United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS JOANNA HEAL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE BELL: This is an ex-parte preliminary hearing in respect of an appeal brought by Miss Faris against a decision of an Industrial Tribunal held at London (North) which was entered in the register on 15 September 1997, after a hearing on 1, 2 and 3 July and then a further meeting in Chambers on 30 July 1997.

The Applicant, Miss Faris, was employed by the Respondent, Riverside Community Healthcare Trust, or its predecessors, from July 1991 until July 1996. She claimed that she was unfairly dismissed from her employment by reason of her unfair selection for redundancy.

The particular reasons for the allegation of unfairness was that the Respondent failed to offer her alternative employment, and failed to follow procedures dealing with her grievance complaint, in addition to a number of other allegations of bad faith and misconduct in the Respondent's treatment of her. The Respondent accepted that Miss Faris was dismissed for redundancy, but maintained that it followed proper procedures before she was dismissed. It rejected the other specific charges made against them.

In its extended reasons the Industrial Tribunal went on to consider the evidence and material before it. In the course of that consideration it made criticisms of the Respondent Authority, particularly with regard to the contents of a written reference for Miss Faris in respect of the Authority's failure to make sufficient efforts to contact her when she was sick, when the whole question of redundancy was being considered, and in respect of the Authority's rather disinterested attitude to possible suitable alternative employment for Miss Faris, once her original post disappeared as a result of a significant reduction in finance.

The Industrial Tribunal, in our view, directed itself correctly as to the law which applied. It made various findings, including findings as follows:

"Miss Faris maintains that she was dismissed not because of the redundancy situation, but because of the Respondents' 'hidden agenda' .... we conclude that it may well be that such an agenda existed, insofar as Miss Faris had incurred the disapproval of her immediate line Manager and her Superior Manager. .... Therefore we find that although the redundancy was a genuine one, it was fortuitous from the Respondents' point of view. ... Once the redundancies had been declared, apart from the failure of the Respondents to make a home visit to Miss Faris, we cannot fault the selection process itself. That is not true of the obligation to find suitable alternative employment within the organisation. While we accept that the Applicant did not make it easy for the Respondents, they for their own part did not in our view make sufficient efforts to contact Miss Faris to ascertain her wishes with regard to employment. .... The monitoring of internal vacancies was not undertaken by the Respondents with any enthusiasm. It seems to us that they were just going through the motions. .... we find that the Respondents failed to carry out their duty to seek suitable alternative employment for Miss Faris. There was a feeling among Miss Faris's managers that they would be glad to see the back of her - indeed the decision that she should go on garden leave when she was fit to return to work confirms that. There is some merit in Miss Faris's 'hidden agenda' theory and for the above reasons we find the dismissal to be procedurally unfair."

The Industrial Tribunal therefore went on to consider matters as they affected compensation for unfair dismissal. At the very beginning of that consideration it referred to the guidance given by Lord Bridge in the case of Polkey and continued:

"... we must estimate the chances of Miss Faris not being dismissed if the procedures had been applied in the spirit rather than the letter of the law and if genuine efforts had been made to find out Miss Faris's wishes and endeavour to satisfy them. She said that had she been offered a job at a lower grade, she would have accepted it, and we believe that. In his submissions Mr Stilitz states that there might have been a 20% chance that a suitable administrative job at Grade 3 would have become vacant before Miss Faris was dismissed. We do not know on what basis Mr Stilitz arrived at that figure since the Respondents did not produce any evidence as to the availability of lower grade jobs. .... Taking a broad commonsense view of the matter we consider that the likelihood of Miss Faris remaining with the Respondents, albeit in some other department or some other job and grade, would have been 50% had the proper steps been taken in the spirit rather than the letter of the legal requirements. Therefore the compensatory award made to her that is to be reduced by half."

The Industrial Tribunal then went on to consider the Respondent's contention that Miss Faris had failed to take reasonable steps to mitigate the loss arising from her unfair dismissal. In fact, it found that she had not failed in her duty to mitigate, but the evidence which she considered in that respect is of interest for a reason which will become apparent. The Industrial Tribunal said:

"Miss Faris produced evidence of an enormous number of job applications following the termination of her employment last July. She produced dozens of letters from prospective employers. .... She told us that she had attended 150 interviews in the 12 month period up to the date of the hearing. That is an extraordinary effort and even more extraordinary that she received no job offers. Equally extraordinary is the fact that the Respondents did not receive any requests for reference from prospective employers during that period and Miss Faris explained her reluctance to allow employers to contact the Respondents through fear that they would either give her an unfavourable reference or make disparaging remarks about her. It could be argued that by failing to allow prospective employers to contact Riverside, Miss Faris may have given such employers a reason for rejecting her application, but the evidence put before the Tribunal of Miss Faris's efforts to find a job are overwhelmingly convincing and we do not think that she has failed in her duty to mitigate."

The Industrial Tribunal went on to consider reinstatement and re-engagement which it considered not to be possible in the circumstances which it set out. It then turned to compensation, finally, saying:

"The Tribunal was impressed at the very competent and intelligent way in which the Applicant presented her case. Now that she has achieved a finding and an award in her favour, we are confident that she will be able to put this unhappy episode behind her and obtain new and satisfactory employment in the very near future. For this reason we have limited future loss to three months from the date of the hearing. The calculation of compensation is as follows ..."

The Industrial Tribunal then did appropriate calculations reducing what would have been the award by 50% for the "Polkey reduction" and coming to a figure of £4,510.20p.

Miss Faris has, in her grounds of appeal, raised a number of challenges to the Industrial Tribunal's finding of fact and conclusions and has complained of lack of information and failure to disclose documents on the part of the Respondent. In fact, we could only allow an appeal on the basis of the matters raised in that way, if they revealed a point of law, which in that context would mean raising a real argument that the various decisions of the Industrial Tribunal were perverse, that is not decisions which a reasonable tribunal, properly directed, could reach.

In our view the Industrial Tribunal was perfectly entitled to reach the conclusions which it did and we see no tenable argument on the Appellant's behalf, save in two respects which Miss Heal, to whom we are grateful for representing Miss Faris at this moment, has put before us. Miss Heal has explained that she does not have instructions to abandon all the other grounds of appeal, but she concentrates on two points of appeal which she contends are arguable.

The first one appears as grounds 5 and 6 in the Notice of Appeal, which attack the 50% reduction by reason of Polkey. Miss Heal argues that there was no evidence upon which the Industrial Tribunal could make that reduction or come to the conclusion that a 50% reduction was appropriate. There was no evidence of availability of lower grade jobs and no evidence of other jobs at all. That that was the situation on the evidence appears from statements which the Industrial Tribunal made, and which we have already quoted, when it said:

"We do not know on what basis Mr Stilitz arrived at that figure [that is the percentage chance he put forward of a suitable vacancy] since the Respondents did not produce any evidence as to the availability of lower grade jobs."

Accepting as one must that in pursuance of Polkey one often has to take a broad-brush to the problem and that certainly this Industrial Tribunal was entitled to take a broad commonsense view, we nevertheless consider that it is arguable (and we say no more than that) that it needed some evidence upon which it could base a reduction, and that it is arguable that there was no such evidence in this case.

The other point which Miss Heal makes, appears best described in grounds 12 and 13 of the grounds of appeal. It attacks the limitation of the award for future loss to 13 weeks. Miss Heal has pointed out that the Industrial Tribunal was considering the history of the Applicant's relationship with her employers up to a date a year before the hearing. It had referred to the fact that Miss Faris had made very many applications for jobs.

Miss Heal argues that the reasoning behind limiting the future loss to three months appeared to be, or was arguably, reading the terms of the decision, that Miss Faris had not been giving the Respondent as a referee when applying for other jobs. Miss Heal argues that that failed to take into account the fact which the Industrial Tribunal had found, of a very unhelpful reference in the past. Miss Heal argues that the Industrial Tribunal missed out one logical step in assessing future loss, that if Miss Faris did use the Respondent as a referee that would have been unlikely to have helped her. She says, in fact, that later events have underlined that position.

It may be that if this appeal goes ahead Miss Faris will face the problem of the authorities which limit the extent to which events after an award can be referred to and challenge to an award; authorities which say that the award of the Industrial Tribunal has to be judged on the material which was available to it at the time of the award, but, in our view, the point as expressed this morning by Miss Heal is arguable.

In our view this appeal should be allowed to proceed on grounds 5, 6, 12 and 13, but for the reasons we have given it should be dismissed in relation to other grounds which are not related to those four grounds.

We have this to add. We have already referred to the difficulty which Miss Faris may face on appeal in seeking to bring into the forum events since the Industrial Tribunal made its award. If the original Industrial Tribunal was prepared to countenance a review and did hold a review Miss Faris would not face or would not necessarily face that difficulty. Rule 11 (1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule 1 Rule 11 says that:

(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that -

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or

(e) the interests of justice require such a review."

Rule 11 (4) says:

"(4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full."

But Rule 15 (1) says:

"(1) A chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired."

It is not, in our view, for us to offer a view on what course the Chairman or the Industrial Tribunal should take if Miss Faris applies for a review. We merely draw her attention to the presence of those provisions and the possibility that the Chairman or the Industrial Tribunal might be prepared to hold a review upon which it would be possible to bring before the Industrial Tribunal events which Miss Faris says have come to pass since its decision, including she would say, the loss of a job which was offered to her, because of an unfavourable reference supplied thereafter by the Respondent Authority.

We move on to consider whether there should be any directions in this matter. There was to be an application for us to consider further documents upon this preliminary hearing. We read them de bene esse before we came in. We consider that there should be some provision in relation to mutual discovery of any documents relevant to the grounds of appeal which remain. The appeal should be listed as Category C with a time estimate of one day.

It remains only to add that we are extremely grateful to Miss Heal for her assistance this morning, and for the very clear way in which she put forward the potential arguments on the four grounds of appeal which we have allowed to go ahead to argument.