United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR K J CADOO (Employment Law Consultant) Instructed by: Ms C Woodhead The Legal Protection Group Ltd Marshall's Court Marshall's Road Sutton Surrey SM1 4DU
For the Respondent	MR KEITH BRYANT (of Counsel) Instructed by: Mr Philip Lott Senior Solicitor Association of Teachers & Lecturers 7 Northumberland Street London WC2N 5DA


 


LORD JOHNSTON: This is an appeal at the instance of the employer, Temple Grove School, against a finding of the Industrial Tribunal that the respondent employee, Mrs Heather Gorst, was both wrongfully and unfairly dismissed from their employment. The appeal is taken both against the finding of wrongful dismissal in respect of breach of contract, and unfair dismissal in respect of the employment law statutes.

The background to the matter is that a redundancy or a potential redundancy situation developed at the School by reason of a reduction in the number of pupils, and the proprietors determined that they had to embark upon a redundancy exercise. In general terms, the contracts of employment and particularly that of the respondent required the School to give one terms' notice in respect of any termination of employment. In this particular case the proprietors sought from the staff an agreement to detract from or reduce that period initially from 1st April 1996 at a meeting on that date, to 20th May 1996. It was common ground, a the tribunal so found, that that proposal was agreed to by all the staff and the notice provisions were therefore informally amended accordingly. On 20th May the School had a further meeting with the staff likely to be affected and sought their agreement for the further extension of time in which to carry out the selection for redundancy procedure. The issue in relation to breach of contract arises from what was said to be the consequence in relation to the particular employee, Mrs Gorst, of the request put forward at that meeting by the proprietors to extend the period by a further week. The substance of the Industrial Tribunal's decision in this respect was that they found that as a matter of fact the respondent had not agreed to the further extension of the notice provision, and accordingly when she was dismissed on the grounds of redundancy some four days later, she had not accepted the extension and therefore the employer was in breach of contract.

Mr Cadoo, who appeared on behalf of the appellants, submitted that effectively the tribunal had misdirected itself on that issue in relation to the evidence with regard to what should be taken from the agreed circumstances so far as what the School had sought to have achieved. In particular, he submitted that the tribunal had erred in determining that effectively by her silence she had not agreed to the extension of the notice provision. He submitted that properly understood, given the background in relation to the initial extension, her presence at the relevant meeting, her failure to react in any adverse or positive way to suggest she was not agreeing and the subsequent receipt of a letter from the proprietor which indicated, as she saw it, that the extension was being agreed to by all staff, was sufficient to require the Industrial Tribunal to hold that the contract had not been breached, and that she accepted the variation and that accordingly the decision of the Industrial Tribunal was wrong in law.

With regard to the issue of unfair dismissal, in this respect the Industrial Tribunal divided as between the members and the Chairman, the latter being in the minority. The majority determined that there was a redundancy situation and that given the agreed circumstances as to how matters had been continued in relation to the working of the School after the departure of Mrs Gorst, namely the use of a Mr Moore who was already employed by the School, to take on extra duties in the pre-prep department warranted the dismissal as being unfair in respect that that post (if that is the way to categorise it) should have been offered to Mrs Gorst, and because that did not happen, the dismissal was categorised as unfair. It is to be noted that the Chairman's reasoning on a differing position was that what in fact happened in the genuine and accepted redundancy situation, was that the School acted reasonably in as much that they had adopted a proper procedure and had not acted in any way unreasonably by not offering Mrs Gorst the post because if "However, if the Applicant had been offered the post, then there would not have been the desired effect as far as the Respondents were concerned" in relation to the saving of jobs or the lack of them in the redundancy situation.

Mr Cadoo's position was that the position adopted by the Chairman in the minority was correct for the reasons stated and accordingly in that context the finding of unfair dismissal should also be overturned.

Mr Bryant who appeared for the respondent argued in relation to the wrongful dismissal case, that essentially that what the tribunal were considering was a question of fact and they made positive findings as to the state of mind of the respondent and in particular had held positively that she had not agreed to the extended variation. He maintained under reference to certain authority that silence in itself could achieve nothing and there was nothing that could stated positively towards acceptance of the position simply because the respondent continued to work after the meeting in question.

With regard to the issue of unfair dismissal, Mr Bryant's position was that the finding of the majority was correct in as much that if one looked at the pool of staff which were being considered for redundancy, it should properly be regarded as the pre-prep part of the employment workforce and that within that category a proper diminution of work which was to be considered had only been reduced by half rather than a whole post by reason of the fact that Mr Moore was brought in to take the place of the redundant member of staff, the respondent. He therefore supported the position taken up by the majority of the Industrial Tribunal and asked us to uphold that the finding of unfair dismissal was correct.

Turning first to the question of wrongful dismissal, we have to say at once that we consider the issue to be one of fact which has been covered extensively and properly by particularly finding in paragraph 15 of the tribunal's decision. Within in that finding it is clear that the tribunal addressed the issue of the state of mind of the respondent and in particular looked at the fact that she did not react in any way at the meeting. The tribunal says that it:

"15 ... is not satisfied from all the evidence that the Applicant really understood what was being requested of her. The Tribunal accepts her evidence that she was in turmoil, and finds that she did not actively participate in the meeting."

It is perfectly clear to us from the findings of the tribunal it made, that they held as a matter of fact that she did not accept the extension and did not intimate that acceptance in any way by act or word to the School. We consider that nothing should be spelled out of silence in itself, and we are therefore entirely prepared to accept that upon the findings that the tribunal made, which they are entitled to do upon the evidence, the position before us is that as a matter of fact the tribunal have held that there was a non-acceptance by the respondent and that is sufficient to dispose of the case as far as is raised before us on any question of law.

Turning to the issue of unfair dismissal, we do not find this question quite as simple, but have come to the conclusion that the position adopted by the majority of the tribunal is correct, or at least sustainable and a reasonable one within the compass of their deliberations as the tribunal at first instance considering questions of fact. It is perfectly apparent to us that what was being considered by the tribunal was that the consequence of an accepted redundancy situation in relation to how the School would continue to run once the two employees, one had gone voluntarily, had been redundant. The fact that Mr Moore was brought in to carry out work within the department, suggests to us that what was in fact being diminished is not a whole post but half a post. That being so, it seems to us that the position of part-time work should at the time have been offered to the respondent and the fact that it was not done so renders the dismissal unfair under the general provisions of s.98 of the Employment Rights Act 1996.

We are therefore of the view that the tribunal in both respects reached a decision which it was entitled to reach upon the evidence and this appeal will be dismissed.