United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A COLSON (Representative) British Medical Association BMA Oxford Office Cranbrook House 287 Banbury Road Oxford OX2 7JF


 


JUDGE A WILKIE QC:

1. This is an appeal by Dr Haigh and Partners against a decision of the Employment Tribunal sitting at Bury St Edmunds on 3 April 2000 that the Applicant, Miss A Knowles, had been unfairly dismissed.
2. The Appellant is represented by Mr Colson, Regional Manager of the BMA, who also represented the Appellant before the Employment Tribunal and we commend the clarity, fairness and brevity with which he has put his point on this appeal. In essence, he says that the Employment Tribunal erred in law in that, he says, from the decision it is evident that they substituted their judgment for the Appellant on the substance of the question whether they would have dismissed in the circumstances.
3. This was a case which was considered very shortly after the decision in this Employment Appeal Tribunal in the case of Midland Bank plc v Madden [2000] IRLR 288, which had come to a contrary conclusion to another division of this Tribunal in the case of Haddon v Vandenbergh Foods Ltd [1999] IRLR 672. Unfortunately, the detailed judgment of this Tribunal in Midland Bank plc had not yet percolated through and, therefore, the Tribunal did not have the advantage of that particular decision. Since this decision, the Court of Appeal in the Midland Bank plc has upheld the approach of the President of this Tribunal as expressed in Midland Bank plc and Mr Colson, who very helpfully referred us to the full judgment of the EAT in that case, has equally helpfully accepted that there is nothing in the Court of Appeal judgment which calls in question the approach of the Employment Appeal Tribunal as expressed in Midland Bank plc. Essentially, what the EAT in the Midland Bank plc had concluded, as set out in summary form at paragraph 43, sub-paragraph 3, is that:

"(3) It can be prudent for a tribunal to remind itself not to substitute its own views for those of the employer as a guard against its judging the situation by reference to a state of things unknown to the employer at the relevant dismissal stage."

It is recorded that Haddon did not suggest otherwise.

"(4) A tribunal is, as Haddon suggests, free to substitute its own views for those of the employer as to the reasonableness of dismissal as a response to the reason shown for it.

(5) No court short of the Court of Appeal can discard the band of reasonable responses test as a determinative test but Haddon is right, as have been earlier cases, to point to the danger of the band test leading to one of perversity.

(6) Given that within the authorities which lead to the band test binding us is the clear requirement, whether strictly logical or not, that it should not become one of perversity, the least violence to existing precedent is caused if the test, although a determinative one, should, until the Court of Appeal rules on the problem, always be accompanied by a reminder, as Haddon suggests, of the terms of the questions which s.98(4) poses."

4. The reference to section 98 (4) is to that subsection in the Employment Rights Act 1996 which provides:

"98(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismiss the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

5. In earlier paragraphs within the Employment Appeal Tribunal judgment in Midland Bank plc, reference was made to certain earlier authorities with approval. In paragraph 30 the EAT said:

"Equally we can agree with the judgment in the EAT in Wilson v Ethicon [2000] IRLR 4 where Lord Johnston, approving Haddon, says:

'What, in our opinion, the tribunal in question has to do is to stand back from the decision of the employer and assess, in the knowledge of what was known to him at the time, whether or not the dismissal was in the circumstances reasonable'."

6. And again, in paragraph 35, reference was made to what was said in Haddon to the effect that "the approach taken in Gilham v Kent County Council (No.2) [1985] IRLR 18 is to be followed". The Employment Appeal Tribunal in the Midland Bank plc case accepted that Gilham is to be followed but they expressed the opinion that there was nothing in Gilham, express or implied, which disapproves of reference, in an appropriate case, to a band of reasonable responses. In Gilham, Griffiths LJ held that:

"A tribunal in applying the section must not ask themselves what they would have done, but must ask themselves how a reasonable employer would have acted."

7. In the present decision this Employment Tribunal has directed themselves at various passages within it. In paragraph 17 they direct themselves as follows:

"17 In terms of the law we have been reminded that it is for us to consider the reason for dismissal and that must be a reason within section 98 of the Employment Rights Act 1996. Capability is a potentially fair reason to dismiss. Once satisfied as to the reason for dismissal we have to then consider whether the respondent has acted reasonably in treating it as a reason to dismiss. We have regard to equity and the substantial merits of the case and as Mr Colson reminds us we have regard to the administrative resources of the respondent and that this is a small employer."

8. Notwithstanding the fact that no express reference is made to the band of reasonable responses approach Mr Colson, in our judgment entirely properly, accepts that this is a proper way for the Tribunal to direct itself.
9. In paragraph 19 of their decision the Employment Tribunal say that:

"19 We do not consider that the respondent acted reasonably in treating that as a reason to dismiss in this case. …"

And again, at the end of paragraph 21, in quite a lengthy sentence, they say this:

"We do not consider that the respondent, faced with [a number of matters which they then set out] acted reasonably in dismissing the applicant on grounds of ill-health."

10. Once again Mr Colson very properly concedes that there is nothing in the language used by the Tribunal in either of these paragraphs to denote an erroneous approach. He does not seek to argue that it is compulsory, in every case, for the Tribunal to recite the band of reasonable responses approach. He accepts, and again rightly, that by posing the question in this way the Tribunal have properly directed themselves. What he does criticise however, is the concluding sentence in paragraph 22, in which the Tribunal say:

"However, to bring her employment to an end in these circumstances was in our judgment unfair and accordingly the applicant's complaint succeeds."

11. Mr Colson argues that there is a demonstrable change of approach in this Employment Tribunal's decision from these paragraphs to what they say in paragraph 22, and that what they say in paragraph 22 in effect amounts to a substitution by this Tribunal of their judgment, not on the question whether it was reasonable for the Respondent to dismiss for that reason, but as to whether or not they would have dismissed in those circumstances.
12. We regret to say that we are unable to accept that that is an arguable reading of the decision. It seems to us that, having posed the correct test and having applied the correct test in two separate places, all that this Tribunal is doing in paragraph 22 is coming to the legal conclusion that, having addressed the test, having made their findings, the legal consequence is that the dismissal was unfair. That, it seems to us, is an eminently proper way for them to have structured their decision and it does not, on any arguable basis, constitute a change of approach from one which is proper to one which is impermissible.
13. Therefore, notwithstanding the able arguments put forward by Mr Colson, our conclusion is that this appeal discloses no arguable case and it should therefore be dismissed at this preliminary stage.