United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K DOBE (of Counsel) MESSRS SHAH Solicitors 168 Greenford Road Sudbury Hill Middlesex HA1 3QZ


 


JUDGE CLARK

1. This is an appeal by Ms Shah against a remedies decision of the London (North) Employment Tribunal, chaired by Mrs E Prevezer, promulgated on 9 September 1999, following a liability decision promulgated on 8 March 1999, in which they upheld her complaint of unfair dismissal brought against her former employer, the Respondent Council. Both decisions were promulgated with extended reasons.
2. We begin with the liability decision. The Tribunal found that the Appellant commenced employment with the Respondent on 26 February 1990, as an Audio Secretary in the Housing Department. She began work on grade 4 and was subsequently promoted to grade 5. At the relevant time in 1997, she was acting as secretary/ personal assistant to the Chief Housing Officer.
3. 1n 1997 a reorganisation took place. Prior to the reorganisation there were 3 secretaries working in the relevant Housing Department, the Appellant; Jasmine Faulks, who was on a higher grade, SO1, and Ann Rowe, working under a temporary contract on grade 5.
4. Under the Council's redundancy policy Jasmine Faulks was assimilated into the SO1 post of Personal Assistant to the Housing Officer. There were 3 secretarial posts at grade 5, and one further Personal Assistant post at SO1 open to the Appellant. She contended that both SO1 posts were exactly similar to the post which she originally held and that she should be assimilated into the second Personal Assistant post. However, the Employment Tribunal accepted the Council's evidence that assimilation may only take place where the old and new posts are on the same grade. Here, there was a difference in grade between the Appellant's old post (grade5) and the new Personal Assistant posts (SO1).
5. The Council decided to fill the other Personal Assistant post by appointing Ann Rowe without interview, internal competition or advertisement. The reason for that was that the Senior Officer in the Social Services Department wanted Ann Rowe as her assistant, and therefore put her into a temporary SO1 position.
6. hereafter the Appellant was informed that her post was redundant. She was ring-fenced for one of the remaining grade 5 jobs but refused to attend for interview or fill up the necessary forms. It was the Council's evidence that had she applied she would have been placed in a grade 5 post.
7. On those facts the Employment Tribunal found the Appellants dismissal by reason of redundancy to be unfair. Instead of advertising the post filled by Ann Rowe and allowing the Appellant to apply for it, the Council allowed the Chief Officer to appoint a temporary secretary who was on the same grade as the Appellant. Thus Ann Rowe, who was on a temporary contract and on the same grade as the Appellant was put in a better position than the Appellant, who was a long-standing employee. The dismissal was unfair.
8. Turning to the remedies decision, the Appellant asked for reinstatement or re-engagement. The Employment Tribunal considered evidence on remedy given by Linda Fricker, Chief Housing Officer and Ms Hooker, Principal Personnel Adviser to Social Services on behalf on the Council. They found:

(1) that the Appellant had contributed to her dismissal to the extent of 100 percent by not co-operating with the Council in seeking to obtain redeployment. She did not agree with the reorganisation

(2) she was a difficult employee. There was a lack of mutual trust and confidence which rendered her unsuitable for reinstatement or re-engagement. Such a course, the Employment Tribunal held, was not practicable, relying on Wood Group –v- Crossan [1998) IRLR 680.

(3) Accordingly reinstatement/re-engagement would not be ordered

(4) As to any compensatory award:

(a) she had contributed to her own dismissal to the extent of 100 percent, and

(b) she had failed to mitigate her loss, from November 1998, when she was offered a full-time post which she did not take because she wished to be reinstated in her old job.

9. Accordingly she received a nil award, the appropriate redundancy payment, equating to the basic award, having been paid by the Council. Against that remedies decision this appeal is brought.
10. Mr Dobe, on behalf of the Appellant, advances three grounds in this appeal. The first relates to the finding in principle that the Appellant contributed to her dismissal. Secondly, and in the alternative, he submits that the Tribunal fell into error, in assessing contribution, if such there was at the full 100 percent. Thirdly, he raises points in relation to the Tribunal's finding of failure to mitigate loss.
11. Having considered submissions, it seems to us that this case ought to proceed to a full appeal hearing on three questions. First we accept that the Tribunal was entitled to find that by not applying for a grade 5 post in the reorganisation the Appellant had contributed to her dismissal, in the sense that that amounted to culpable or blameworthy conduct and may be characterised, in the words, of Brandon L.J. in Nelson, as "bloody mindedness."
12. Our understanding of the cases indicates that for a 100 percent finding to be made, it must be the conduct of the employee which is the sole cause of the dismissal. We appreciate the argument that may be raised on behalf of the Respondent, that at the end of the day it was the Appellant's failure to apply for a ring-fenced grade 5 post, which was the proximate cause of her dismissal, by reason of redundancy. However, we think it arguable that the Tribunal fell into error by not taking into account its own findings that the Council had behaved unfairly in not putting the SO1 post up for internal competition and in so doing, damaging if not destroying the necessary mutual trust and confidence that must exist between an employer and employee. The short point is whether it can be said that the Appellant's conduct was the sole cause of the dismissal, if not then some finding of contribution of less than 100 percent must be appropriate.
13. Secondly, in relation to the Tribunal's finding of her failure to mitigate. We have earlier related that finding which appears at paragraph (iii), in the Tribunal's decision. The difficulty we have is that nowhere in the extended reasons for the remedies decision does the Tribunal deals with the question of mitigation and make any necessary findings of fact. It appears that the effective date of termination of the Appellants contract was the 8 September 1998, and accordingly the Tribunals finding that she failed to mitigate her loss in November must relate to an offer of employment after the termination of her employment with the Respondent Council. In the absence of such findings it is difficult for us to see how the Tribunal reached their conclusion.
14. The third point which we think ought to be considered at the full hearing again relates to the question of mitigation of loss. As we understand the Tribunal remedies decision it makes no finding that the Appellant's failure to co-operate in the redeployment exercise itself amounted to a failure on her part to mitigate her loss. In the absence of such findings it is not possible to conclude that, but for the finding on contribution, the Tribunal would have gone on to find in the alternative that she had failed to mitigate her loss by her non co-operation in the redeployment exercise. In these circumstances we shall allow the matter to proceed to a full hearing. It will be listed for half a day, category C. There will be exchange of skeleton arguments, not less than 14 days before the date fixed for the appeal hearing, copies to be lodged with the Employment Appeal Tribunal.
15. I have considered the Appellant's application for leave to amend her grounds of appeal contained in a letter from Mr Dobe dated 10 March 2000. I shall not grant leave to amend in those terms, but simply direct that the full hearing proceed on the three grounds identified in this judgment.