United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R NAYLOR (Representative)


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing has been to determine whether the applicant, Mr Hooker, through his advocate, Mr Naylor, has shown any arguable point of law in the Notice of Appeal which has been presented in relation to a tribunal decision which was sent to the parties on 14th April 1998. The hearing occurred on 10th February 1998 and the learned Chairman in the decision sets out what happened in relation to that hearing and the circumstances in which cases came to be changed by the respondents, the Children's Society.

Briefly, Mr Hooker was employed by the Children's Society, a charitable organisation, and he was a project leader there having been employed for some years. There had been two disciplinary problems. One occurring in 1994 and one occurring in 1996 which were investigated by the Children's Society. In relation to the first event, he was given what was described as a final written warning, and in 1996 there was a further disciplinary hearing where the person investigating the case thought that it was a serious matter but would in normal circumstances simply lead to an imposition of a first written warning for that offence, but because he was of the view that there was a linkage between what had happened in 1996 and what had happened in 1994, he thought it might be dealt with in a more serious way, possibly by dismissal. Accordingly, he did not impose any penalty at the time, and adjourned consideration of penalty for one month to see if the parties could find some way out which would enable Mr Hooker's services to be retained, but perhaps not in such a senior position. It appears that agreement was reached. That he would cease to be a project leader and become a project worker: a job which carries less responsibility, less pay and is graded at a lower grade.

The Children's Society has a procedure for dealing with people who are down-graded. They draw a distinction between down-grading in circumstances where staff accept alternative work at a lower grade, and circumstances where staff are appointed to a lower grade. It is not necessary for us to explore that distinction for the purposes of this appeal.

What happened following negotiations was that the Children's Society wrote to him a letter in which they said this:

"... your appointment to the post of Project Worker at Brownhills Family Centre which you commenced on 14 October 1996 for a period which will end on 31 March 1997 or with the completion of the Walsall reorganisation if later ... Your salary is protected in accordance with Section 22.3.9 of the Security of Employment Policy. Therefore your current salary of £21,351 (grade J, spinal column point 37) will be retained for 12 months and during that period you will receive any general cost of living awards. ..."

Other terms and conditions were set out in the attached statement of terms and conditions and Mr Hooker signed and returned those, indicating his acceptance as he had been requested to do. Subsequently there was a reorganisation which took place in 1997 as was anticipated by that letter. The Children's Society decided that the best way of dealing with the position was to throw everybody's job into the pool and to allow each of the job holders to apply for positions. The person who was least successful would lose his job.

The question arose as to what the reason for the dismissal was. The argument advanced on behalf of the Children's Society was that this was a redundancy situation. However, the Chairman spotted the fact that it was difficult to say that there was redundancy situation in circumstances where in fact there was the creation of an additional project worker's post which would indicate that the requirements for work of a particular kind done by Mr Hooker had not ceased or diminished. He therefore considered the alternative way that the case was eventually put, namely was there some other substantial reason of a kind such as to justify a dismissal. He concluded that the answer to the question as to whether the employers had acted fairly related to a view which had to be formed as to where the merits lay in a dispute between the parties as to the nature of the contract which had been entered into on the demotion.

The applicant was saying that he was entitled to retain his current salary of £21,351 because of the provisions of the Security of Employment Policy paragraph (b). The employers were of the view that they had got the wrong paragraph in the Policy, and that although the statement "Your statement is protected in accordance with Section 22.3.9 of the Security of Employment Policy" was correct, it was the interpretation of that and the effect it would have on his salary which was wrong. When they realised their mistake, they wrote to Mr Hooker on 5th February 1997 saying that as it was their own mistake, they would nonetheless continue to pay his existing salary until he was further redeployed under the Walsall re-organisation and what then happened would depend entirely on how successful he was in the redeployment exercise and what job he went into.

When the re-organisation occurred, Mr Hooker took the stand that he was entitled to retain the salary which he had previously enjoyed. The employers were of the view that he was not so entitled to retain the salary because paragraph (a) and not paragraph (b) applied. He had accepted alternative work at a lower grade.

The Industrial Tribunal construed the contractual documents and came to the conclusion, succinctly expressed in paragraph 3.9 that whilst the Children's Society had promised to protect his salary in accordance with Section 22.3.9 of the Security of Employment Policy, as a contractual promise, the statement as to what the interpretation of that policy was was not a contractual statement as the word "therefore" implied. That the following sentence was simply a statement of their understanding of the consequence of the application of the formula in section 22.3.9. Accordingly, they drew a distinction between the statement that his salary was protected and the application of that protection in the form of protection of salary for 12 months. On that basis, he concluded that the employers were fully entitled to take the view that Mr Hooker was unreasonably refusing to accept a job at a lower rate of pay which was the consequence which would have followed from his demotion, which he had accepted in the context of a disciplinary exercise.

On this appeal, Mr Naylor, I think, has raised two points in a helpful submission to us. The first is, he says, that this is neither a redundancy situation as the tribunal correctly decided, nor is it a dismissal for some other substantial reason of a kind such as to justify a dismissal. He says that the true analysis is that it was the applicant's conduct in 1996 which led to the disputed position on the new contract. Therefore, this was a conduct dismissal and therefore the tribunal failed to have regard to the normal considerations which they will take into account when considering whether a dismissal for conduct is fair.

It seems to us that that submission is unsustainable in the light of the history of the case so fully and succinctly set out by this Industrial Tribunal. We would wish to pay tribute to the clarity of this decision and the thought that has obviously gone into its preparation.

The conduct was the remote reason why the new contract was entered into. The dispute between the parties in 1997 was not backtracking to what happened in 1996, but related to the proper interpretation of the contractual provision in 1997. It seems to us that it is not right to say that conduct was the reason, although I accept that but for the applicant's conduct, no question of demotion would have arisen, but that is not sufficient. It is not a causa causans it is a causa sine que nom.

The second argument is that the Industrial Tribunal erred in law in their conclusion that there had been a mistake in the letter. What Mr Naylor would say is that this was not a paragraph (a) case but was truly a paragraph (b) case as the applicant was asserting before the Industrial Tribunal.

With respect, we consider that that point is not truly arguable. The parties had intended that there should be a demotion. It was intended that the demotion should be done on the basis of an acceptance of alternative work at a lower grade than that which he enjoyed before. That was the essence of the demotion and the agreement which was arrived at between the parties as an alternative to the risk that he would have been dismissed. In those circumstances, it was a paragraph (a) case as the tribunal accepted. Therefore, there was simply an error in the calculation of the pay which was acknowledged by the employers, but did not alter the effect of the contractual term in the long term. As the letter of 5th February made plain, the concession through mistake was only to remain in existence until the re-organisation was effected. Accordingly, we are of the view that the Industrial Tribunal have not erred in law. On the contrary, we are of the view that they have reached the right conclusion on the material before them and in their construction of the contractual obligations.

Accordingly, we consider that the appeal is not arguable and we would dismiss it, but would like to pay tribute to Mr Naylor's able submissions.