United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS A MORGAN (of Counsel) Instructed by: The Borough Solicitor London Borough of Camden Town Hall Judd Street London WC1H 9LP
For the Respondent	MR P EPSTEIN (of Counsel) Instructed by: Ms K Clark Legal Officer UNISON 1 Mabledon Place London WC1H 9AJ


 


JUDGE ALTMAN: This is an appeal by the respondents from the decision of the Industrial Tribunal sitting at London (North) on 24th, 27th and 28th October 1997 that the applicant was unfairly dismissed. I refer to the parties in their capacity before the Industrial Tribunal.

The tribunal found that the applicant was dismissed for an admissible reason, namely capability, and that this was because:

"2 ... having regard to the illness which she had sustained, reasons of health and safety made it impossible for her to work alone."

The remaining task of the Industrial Tribunal they set for themselves in the following terms:

"3 We then have to consider, because there is clearly a duty on an employer with the size and resources of the Respondent's undertaking, to [sic] attempt to find alternative employment for those who are medically unfit for the jobs which they are employed to do."

Whilst in their decision the tribunal set out a cursory review of attempts to find alternative employment, Ms Morgan for the respondents, without demur by Counsel for the applicant, helpfully sketched out the history, so far as it applied, of the applicant's employment. The applicant began work in 1986, held a number of administrative posts, took a caretaker post as an alternative to redundancy in administrative work, began maternity leave in September 1993 and was due to return in June 1994. However the applicant was unable to return to work due to ill health. Unfortunately she has not been fit enough to return to her work as a caretaker but since the end of 1994 has been fit for light work, notably of an administrative kind, providing she worked in the company of others, in case of a sudden attack of which she continues to run the risk. She did not have computer or typing skills. From June 1994 until termination of employment in June 1996 the applicant remained an employee of the respondents. In October 1994 the respondents undertook a job search. This continued until January 1996 when at the ill-health hearing carried out in accordance with the respondents' employment procedures, the search was extended until the end of March 1996. This was further extended until June 1996. During that period, as someone with an incapacity seeking redeployment within the respondents' organisation, the applicant was notified of possible posts for which she was entitled to apply without competition from members of the general workforce or the public. She may have been in competition with others in the same position as herself. It is common ground that there was no evidence before the tribunal of any post which was identified as being possibly suitable for the applicant and for which she was not given an opportunity to apply. In addition to the posts drawn to her attention as a result of the continuing job search the applicant was in receipt of the general publication of job vacancies within the respondents' organisation throughout that period and was able to make applications as she thought appropriate. During that period, for about 5 months in 1995, the applicant had temporary work in the "Right to Buy" section and she was then found what appears to have been a supernumerary position performing administrative duties at a housing office, even though there was no vacancy at the office. It is interesting to note, therefore, that having been on full pay until May 1995, and there then having been only one week before the temporary work began, the applicant was in receipt of pay throughout virtually the whole of the period from her time for return from maternity leave to the date of her dismissal, whether or not she worked and with the possible exception of one week which is not clear from the information before us.

It is clear that there was evidence before the tribunal of each job vacancy notified to the applicant, and each job for which she applied, and the results of such applications. There was also evidence of those posts she chose to not apply for. In total there were about 15 to 17 posts and the applicant was unsuccessful at about 6 of them, and details were in the evidence before the tribunal. The reasons for her lack of success purported to be set out in the documents and evidence before the tribunal. Amongst those jobs for which the applicant did not apply through choice were those requiring typing, computer skills, or needing her to be on call or to work at nights.

We are greatly indebted to the learned Chairman for the helpful provision of his Notes of Evidence. In answer to a question from the tribunal itself Mr Rose, the trade union representative who had a close knowledge of the respondents' organisation, said:

"I was not aware of any jobs overlooked."

Of the two men, Mr Stevens and Mr Newman, who were involved in managing the job search, Mr Rose said:

"They were helpful but Newman ought to have pushed harder."

In cross-examination the applicant said:

"I accept that Stevens was doing his job properly. I also accept that Newman did his best."

The applicant then answered in evidence her own views as to her lack of success in relation to the various posts and her reasons for not applying for others. Later on she agreed that she made no complaint about any specific post not having been offered to her when she was interviewed at the ill-health hearing. She had confirmed that in total, including the jobs to which we have referred already, the applicant applied for some 22 posts.

On behalf of the respondents it is argued that the tribunal came to conclusions and made findings for which there was no evidential support before them. In considering the submissions it is important to identify the propositions in relation to which it is said that there was no evidence.

Having said that the applicant appears to have fallen between the stools of two departments, the tribunal asserted that they detected a lack of enthusiasm in the various departments to deal with the applicant's problems, and a general reluctance among all the witnesses to consider seriously the applicant for any permanent position. They assert that the reluctance "does seem to have been unfounded". We have considered whether there was evidence to support these conclusions. Subject only to the demeanour of witnesses there were no facts found within the body of the decision of the tribunal upon which such a conclusion could be based. Whether the demeanour and behaviour of witnesses giving oral evidence can really provide a key to such a conclusion we doubt, and the decision does not attribute that conclusion in relation to the respondents' witnesses to such observation. However, the tribunal did seek to rely to some extent on the demeanour of the applicant by concluding that reluctance on the part of the respondents could be discerned, from the demeanour of the applicant, to have been unfounded. Certain it is that there was a lot of evidence which could have led to a contrary conclusion, including the length of time that the applicant was retained as an employee, the length of time for which she was given full pay whilst at home, the extension of the job search to some 40 weeks, the acknowledgement by the applicant that Mr Newman and Mr Stevens were doing their best and that there was no complaint of the handling of the ill-health hearing, the fact that the tribunal appears to have accepted the reasonableness of the explanations in that they did not reject any of the reasons given by the respondents for not giving posts to the applicant in relation to particular vacancies, and the fact that the tribunal does not assert, in relation to any particular post, that it was a post available to her, the fact that Mr Inzani provided an assessment and counselling service for the applicant which was unusual in these circumstances and the fact that he reconvened the ill-health hearing twice so as to give further job finding opportunities.

Mr Epstein for the applicant sought to identify pieces of evidence upon which the tribunal may have relied. He produced some schedules of jobs which he himself had researched but without any interpretation of those sheets within the body of the evidence before the tribunal it is impossible to say that they provided the basis for any inference. He suggested that the applicant was treated less favourably by being required to undergo an aptitude test, but she passed this test and this piece of evidence is of no significance in this context. Mr Epstein pointed out that the applicant expressed a view in writing that Mr Stevens had a negative attitude towards her, but she clearly resiled from this in evidence when she said "I accept that jobs were offered by Stevens. I accept that Stevens was doing his job properly". Mr Epstein did not proceed with the matters set out in paragraph 13(vi) of his skeleton argument. However he did refer to two matters. First, there was some general evidence from Mr Rose, the trade union representative, in correspondence to the effect that there had been several available jobs and also in evidence that he could see no reason why she should not have got a job because there were agency employees and that he felt "there seemed to be a barrier of some kind". Further, the applicant accepted that when she applied for a permanent post at the Homeless Persons Unit she may not have been fit for it, but asserted that when it became available a year later her health had improved. There is some evidence that when the job was considered the second time there appears to have been some lack of adjustment by the respondents to the improved health of the applicant so as to make her possibly a suitable candidate. However it should be noted that this second application by the applicant was made after the general shortlisting for that post had taken place. Whilst it is impossible for us to say, when viewing the totality of the evidence on these matters, that these are the pieces of evidence upon which the tribunal relied, it does provide a scintilla of evidence upon which the tribunal may have based its judgments as to lack of enthusiasm and general reluctance sufficient for us to say that we cannot conclude that there was no evidence at all upon which the tribunal could have made those judgments.

The tribunal continued:

"... Our general view is therefore that not enough effort was made to try to find the Applicant some sort of permanent employment when there must have been simple clerical jobs in Respondent's, undertaking which the Applicant could undertake. It for these reasons that we find the dismissal to be unfair."

That passage represents the kernel of the decision of the Industrial Tribunal. Ms Morgan has made a number of submissions in relation to the decision as a whole drawn from that passage. First, she submits that the decision represents a perverse conclusion which no tribunal could reasonably come to on the evidence. Secondly, she submits that there was no evidence to support the conclusion of the availability of other employment. Thirdly, she submits that by focusing on a view as to the availability of other employment, without there being any particular post identified, to the exclusion of all other elements the tribunal was placing too high a burden on an employer in the context of considering whether or not to dismiss. Fourthly, Ms Morgan says that the tribunal substituted their own view for that of the employer.

As to the allegation of perversity, we point out that we have not had the opportunity of detailed examination of all the evidence that was before the tribunal. We have not seen the written witness statements which constituted evidence-in-chief. We have not perused in any great detail the vast volume of documentary evidence that was before the tribunal. We have found some evidence set out above which could have related to a conclusion about whether or not alternative employment was available. We reject the submission that the decision of the Industrial Tribunal was perverse.

The second submission in this context is that there was no evidence to entitle the tribunal to conclude "there must have been" alternative work available. We accept Ms Morgan's argument that within the body of the decision it appears that this is based upon the size and administrative resources of the respondents. Whilst we have identified some evidence in this judgment, Ms Morgan presents a very strong argument, it seems to us, that in the way in which the tribunal expresses itself it appears in fact to be basing its conclusions on no evidence. This is because there is no reference in the decision to any finding on the evidence, no reference to any fact upon which such finding could be based, and that by expressing itself "must have" there seems to be the implication that this judgment stands outside the evidence before the tribunal. So whilst finding that there was evidence upon which a tribunal could have formed a judgment about the availability of alternative work, so as to defeat the submission as it stands on its own, these arguments remain important in the context of the submission that the tribunal's approach was subjective, to which we return later.

Thirdly, Ms Morgan says that by singling out this one aspect the tribunal places too high a burden on an employer. The argument would require a tribunal when considering whether the employer acted reasonably or unreasonably to look not only at whether there may have been another job available, but whether the employer acted reasonably in the overall efforts to find alternative work. Then, of course, as that would be only part of the decision to dismiss, it would be argued that it is appropriate to consider all the factors in relation to the decision to dismiss, balancing one against the other so as to reach a conclusion. It is clear that this process was not expressly undertaken on the face of the decision of the tribunal. However on behalf of the applicant, Mr Epstein has referred us to the case of High Table Ltd v Horst [1997] IRLR 513 where at page 518, paragraph 24 Peter Gibson LJ says that whilst the tribunal:

"must consider all that is relevant it need only deal with points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points."

Mr Epstein submits that that is exactly what the tribunal has done here. The one issue, he says, between the parties was whether sufficient was done to find alternative employment which could have been successful and the tribunal by making it clear that that was the only issue between the parties is not to be read as taking only that into account.

Accordingly the question arises as to whether the tribunal's reference to that one matter is because they considered all other factors but specified and dealt with only the one because that was the contentious one which was central to their decision, or whether the reference to only that factor was because the other matters were not considered by the tribunal at all. In judging this as a single submission on an issue of law, we are driven to conclude that the Industrial Tribunal did highlight in its decision the main matter which was subject to evidence and argument before them, so far as we can judge. However the way in which the tribunal did approach this aspect of its decision does inform our conclusions on the issue of subjectivity to which we now turn.

Ms Morgan argues that the tribunal substituted their own views for that of the reasonable employer and, coupled with this, substituted their evaluation of the situation in place of evidence before them. In this context she submits that the Industrial Tribunal applied the wrong test by enunciating a subjective assessment of what should have been done rather than the objective one of whether the dismissal fell within the band of reasonable options open to a reasonable employer. She submits that there is nothing in the decision which indicates that the tribunal found that the actions of the respondents fell outside the band of reasonable options. Whilst the "mantra" of whether the dismissal fell within the band of reasonable actions open to a reasonable employer has echoed through the tribunals for some years, we emphasise that a tribunal is not to be expected, in its decision, to repeat this phrase in every decision as if by rote. We have preferred to assess these submissions in the light of the statutory test, namely:

"whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating (the incapability of the applicant) as a sufficient reason for dismissing her."

In support of her submission Ms Morgan referred to the case of Quinton Hazell Ltd v W C Earl [1976] IRLR 296. That case is remarkably similar to the one with which we are concerned and provides an interesting guide to the proper approach. Mr Epstein also referred to that case in support of the proposition that it would be enough for the Industrial Tribunal to find that there may have been other jobs available. However the phrase used in that decision, "if any real enquiries had been made he could have been found a suitable situation" implies a much stronger likelihood, if not a certainty, of success. It also implies that, in contrast to the current case, no real enquiries were made.

It is always difficult to construe the words of the decision of an Industrial Tribunal and the Employment Appeal Tribunal will not do so with legal niceness for the tribunal's decision "is not required to be an elaborate formalistic product of refined legal draftsmanship", (Meek v City of Birmingham District Council [1987] IRLR 250 at 251), a sentiment expressed many times in different terms over the years. However as was pointed out in the Quinton Hazell case our only key to what was in the mind of the tribunal is the decision itself and whilst it is true that no formality is required there comes a point where it must be possible to ascertain the basis of a tribunal's decision. The tribunal undoubtedly expressed its conclusions, which we have set out above, in terms which appear subjective. The tribunal specifically expressed their own view of the availability of work and the lack of effort and concluded expressly that it was "for these reasons" that they found the dismissal to be unfair. We are driven to conclude that the reasons for their finding of unfairness was their own view as specifically expressed. We do not consider it as simply a matter of words. In addition to the simple meaning of the words used, our conclusion is supported by other factors which, though not conclusive in themselves, all tend to point in the same direction. The tribunal said that there "must have" been simple clerical jobs, and this coupled with their referring to no evidence and making no specific findings on the evidence and there being little if any evidence to support it, seems to us to be more consistent with their making a subjective judgment as to what they thought ought to have been the case rather than a considered evaluation of the evidence before them. Secondly, whilst it is true that the form of the decision did not require the tribunal to deal with matters that were not really contentious and which made it reasonable for them to concentrate on the one issue that was, this again tends to support the proposition that the tribunal was not asking itself the question posed by the statute. We cannot but conclude that if the tribunal had posed for itself the question as to whether the respondents acted reasonably or unreasonably in dismissing, their examination would probably have been broadened out to consider the other factors to which reference was made. We emphasise that this is not to say that that in itself was a failure but rather that the way in which it is set out in the tribunal's decision tends to support the conclusion that the tribunal did not ask itself the right question.

Accordingly in view of the language used, coupled with the absence of findings and evidence within the decision itself and the way in which the tribunal approached the singular issue and when looking at all those factors together we are driven to the conclusion that the tribunal did not ask itself the question posed by the statute but rather substituted their own judgment as to whether or not there should have been a job available and concluded from that alone that the dismissal was unfair. The mere fact that the tribunal referred to the size and administrative resources of the respondents or used the phrase in paragraph 3 "we then have to consider" cannot affect this.

Accordingly, this appeal is allowed. We have considered the appropriate order to make consequential upon that finding. For reasons similar to those set out by Kilner Brown J in the Quinton Hazell case, we would have preferred to be able to decide this case on the evidence before us rather than remit it to another tribunal. The original hearing lasted a very long time, some three days and for the applicant to have to continue for a period of anxiety and uncertainty and for the respondents to face further costs and diversion of resources are matters that we would have avoided had we been able to do so. However, in view of the volume of evidence in this case and the fact that it is not entirely unequivocal we have decided to remit this application to be reheard before a differently constituted tribunal. There was a question as to whether we should restrict the issues to be heard before the Industrial Tribunal but on reconsideration it seems to us that that is a difficult exercise in the circumstances of this case. However bearing in mind the reality of the issues as presented to us and the concessions that have been made, we anticipate that the legal representatives will be able to agree the narrow issues that have to be dealt with and reduce to writing a joint statement of the relevant issues and witnesses and in respect of other issues no doubt an agreed statement of facts. We direct that any such agreed statement be furnished to the tribunal within 28 days of the sending out of this judgment and that this matter be listed for rehearing before a tribunal in due course. Whilst not making a specific direction we would have thought that advantage could be taken of the previous hearing to sufficiently narrow the issues as to require a listing for one day.