United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SINCLAIR CRAMSIE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MRS RECORDER COX QC

1. The Appellant, Irene Balding, seeks in this case to appeal from a decision of the Nottingham Employment Tribunal promulgated on 17 October 2001 dismissing her complaints of unfair dismissal and direct sex discrimination. The case is before us today by way of Preliminary Hearing and we must therefore determine whether the proposed appeal discloses any arguable errors of law in the Employment Tribunal's decision.
2. The Notice of Appeal was drafted by Ms Balding herself. We have no skeleton argument. We have had the benefit of attention being given to this appeal today by Mr Cramsie, via the ELAAS Scheme, to whom we are grateful. The Appellant has been unable to attend herself through illness but has written to the Appeal Tribunal agreeing to the representative from the ELAAS Scheme making submissions on her behalf. Mr Cramsie has told us, helpfully, that he does not feel there is anything that he can usefully add to the grounds of appeal presently before us as drafted by Ms Balding.
3. In her Originating Application the Appellant complained that she had been unfairly dismissed from her post as Business Development Manager. She also alleged that her employers unlawfully discriminated against her on the ground of her sex by failing to offer her compromise terms to compensate her for the loss of renewal commission.
4. The Employment Tribunal record their findings of fact at paragraph 3 of the decision. Following the purchase by the Croner CCH Group of the shares of SBJ, for whom the Appellant was then working, the Tribunal find that the Respondents planned to review the operations of these different organisations with a view to integration and that the Appellant was aware of their plans. There were negotiations with the various employees affected and the Tribunal find that the Appellant was offered a new contract. At paragraph 3 sub-paragraph (n) they find:

"The proposed new contract contained certain terms and conditions which constituted an improvement for the applicant and other SBJ staff transferring to new jobs. There were improvements in holiday pay, sick pay and pension. Other benefits included death in service and voluntary personal accident."

At sub-paragraph (o) they make a finding that one Barry Ward, another SBJ employee, was given an ex gratia payment of £4,200 net in order to compensate him for the loss of renewal commission. The Appellant was sent a letter of dismissal for redundancy. She did not sign the new contract on offer and her employment therefore came to an end.

5. At paragraph 4 the Tribunal directed themselves as to the relevant provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981, Section 98 of the Employment Rights Act 1996 and Sections 1, 5 and 6 of the Sex Discrimination Act 1975.
6. Although the Respondents initially denied that there was a transfer of undertaking between SBJ and the Respondents, the Tribunal record at paragraph 6 of their decision that during the hearing the Respondents conceded, for the purposes of this complaint only, that there was such a transfer. The solicitor then appearing on behalf of the Appellant, Mr Groves, submitted on her behalf that the reason for her dismissal was a reason connected with the transfer and that the Respondents did not act reasonably in treating that reason as a sufficient reason for dismissal. The consultation was alleged to be inadequate. She was absent due to sickness and was treated badly in the consultation period. It was further argued on her behalf that the offer of the new contract did not in fact improve her position. In relation to sex discrimination the Appellant's case was that she was treated less favourably on ground of her sex because the Respondents did not, in her case, produce a schedule of calculations and give her an ex gratia payment.
7. The Respondents resisted all these allegations. They maintained that they had acted reasonably. The Appellant was well aware of the organisational changes afoot. Meetings had taken place with her. An offer had been made of reasonable terms of employment. Further, the decision to give Barry Ward an ex gratia payment was to compensate him for the loss of earnings envisaged as a result of the change in the commission scheme. The Appellant would suffer no such loss on her new terms and conditions and therefore no ex gratia payment was made.
8. In relation to unfair dismissal the Tribunal concluded (and this had really been conceded by the Appellant's solicitor) that the reason for the dismissal was an economic, technical or organisational reason entailing changes in the workforce of the Respondent. Accordingly, by virtue of Regulation 8(2) of the 1981 Regulations, Regulation 8(1) was disapplied and that reason was regarded as having been for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held. Such reason was a potentially fair reason under the provisions of Section 98(1)(b) of the 1996 Act. The only outstanding issue was to determine the question of whether the dismissal was fair or unfair under the provisions of Section 98(4) of the 1996 Act.
9. At paragraph 10 of their decision the Tribunal conclude that they did not accept the Appellant's evidence in several key areas. In a material passage in paragraph 10 the Tribunal found:

"… Mr Shaw told the applicant that her income would be guaranteed for twelve months. In reaching this conclusion the Tribunal did not form the view that the applicant had deliberately lied to the Tribunal. It was clear that by the end of July 2000 the applicant was unwell. The Tribunal accepted that at the meeting on 4 August 2000 the applicant was suffering from stress. It agreed with her that, with the benefit of hindsight, she should not have attended that meeting. It was probable that she was unable to concentrate sufficiently to understand (or remember) what Mr Shaw told her. If she had been in better health, the Tribunal was in no doubt that she would have commented on the calculations. She would have understood the new commission scheme and how it affected her. The Tribunal concluded that the applicant had misunderstood the scheme. During the hearing the applicant showed signs of understanding the true effect of the proposal particularly when the respondent's position was put to her during cross-examination. The applicant told the Tribunal that her concerns were more to do with whether she could fit into the new structure. This statement led the Tribunal to conclude that she was unhappy about the prospect of not being able to deal with her existing clients. This was probably the real basis of her dissatisfaction with the proposed new arrangements. This was supported by the findings of fact that in the meeting of 4 June 2000 she told Mr Shaw that she would prefer to be an accounts manager looking after existing clients rather than a business manager bringing in new business. The applicant's misunderstanding of the scheme was compounded by the effect of her isolation at home and the fact that the respondent did not contact her between 4 August and early October 2000."

10. The Tribunal further find that there was sufficient advance warning given of the change in the organisation; that adequate consultation took place with the Appellant; that she was provided with details of the proposed new contract and that she was told how the new terms and conditions amounted to an improvement. Their conclusion was that the Appellant's objections to the new terms and conditions were therefore unreasonable and that she had not brought them to the Respondent's attention during the consultation process. They found expressly that the Respondents acted reasonably in offering the alternative job.
11. In relation to direct sex discrimination the Tribunal reminded themselves of the guiding principles to be applied as enunciated in the well known case of King v The Great Britain China Centre. They concluded that they were satisfied with the explanation given by the Respondents for the failure to compensate the Appellant with an appropriate payment. They found, at paragraph 12 that they were:

"… satisfied that the Respondent devised an appropriate method for determining which of those employees should be compensated for potential losses. The criteria were objective and were applied consistently. All employees, including the Applicant, were given calculations which were relevant to their personal circumstances. Some queried those calculations and in some cases the Respondent adjusted the figures. The Respondent did not make an ex gratia payment to all of the affected SBJ employees. It did make a payment to Mr Ward because the calculations demonstrated that he would suffer a loss as a result of the proposed new arrangements. It did not make any payment to the Applicant because the calculations showed that the Applicant would be better off under the proposed new arrangements. It followed that the reason for the failure to make an ex gratia payment to the Applicant had nothing to do with her sex."

12. The Applicant sought a review of the Tribunal's decision in a letter of 30 October expressing it to be an application for a review in the interests of justice. In a decision dated February 2002 this was refused. The Tribunal record that some matters being raised now by the Appellant were new, other matters had already been raised and had been taken into account. One ground in her application concerned evidence produced at the hearing about which no objection was taken at the time, although surprise about its late production was expressed by the solicitor then representing her. No issue arises today in respect of the way that the Tribunal dealt with that application for a review which was refused.
13. In her grounds of appeal, the Appellant makes a number of complaints which are summarised at paragraph 6 on page 1 of our bundle. They are as follows:

"The Respondents insisted that TUPE regs did not apply, therefore how could they then be allowed to rely on an Economic, Technical or Organisational reason.

If TUPE regs did indeed apply then the consultation process was wholly inadequate as illustrated by the respondents own notes of the meetings and the details appended.

Sex discrimination issues as detailed.

The respondents producing previously undisclosed information during cross examination."

These summarised grounds are then developed in the pages which follow. We have read them all very carefully. However, we are unpersuaded that any of the grounds sought to be advanced reveal any arguable errors of law in this Employment Tribunal's decision.

14. The first point raised, to which I have referred, seems to indicate a misunderstanding of the position by this Appellant. Clearly, initially, the Respondents were arguing that the TUPE regulations did not apply but, as has already been made clear, they conceded during the course of the hearing, for the purposes of the complaint, that they did. In relation to her complaint about late production of previously undisclosed information, this was dealt with in the decision on review, to which I have already referred. The point about it is that no objection was taken at the time. It does not seem to us therefore that there is any arguable error to be made now in an appeal about the way that the Tribunal dealt with that matter. The Appellant's contentions about the inadequacy of the consultation process seem to us to amount in reality to no more than an attempt to re-argue the case. They do not disclose, in our view, any arguable error on the part of the Tribunal. This Tribunal found against the Appellant on the evidence as to the adequacy of the consultation process. It is clear from the extracts from the decision to which we have already referred that the Tribunal accepted and preferred the Respondent's evidence on this.
15. The findings of fact and the Tribunal's conclusions do not, in our view, indicate any misdirection on their part or any other error of law in their approach or the conclusions at which they arrived. Similarly their findings on sex discrimination mean that this Tribunal preferred the Respondent's evidence and was satisfied by the explanation offered as to the lack of any payment to her.
16. We make these additional observations on the Appellant's grounds of appeal. Firstly, it is clear that the Appellant is now raising new allegations of sex discrimination which were never pleaded in her Originating Application or raised before the Tribunal below. She clearly cannot therefore raise them now as part of an appeal. Secondly, a recurring theme throughout these grounds of appeal involves substantial criticism, not of the Tribunal's decision, but of the conduct of her case by the solicitor who was representing her at the time. It is alleged, for example, that matters she wished to be raised and explored in evidence were either ignored or not pursued. We clearly express no view upon these criticisms because it seems to us that even if they were to be correct they are not errors of law which can be laid at the door of this Employment Tribunal. It is errors of law by the Tribunal only with which we are concerned.
17. For the reasons which we have set out in this judgment we are unpersuaded that there are any arguable errors of law in this decision. We therefore dismiss this appeal.