United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C CARMO (Solicitor) Messrs Carmo Solicitors 79 St Martin's Lane London WC2N 4AA


 


JUDGE PETER CLARK: The appellant, Ms Varndell was employed by the respondent, Wimbledon & District YMCA as a Child Care Director from 23rd March 1987 until her dismissal effective on 31st October 1995.

Following her dismissal she brought complaints of unfair dismissal and sex discrimination before the London (South) Employment Tribunal. Those complaints were heard by a tribunal chaired by Mr M Houghton over six days. By a reserved decision promulgated with extended reasons on 31st July 1997 ["the liability decision"] that tribunal dismissed the complaint of sex discrimination but upheld the complaint of unfair dismissal. In a nutshell, the tribunal found that there had been a breakdown in the working relationship between the appellant and Mr Page, who joined the respondent as General Secretary in February 1995, and that Mr Page had used redundancy as a cloak for removing a difficult and troublesome member of staff, as he viewed the appellant. The question of remedies was adjourned.

Mr Houghton having left the country, the adjourned remedies hearing came before a different tribunal chaired by Mr D Booth on 15th September 1997. At that hearing the respondent contended that re-engagement, the remedy sought by the appellant in the alternative to reinstatement in her former post, would be a recipe for disaster in view of the schism existing within the respondent's staff as a result of the breakdown in relations between the appellant and Mr Page. The tribunal rejected that contention and by a decision promulgated on 25th September 1997 took the provisional view that re-engagement was practicable. The tribunal simply ordered re-engagement to be made into a Grade C Post coming available during the next three months ["the first remedies decision"].

Against the first remedies decision the respondent appealed. That appeal was heard by a division presided over by the President, Morison J, on 9th December 1997. The respondent took two points. First, that the finding of the tribunal that it was practicable to re-engage the appellant in the light of the breakdown in trust and confidence was perverse. That argument was rejected. Secondly, that the order made by the tribunal did not comply with the mandatory requirements of s. 115(2) of the Employment Rights Act 1996. That argument succeeded. Accordingly the matter was remitted to the Booth tribunal with a direction that the trust and confidence argument could not be renewed. The tribunal was required to judge the position as at the date of the further remedies hearing on remission, depending on the availability of posts with a view to making an order complying with s. 115(2). The respondent was meanwhile ordered to give discovery relating to available posts at Grade C.

The resumed hearing took place on 25th January 1999. Having heard further evidence the tribunal found that there were then no vacancies. It was not practicable to make a re-engagement order. Accordingly an award of compensation, reduced to the statutory maximum of £11,300 was made. Against that order, promulgated on 29th January 1999, the appellant now appeals.

In submissions to us, Mr Carmo argues that the tribunal's express finding in paragraph 10 of the second remedies decision that there are no current vacancies is a perverse finding; that the evidence of the respondent's witnesses, upon which that finding was based, should not have been taken at face value. The appellant's case at the second remedies hearing was that she should either have been reinstated in her former post of Child Care Director or she should have been re-engaged in the post of Child Care Manager. The tribunal found that the post of Child Care Director had been dispensed with. As to the position Child Care Manager, Mr Carmo tells us that the evidence was that a Mr Marsden was appointed Programme Manager in January 1998. The former Child Care Manager, Cathy Grant, had left in December 1997. Her post as Child Care Manager was initially filled by a Melissa Mottram, not referred to in the tribunal's reasons, in April 1998. Ms Mottram left in June 1998. Mr Marsden's evidence to the tribunal was that he then decided in August 1998 that he could cover both the posts of Programme Manager and Child Care Manager.

Mr Carmo submits that at paragraph 6 of their reasons the tribunal have misunderstood the factual position. He invites us to read that paragraph as suggesting that Mr Marsden agreed to take on the post of Child Care Manager as soon as he was appointed in January 1998. That is not how we read that paragraph. Although there is no reference specifically to the coming and going of Ms Mottram, we think that on a fair reading of paragraph 6 of the reasons that the tribunal had in mind that there was a gap in time between Mr Marsden's initial appointment as Programme Manager in January 1998 and the time at which "in due course", as the tribunal put it, that post was amalgamated with that of Child Care Manager and then filled by Mr Marsden.

A further point taken by Mr Carmo is that the tribunal referred to Mr Marsden as being on "Grade B", when he submits that the evidence was that he was on Grade C, and he takes that from the evidence given by Mr Page at the second remedies hearing. Assuming that is correct, we cannot see that that error in the tribunal's reasons is material to the critical question which is were the tribunal entitled to find that there were in January 1999, as opposed to September 1997, "no current vacancies" into which the appellant could either be reinstated or re-engaged.

In our judgment, this appeal is essentially an appeal on fact. It is not our function and we have no jurisdiction to revisit the factual questions decided by the tribunal. Mr Carmo accepts that there was evidence before the tribunal to support the finding that there were current vacancies. His case is that the tribunal should not have accepted the respondent's evidence on this point in view of the history of the matter. We cannot accept that submission. It does not raise an arguable point of law.

It follows, in our judgment, this re-engagement being a discretionary remedy, that the tribunal on their finding of fact that there were no current vacancies, were entitled to conclude that it was no practicable at stage one of the re-engagement exercise to order re-engagement. In these circumstances there being no arguable point of law raised in this appeal, we must dismiss it.