redundancy. I'm afraid I cannot agree to this as I see this post as extremely important and I don't foresee a circumstance in the near future where we would be looking at deleting it. If, in 12 months' time, you feel you would wish to explore other options then these can be discussed at the time."

The Appellant accepted the offer of the Project Officer's post and commenced in that job on 17 July 1995. Thereafter he instituted a grievance in December 1995 in relation to the way in which his appeal to the Director had been conducted. In June 1996 Mrs Askew recommended to the Director of Operations that the post of Project Officer held by the Appellant be deleted. The reason for this recommendation was that savings of some £3.5 million had to be made in the Social Services Department for the financial year 1996/97.

There was a meeting on 14 August 1996 between the Appellant and Ms Henry and Mrs Drawater when they informed him of the proposal to make him redundant and the reason for it. That was followed by a letter from Mrs Drawater of 16 August in which she said this:

"If these measures do not achieve a suitable vacancy, it is necessary for me to issue you with notice of termination of your employment on the grounds of redundancy. You are entitled to one week's notice for each complete year of service up to a maximum of 12 weeks. Your notice period would therefore run to the end of November and your last day of service with the Authority would be 30th November 1996."

The Tribunal found that steps were taken by Mrs Drawater to enquire as to whether there were any vacant post which would be suitable for the Appellant; none emerged. There being no suitable vacancy, the Appellant's employment ended on 30 November 1996.

By his Originating Application dated 27 February 1997 the Appellant challenged the reason for his dismissal put forward by the Respondent, namely redundancy. He summarized his case in this way:

"It is my case that Kent County Council were of a mind to dismiss me for some time before and that the decision to transfer me from the post of group leader, learning disability to Community Care Coordinator [another description of the Project Officer post] in July 1995 was made in the knowledge that this post was vulnerable to redundancy."

The Industrial Tribunal accepted that the position of Project Officer was more vulnerable to redundancy than was the Group Leader position held by the Appellant until the summer of 1995 but expressly rejected that Appellant's case that the post of Project Officer was created by the Respondent solely for the purpose of enabling the Respondent to terminate his employment. It follows, we think implicitly, and this is not challenged by Mr Fitzpatrick, that the Tribunal did not doubt the genuineness of Ms Henry's observation in her letter to the Appellant dated 4 July 1995 that she could not foresee a circumstance in the near future where the Council would be looking to delete the Project Officer post.

Accordingly, the Tribunal found that the reason for dismissal was redundancy. Against that finding there is no appeal.

The appeal instead is directed to the Industrial Tribunal's approach to the question of reasonableness under s.98(4) of the Employment Rights Act 1996.

Although the lynch-pin of unfair dismissal law and very familiar, we shall set out s.98(4) in full:

"Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

Next we set out the critical findings of the Tribunal in paragraphs 22-24 of their extended reasons:

"22. The circumstances referred to in section 98(4) of the Employment Rights Act 1996, mean the circumstances surrounding the dismissal. Such circumstances do not include the circumstances surrounding the disciplinary proceedings against the Applicant which took place in 1994 and their aftermath.

23. We find that the Applicant was unfairly treated in 1995 by the Respondent. The Respondent withdrew the transfer imposed at the disciplinary hearing, but then, when it transpired that it was not practical to put the Applicant back to work with his former team, they reintroduced the transfer through the back door by requiring the Applicant to take the Project Manager's position, with the termination of his employment as the only alternative. The Applicant chose, however, not to leave on the terms offered and to claim unfair dismissal then, but to continue in the Respondent's employment.

24. Having decided to remain in the Respondent's employment, the Applicant cannot raise the earlier unfair treatment when he was subsequently made redundant from the post to which he was transferred in the summer of 1995."

The Tribunal went on to find that the Appellant had been adequately consulted on his redundancy and that proper steps had been taken to seek alternative employment for him. In these circumstances they found that the dismissal was fair.

The principal point of law taken by Mr Fitzpatrick on behalf of the Appellant is that in paragraph 22 of their reasons the Tribunal misapplied the provisions of s.98(4) by impermissibly limiting the circumstances to be taken into account when determining whether the employer acted reasonably or unreasonably in treating redundancy as a sufficient reason for dismissal. He has developed that submission by reference to the observations of Sir Hugh Griffiths in Vokes Ltd v D C Bear [1973] IRLR 363, paragraphs 12 and 14, where His Lordship said this:

"Mr Irvine [Counsel for the Appellant employers] submits that the only 'circumstances' that the Tribunal are entitled to take into account are circumstances which relate to or surround the employer's grounds for dismissal and that, as he put it, the Tribunal are not entitled to take into account an employer's failure to mitigate the consequences of an otherwise fair dismissal.

...

We are unable to accept the submission that 'the circumstances' are limited to those directly affecting the ground of dismissal, in the sense submitted by Mr Irvine. 'The circumstances' embrace all relevant matters that should weight with a good employer when deciding at a given moment in time whether or not he should dismiss his employee. The subsection I focusing the Tribunal's attention upon 'the dismissal', that is, the dismissal on the 2nd March. The question they have to ask themselves is whether on the 2nd March the employer was acting reasonably in treating redundancy as a sufficient reason for dismissing Mr Bear on that date. The Tribunal are entitled to take into account all the circumstances affecting both the employer and the employee at the time of the dismissal."

We accept the proposition advanced as a matter of law. The question here is whether the Industrial Tribunal impermissibly fettered the exercise of their discretion in determining what were the relevant circumstances to be considered for the purposes of answering the question posed by s.98(4), or whether, on the facts of this case, they permissibly concluded that the events leading up to the Appellant's transfer to the post of Project Officer in July 1995 were irrelevant to the circumstances to be considered under s.98(4). It is essentially a question of construction of the Tribunal's reasoning, a task on which we embark bearing mind the well-established dictum that Industrial Tribunal decisions ought not to be subjected to fine-toothcombing in an attempt to erect a point of law.

Having considered the submissions of Mr Fitzpatrick and Mr Bacon we prefer those advanced by Mr Bacon.

In our judgment, reading the Tribunal reasons as a whole, and in particular paragraphs 22-24, it seems to us that the Tribunal were finding that on the facts of this case a line should be drawn under the unfair treatment afforded to the Appellant in 1995, which led to him being faced with the position that he was obliged to take the Project Officer job or be dismissed. The Appellant chose the former option. Thereafter he was genuinely identified for redundancy, which lay where it fell, on financial grounds. The Respondent engaged in a proper consultation exercise and took reasonable steps to seek alternative employment. In these circumstances the dismissal by reason of redundancy was fair.

The subsidiary point taken by Mr Fitzpatrick is that in paragraph 23 of the reasons the Tribunal confused the principles of constructive dismissal with the question as to what circumstances may be relevant for the purposes of the s.98(4) question. We reject that argument. The Tribunal was not concerned with whether the Appellant had lost the right, by delay, of leaving and claiming constructive unfair dismissal; he did not do so; they were making the point that by accepting the new post the unfair treatment which led to his doing so ceased to be relevant when considering the reasonableness of the genuine redundancy dismissal which occurred, for quite separate causes, in the following year.

In these circumstances, we have concluded that no error of law was made out in this Tribunal decision and, accordingly, the appeal must be dismissed.