United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


MR JUSTICE HOLLAND: Mr Patrick Reynolds is of Irish origin and for a period of time, terminating on 31 July 1996, he was employed by the London Borough of Southwark.

By way of an IT1 dated as long ago as 17 October 1996 he complained that he had been unfairly dismissed by the Borough. He complained further of racial discrimination.

After a tangled and prolonged procedural history the matter finally came for adjudication before an Employment Tribunal held at Ashford on and between 10 and 13 August 1998. In the event the Tribunal dismissed both his complaints. He appeals against those findings to this Tribunal, although now that the matter has finally come for a preliminary hearing it is apparent that the appeal is being pursued, understandably, with respect to unfair dismissal only.

Turning back to the way in which the problems arose they are very briefly as follows. At the material time Mr Reynolds held the position of Team Leader, Community Partnership. The Borough had arrived at a decision to restructure the relevant parts of its organisation with the result, as the Employment Tribunal found, that that position became redundant. There was therefore the problem of finding alternative employment for him, if such existed, within the ranks of the Borough's employees.

Along the way the Applicant applied as an internal candidate for two positions. Those positions were Principal Equalities Officer and Principal Community Development Officer. It was decided that he should be interviewed on 7 May 1996 for both such positions. As to what happened during that interview the Employment Tribunal made findings as follows:

"15 (17) The Council's procedure for interviewing and selection requires that each individual panel member complete an assessment form scoring 0, 1 or 2 against the specified criteria. The individual scores from these forms must then be collated onto one master assessment sheet. There has been no evidence that this procedure was carried out correctly in the case of this Applicant, and, despite numerous requests from this Applicant, the Respondents have only ever produced the two sheets shown at pages R159 and R160, together with a copy of Mr Profitt's own notes taken at the interview commencing at R592. The Applicant has alleged both during this hearing and in previous correspondence that the documents R159 and R160 are forged documents. We do not find that they are forged. However, it is clear that certain scores on these forms have been altered and the Respondents agree that this did happen. The forms are signed by Russell Profitt, but the other writing on the forms was done by Sarah Hedley. The initial scoring on the forms was by Sarah Hedley, but the alterations were then made by the interviewing panel to show a joint panel view of the overall scores. The results of this combined scoring was that in each case the Applicant scored 0 for experience and the decision was made not to appoint him to either post. On page 159 the score for 'knowledge' appears to have been changed from 2 to 1, and on page 160 the score for 'knowledge' appears to have been changed from 1 to 2. It was the panel's view that the Applicant did not have the appropriate level of management experience and expertise required for the new posts."

Thus it is, taking the matter shortly, that his application as an internal candidate for those two posts failed. Thereafter, there were steps put in place with a view to seeing whether the Applicant could be redeployed within the Borough staff. For reasons that we need not presently go into, those steps came to nothing and in the result there appeared to be no way in which, as the Tribunal found, the Applicant could be employed within the Borough and thus it was that his employment ended on 31 July 1996.

The Employment Tribunal having found the facts (with a clarity to which we pay tribute) then went on to record, faithfully and carefully, the submissions that were made as to unfair dismissal and for that matter, as to racial discrimination.

Turning to the findings with respect to unfair dismissal, the Tribunal at paragraph 27 found, with respect to the interview, as follows:

"27. We are disturbed by the Respondent's failure to produce all the relevant score sheets and the relevant notes taken at the interviews. It was clear that the Applicant was enquiring about the scoring, within an hour and a half of the ending of the interview, and the Respondent has produced no satisfactory explanation to us to explain the absence of the score sheets. The Applicant has rightly criticised the two sheets which have been produced. We do not accept that they are forged documents, but nevertheless it is clear that the figures have been altered and the Respondent's evidence as to who came to make the alterations has been unsatisfactory. The Respondent's inefficiency and negligence in this respect is deplorable, and it is not surprising that this has given the Applicant great cause for complaint. Furthermore, the reasons given to the Applicant for his failure have been inconsistent in detail and have again fuelled the Applicant's grievance."

With that trenchant finding available to the Applicant the Employment Tribunal then had to apply its mind to the role of that finding in the overall adjudication; that is as to whether the dismissal some time later on 31 July was unfair. As to this the Tribunal went on as follows:

"28. His actual grievance was dealt with properly and he makes no complaint about the hearing. The delay in producing the final result appears to have been due to the Applicant's own union branch secretary, Denyse Whillier, and we cannot find any unfairness merely because of this delay.

29. The Applicant also complains about the failure to find him alternative work. In this, his complaint has much less foundation, since the failure falls largely at his own door. The Applicant was told about the redeployment services available to him and was told to complete the relevant form. He failed to do so, and consequently, the Respondents took no action for some time. Eventually, when the Applicant was reminded, he did complete the form, and he did then receive notification of various posts which were available. However, the Applicant chose not to enquire further about those posts, nor did he enquire about salary protection, which is something the Respondent Council did operate. We find no unfairness here.

30. We are satisfied that there was a genuine restructuring which did result in the disappearance of the Applicant's post, making him potentially redundant. The Respondent had hoped to avoid any redundancies, and expected to be able to redeploy those involved. The lack of paperwork surrounding the interview process is a matter of which the Respondent Council should be ashamed, but nevertheless, the evidence which we have heard and which we accept was that, at the end of the day, the Applicant lacked the necessary experience to suit him for the new posts.

31. We find that the Applicant was fairly dismissed and his application in this respect is dismissed."

Turning then to the way in which the matter is currently put, we have the advantage of a skeleton argument prepared on behalf of Mr Reynolds, which sets the matter out well.

The essential thrust of the skeleton argument is to this effect. It is that the Tribunal failed properly to direct itself as to the significance in the history as a whole, of the defects that it found with respect to that interview of 7 May 1996. It submits that the Tribunal should have found that the defects, outlined so trenchantly in its Extended Reasons, should have served to constitute a factor bearing upon the unfairness of the dismissal and the essential point made is that, on the face of it, the Tribunal does not seem to have approached the matter in that light.

For our part we have carefully considered the Extended Reasons. It is apparent that they are of exceptional quality, reflecting a very careful analysis of the evidence that was put before it over four days. It is readily apparent from those reasons that the Tribunal went into the matter systematically, carefully evaluating the evidence that was put before it. Plainly, one of the matters that it had to evaluate was that which happened on 7 May and the impact that that had upon the dismissal of 31 July. That was essentially a jury decision. It was essentially a decision for the Employment Tribunal acting as the industrial jury, having the benefit of the evidence put before it, having the opportunity to consider the impact of all the aspects of that evidence.

We are entirely satisfied that this Tribunal did give proper consideration to that which happened on 7 May and to its impact upon the decision to dismiss that was taken later. We draw particular attention to the findings that were made, and cited above, as to the role of that interview and as to the significance of the errors that were identified. The crucial finding, of course, is that the evidence that the Tribunal heard and which it accepted, to the effect that the Applicant did lack the necessary experience to suit him for those two posts for which he had applied. All those are findings which are findings for the Employment Tribunal. They are not findings with which this Tribunal can become directly concerned.

We are here to consider appeals based on matters of law. We can find no matter of law that is properly raised by the decision of this Employment Tribunal. Thus it is, as we have explained to Mr Reynolds, we have no basis upon which to send the matter forward for a hearing at which the Borough will be represented. Thus it is that we are driven now to dismiss this appeal. There is no basis upon which we can allow it.