United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P CREANER (of Counsel) Messrs Ward Dewhurst Solicitors 7 Lune Street Preston PR1 2JX


 


MR COMMISSIONER HOWELL QC

1. In this case which is before us today for a preliminary hearing an Educational Institution called the New College (Cardiff) Ltd seeks through Mr Creaner who appears on its behalf, to pursue to a full hearing an appeal against the decision of the Cardiff Employment Tribunal comprised in extended reasons sent to the parties on 18 August 1999, and set out at pages 5-16 of the appeal file before us. That decision followed a hearing occupying three days from 2-4 August 1999 into complaints of unfair dismissal and breach of contract brought by six of the college's teaching staff who had been purportedly dismissed on 31 December 1998 by notices served on them on the ground of alleged redundancy on 23 October 1998. The decision of the Tribunal was that the college, the Appellant before us, had been in breach of contract in purporting to dismiss the applicants in the way they did because proper notice in accordance with the combined effect of the notice provisions under their contracts of employment and the minimum notice provision under S.86 Employment Rights Act 1996 had not been complied with.
2. The Tribunal further held that the dismissal of two of the teaching staff had been unfair because they had been unfairly selected for dismissal on the grounds of redundancy, there having been what the Tribunal found to be an inadequate and unreasonable selection of those two members of staff for redundancy, without proper redundancy consultation and consideration procedures having been carried out. By its Notice of Appeal dated 22 September 1999 at pages 1-4 of the appeal file, the college sought to dispute both the findings of breach of contract and unfair dismissal made by the Tribunal. Under the breach of contract head, it is asserted that the contractual period of notice given in this case complied with the requirements of the law and that the Tribunal had been wrong in holding that inadequate notice had been given. Further, or alternatively it was suggested in the Notice of Appeal that the Applicants had compromised any right of recourse to statutory redress or under their contracts of employment by acceptance of payments in January 1999, in lieu of any outstanding employment rights. Secondly it was contended that the Tribunal had erred in holding that there had been inadequate consultation before selection for redundancy of the two employees who were held to have been unfairly dismissed.
3. Mr Creaner who appeared before us this morning on behalf of the college sought in his skeleton argument to add a further ground of appeal which is outlined in a paragraph of his skeleton argument, recording that the Appellant had been concerned about a question that the Chairman had asked the Clerk to the Tribunal in the course of the hearing about what the maximum amount of compensation which could be awarded to one of the employees was under the legislation.
4. Mr Creaner's first submission to us, based on that, was that there had been an arguable breach of natural justice in the way the proceedings were conducted and that he ought to be allowed to amend the Notice of Appeal to allege a breach of natural justice of the part of the Tribunal and pursue an appeal on that ground. That submission we reject. We cannot for our part see that any reasonable person would be led from the alleged inquiry by the Chairman in the course of the proceedings as to the precise terms of the legislation to conclude that the proceedings were in any way being conducted in a biased or unfair way to either one side or the other. In addition, that suggestion has been made only at a very late stage of this appeal and would circumvent the normal process of requiring sworn affidavit evidence from the Appellant and an opportunity for the Chairman who conducted the proceedings to comment on the allegations made, being carried out, if we allowed such an amendment. Accordingly we reject that ground of potential appeal.
5. The initial point raised in the Notice of Appeal was that the combined effect of the contractual provisions for notice (which, in common with the contracts of employment of many other teaching staff, provide expressly for notice to terminate the contract being able to be given only at set dates in the year, coinciding with the ends of educational terms) and of S.86 of the Employment Rights Act 1996 was to invalidate the Tribunal's conclusion that inadequate notice had been given in this case. What happened in this case was that some ten weeks notice was given, stated to expire on 31 December 1998. That would have been sufficient under the terms of clause 4 of the contract itself, set out in the Originating Application on page 19 of the appeal file, but as is common ground not sufficient under S.86 to comply with the minimum periods of notice for employees with the length of service that these members of staff did have. Mr Creaner told us that for all the employees concerned, there was at least a period of 12 weeks notice entitlement under S.86. The decision by the Tribunal was that the combined effect of the contractual provision and S.86 required that for an adequate period of notice to have been given, a notice given on 23 October 1998 would become effective at the end of the spring term in April 1999, rather than as it purported to do at the end of December 1998. We do not need to say anything further about the contention in the notice of appeal that that was a wrong interpretation of law by the Tribunal, since Mr Creaner has made it clear this morning that he accepts that the Tribunal's decision as a matter of law on interpretation of the contract and S.86 of the 1996 was correct and that no appeal can be pursued on that ground alone.
6. The further allegation in the Notice of Appeal that the employees had waived their contractual and statutory notice entitlements by accepting payments from the employer in respect of a shorter period of notice was, as Mr Creaner again very fairly made clear to us, not an allegation of fact or contention of law that had been made in the course of the Tribunal proceedings. The payments in lieu of notice that were offered by the college to the staff were referred to by the Tribunal in the course of their extended reasons in paragraph 13 at the foot of page 8 of the appeal file, in a paragraph beginning: -

"The cat was now amongst the pigeons. Mr Hoole, [who was the Principal of the college] did not accept the proposition that the employers had relied on that they were entitled to longer notice. He agreed that appropriate members of staff were entitled to more than 10 weeks notice but did not accept that they were entitled to be paid up to 30 April. He seems not to have addressed that issue, merely seeking to compromise by paying the additional one or two weeks pay to each member of staff affected by the redundancy notices as additional notice money."

And it is quite clear, from the findings made by the Tribunal and the way they dealt with the issue of breach of contract and the notice provisions, that the Tribunal were fully aware of the efforts the college had made to persuade the employees to accept a payment in respect of a shorter period of notice; but they did not find there was any question of the employees having thereby, contractually waived their contractual and statutory rights to a longer period of notice. That would have been completely inconsistent with the findings they did make and were satisfied Mr Creaner was right to concede it had not been argued before them at all. We are unable to see therefore that what is said in the Notice of Appeal on the alleged acceptance of a shorter period of notice gives rise to any arguable ground for saying that the Tribunal erred in law in the way they dealt with the breach of contract issue.

7. A further submission made to us was that the Tribunal's decision that a senior member of staff, Mr Boparai and a Mrs Rees had been unfairly dismissed in the way they had been selected for redundancy was erroneous in law. In particular, Mr Creaner referred us to the Tribunal's findings in paragraph 28 that the selection of Mr Boparai for redundancy had been made before there was any consultation and that if such consultation had taken place, it was in the Tribunal's view highly likely that he would have been able to persuade the Directors that he should not be an employee to be made redundant.
8. Mr Creaner criticised the Tribunal's apparent finding in that paragraph as inconsistent with the findings of fact recorded earlier on in paragraphs 3-8 of their decision, which showed that during the summer of 1998, when it had become apparent that the college was in a precarious financial position, the Directors and management had met with the staff at a staff meeting and a series of further meetings to explain the crisis facing the college. In particular a meeting on 30 September had taken place with the staff, at which four options were outlined to the staff including the possibility of redundancy and the possibility of everyone taking a voluntary salary cut of at least 25% as ways of dealing with the crisis. However it is clear from those paragraphs that the only steps taken with regard to deciding who would have to be selected for redundancy was a call for volunteers on 12 October 1998. We are unable to see that those paragraphs give any indication that a proper consultation process, on the selection of a pool of employees for potential redundancy, and involving the fixing of appropriate criteria to decide who would have to be made redundant, was entered into.
9. We are unable therefore to see that the Tribunal's determination on what was essentially a question of fact is open to any criticism as having erred in principle or misdirected themselves or otherwise erred in law. Those being the potential grounds put before us for allowing this case to go forward for a full hearing as an appeal before the Employment Appeal Tribunal, and none of those grounds being in our judgment sufficiently arguable to warrant our directing this case to go further forward as an appeal, we reject the submissions made to us and we accordingly now unanimously dismiss the appeal.