United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR STEFAN BROCHWICZ LEWINSKI (of Counsel) Instructed By: Rochdale Borough Metropolitan Council PO Box 15 Town Hall Rochdale OL16 1AB
For the Respondent	MISS MELANIE TETHER (of Counsel) Instructed By: UNISON Employment Rights Unit 1 Mabledon Place London WC1H 9AJ


 


JUDGE J R REID QC:

1. This is an appeal from the decision of an Employment Tribunal held in Manchester. The hearing took place on 1 December 2000. The decision was sent to the parties on 19 February 2001.
2. By the decision the Tribunal unanimously held that the Applicant, Ms Jentas, had been unfairly dismissed by the Respondent, Rochdale Metropolitan Borough Council. Since that hearing the parties have agreed the compensation payable in the event that this appeal fails. Against that decision Rochdale have appealed.
3. The facts can be taken in pretty short form. Ms Jentas was on a Temporary Register which was maintained by the Council from which it could recruit temporary workers. On 5 October 1998 she was selected from the Temporary Register to commence a temporary contract as a Mailroom Clerk. This was a one month contract but it was repeatedly extended until July 1999, when she was transferred to the Benefits Service within the Housing Department.
4. In January 2000 previously temporary posts were advertised as permanent positions. She applied for a post as Benefits Assistant but was not short-listed. In April she applied for a Benefits Officer post. She was interviewed, but not appointed, and in May or June she applied for another Benefits Officer post. Again, she was interviewed but not appointed.
5. On 31 May 2000 her temporary contract was terminated. The Tribunal took the view that the termination amounted to an unfair dismissal, having regard to the provisions of section 98(4) of the Employment Rights Act 1996 because it was apparent that no effort was made to determine whether other suitable temporary work was available in other departments to which she could have been transferred. They took the view that, bearing in mind the size of the Respondent's organisation, the overall length of Ms Jentas' service, the lack of any complaint about the quality of her work and the fact that she had been previously transferred, it was unreasonable of the employer not to make any effort to determine whether other suitable temporary work was available.
6. The Council's first ground of appeal is that the Tribunal failed to take proper or sufficient account of the factual circumstances of the case. Reference is made to findings made at paragraphs 15(a) to 15(d) of the findings of fact, which were in these terms:

"(a) [Although] it was not unreasonable to fail to offer the permanent posts to the applicant without open competition, because even though a temporary employee may have been carrying out the job adequately, we feel that an employer is entitled to consider a wider pool of candidates and appoint on merit;

(b) the applicant was fairly treated throughout the selection procedure for the permanent posts for which she applied and no criticism has been made of the selection process;

(c) the applicant was fully aware that she was employed in a temporary capacity and that there was no guarantee of future work at the ending of the contract; and

(d) the Tribunal was satisfied that there was a genuine restructuring in the Housing Services Department and that the creation of permanent posts obviated the need for temporary staff."

7. Reference was also made to evidence said to have been given by Ms Jentas herself in cross examination. We should say, so far as that is concerned, we do not have any notes of evidence; none were requested.
8. So far as that ground of appeal is concerned we need say very little. The position, in our judgment, is that it is a matter for the Tribunal as to what weight they give to what part of the evidence which is given before them. We were referred to Eclipse Blinds Ltd v Wright [1992] IRLR 133. I quote briefly a passage from the headnote:

"The weight to be attached to any evidence in a case is a matter for the Tribunal determining the facts. It can never be for an appellate Tribunal concerned only with errors of law to take upon itself the task of deciding what weight should be attached to particular facts."

And, a little further on:

"What inference is to be drawn from facts is a matter to be determined by the Tribunal hearing and deciding the facts, unless there are no facts from which any particular inference could properly be drawn."

It does not seem to us that in this case an appeal can properly be based on a suggestion that no proper or sufficient account was taken of the factual circumstances.

9. The second ground of appeal is that it was an error of law for the Tribunal to hold that that the Appellant was under an obligation to find alternative work for the Respondent and/or afford her the rights of a permanent employee when, inter alia:

(1) the Respondent was not a permanent employee;

(2) contractually the Respondent had no such rights;

(3) it had been made fully known to the Respondent that upon the work on which she was temporarily engaged coming to an end, she would revert back to the Temporary Register as a matter of course;

(4) this was fully understood, appreciated and expected by the Respondent; and

(5) such finding caused the Respondent to be afforded the rights and privileges of permanent employees to the detriment of other members of the Temporary Register, in the absence of any proper or objective selection or recruitment procedure having been applied in the determination of whether the Respondent should receive such rights and privileges.

10. It is sufficient, I think, to dispose of that ground to say that there was no finding that there was an obligation on the Appellant to find alternative work for the Respondent and/or afford her the rights of a permanent employee. What the finding was, was that the employer did not act reasonably in the circumstances:

"It was apparent that no effort was made to determine whether suitable temporary work was available in other departments to which the applicant could have been transferred."

11. That is not a finding that there was any obligation to offer her alternative work. The failing was simply in failing to make any effort to determine whether suitable temporary work was available in other departments. If they had made the appropriate enquiry it might well have been that they would have found, "Yes, there was a job available elsewhere, but no, it was not appropriate to appoint Ms Jentas to that job for any number of reasons". The ground of appeal as formulated is, in our judgment, one which cannot be sustained.
12. The third ground of appeal is that the Appellant's actions were within the range of reasonable responses of a normal employer in the circumstances of the case. This is, essentially, a perversity allegation and the first point that was taken against this ground of appeal by Ms Tether, on behalf of Ms Jentas, was that it was not open to the Appellant to pursue that ground of appeal in the absence of the notes of evidence below. She referred us to a passage in the judgment of Lord Donaldson, the then Master of the Rolls, in Piggott Brothers v Jackson [1992] ICR 85, at p90:

"Following receipt of that notice of appeal, the appeal tribunal made a direction that only the notes of evidence of the expert witnesses be transcribed for the purposes of the appeal. Let me say at once that it is very important that industrial tribunals should not be burdened with transcribing notes of evidence which are irrelevant to any appeal on a question of law. However, I fail to understand how if an appeal is based upon, or includes, an allegation that the industrial tribunal's decision was perverse, it is possible to contemplate allowing the appeal without having access to all the evidence bearing on the alleged perversity. In the context of this case, this had to include the evidence of the employees themselves, unless it was accepted that they had acted reasonably which would probably have been fatal to the appeal. It also had to include the evidence of the employers and in particular evidence of how they viewed the employees' conduct and the problems which they, as employers, faced in the situation as it developed."

13. The Appellant, in answer to that, referred us first to Webb v Anglian Water Authority in which the Employment Appeal Tribunal [19981] ICR 811, said:

"That an application for the chairman's notes of evidence to be supplied to the parties would only be granted where the applicant showed that the notes were relevant for the purposes of the appeal; that the notes would only be relevant where there was an allegation in the notice of appeal of no evidence to support a specific finding of fact, or that the industrial tribunal had failed to make a specific finding, or that they had misunderstood the evidence or that their finding was perverse."

14. We were also referred to Hawkins v (1) Ball (2) Barclays Bank [1996] IRLR 258 and, in particular, paragraphs 15 to 18 inclusive of the judgment delivered by Keene J. He said this:

"The EAT Practice Direction of 17 February 1981 makes it clear that notes of evidence would only be ordered where they are necessary for the purpose of the appeal. We do not accept that such notes become necessary automatically upon an allegation of perversity being raised. Nor do we read the decision in Piggott Brothers & Co Ltd as suggesting anything to the contrary. In that case, the tribunal below had found that the dismissals were unfair in all the circumstances. The appeal against that decision alleged that that finding was perverse. The Court of Appeal, perhaps not surprisingly, took the view that that ground of appeal could only be considered if all the chairman's notes were available. The Court of Appeal did so because that argument required a consideration of all the evidence so as to assess the fairness or otherwise of the dismissal. That is not this case. It is important to recognise, in our view, that allegations of perversity on appeal may take different forms and we do not read Lord Donaldson's comments as intending to apply to all cases where such an allegation is made, whatever may be the basis for it. In the present case, the allegation of perversity rests upon a specific and much more limited platform as we have already indicated. Nor is the appellant assisted by Martin v MBS Fastenings (Glynwed) Distribution Ltd. The passage from that decision which is relied upon by the appellant also says this:

'If it is intended to appeal upon the ground that there was not evidence to support the tribunal's findings, the appellant must take the necessary steps to obtain a note of the evidence.'

That is essentially dealing with a particular kind of perversity argument, namely, one where it is said, in effect, that there was no evidence for a particular finding or findings reached by the tribunal below. In those circumstances, it may often be the case that it will be necessary to produce the chairman's notes. An allegation that there was no evidence for a particular finding will often necessitate looking at all the evidence and that can only be done by obtaining the chairman's notes but, again, that is not this case.

It is important to bear in mind what was said in Webb v Anglian Water Authority [1981] IRLR 494 and, in particular, at p.496:

'Before any such order is made, the party seeking the notes should specify the exact finding which is attacked or the finding which he says ought to have been made. After all, the parties have been present at the industrial tribunal, they know the evidence which was given to the industrial tribunal and, before raising any allegations as to the findings of fact, they ought to know which findings they are challenging. If a party cannot, or does not, narrow down in this way the allegations of fact which are to be challenged, in general we think the notes ought to be refused.'

We are firmly of the view that general allegations of perversity are not enough. Such allegations will frequently merely be a pretext for a fishing expedition."

15. In this particular instance the allegation of perversity was on a limited platform, namely, given the findings of facts which the Tribunal had made, the conclusion which they drew from their own findings of fact was a perverse one. In those circumstances the notes of the Tribunal below were not required and it cannot be said that the absence of those notes precludes the perversity ground of appeal from being persisted in.
16. Returning to that ground of appeal, section 97 of the Employment Rights Act 1996 gives certain rights to temporary workers. By section 98(1) the Act provides:

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

a) the reason (or, if more than one, the principal reason) for the dismissal, and

b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held."

Pausing there, what we are concerned with is a "some other substantial reason" case.

Section 98(4) provides:

"(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 dismissing the employee, and

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

17. In this instance there was no doubt that the reason for dismissal was some other substantial reason. The question was, whether it was fair in all the circumstances. In other words, whether it should be determined as having been fair in accordance with equity and the substantial merits of the case.
18. The Appellant relied on North Yorkshire County Council v Fay [1985] IRLR 247, as indicating that where a temporary employee was dismissed at the conclusion of a fixed-term contract, or on coming to the end of that temporary placement, the dismissal would be for "some other substantial reason" and, generally speaking, would be fair. That case does not, it seems to us, afford to the Appellant the support which it was hoped by the Appellant it did. The case was one in which the employee was asserting that she had been dismissed by reason of redundancy. The Court of Appeal, reversing the Employment Appeal Tribunal and reinstating the decision of the Employment Tribunal, held that she was not dismissed by reason of redundancy. The only issue as to whether the dismissal was fair was as to whether there had been a breach of her contract in dismissing her. That decision was made against the employee. The decision of the Court of Appeal does not go on to deal with the point which clearly was not raised before it, as to whether the mere termination by effluxion of time or by the ending of the need for the temporary employment of a temporary worker's contract, amounted to a fair reason for dismissal, as well as being a substantial one. We therefore found that particular decision of limited assistance in looking at the facts of this case.
19. Here, what we had was a case where there was undoubtedly a dismissal for "some other substantial reason". The question is whether it was open to the Employment Tribunal to hold that the dismissal was in accordance with equity and the substantial merits of the case.
20. In our judgment the decision to which the Employment Tribunal came was a sustainable finding on the facts. We do not say that it is the decision which we ourselves would have reached. It is irrelevant whether or not we would have come to the same conclusion. The facts in this particular case were special facts. Here was a supposedly temporary employee who, by reason of a series of rolling contracts, had logged up a substantial period of service, some 20 months. She was someone who had been moved from one position to another. She was someone who, on the findings of the Tribunal, had been anxious to obtain a permanent position but had not done so. She was someone about whose capacity there was no complaint.
21. In all those circumstances it was, in the judgment of the Tribunal, unfair for the employer not to consider whether suitable temporary work was available in another department to which she could be transferred. It may be if they had done so there would have been no such work available. As I have already said, it may have been that, even if there had been, there would have been countervailing factors which would have meant that it would not be appropriate to make an appointment of Ms Jentas to that temporary vacancy. Such factors might have included the need to ensure the smooth running of the Register system, it might have included the need to ensure fairness to other persons on the Register, it might have included a fear that by giving her yet another temporary appointment they would have been creating a second class tier of quasi-permanent staff.
22. All of those are matters which, had the employer done as the Tribunal thought it should have done, could have been taken into account in determining whether or not a further offer of temporary employment would be made and they are all factors which would have been relevant (if the parties had not compromised the remedies disposal) on a remedies hearing and they might, had the evidence turned out that way, have resulted in a minimal award.
23. The position in this case was a special position. It was a one-off case on particular facts. It is not a case which gives rise to any general principle, nor do the findings of the Employment Tribunal give rise to any basis upon which it can be said that the rights of temporary workers are being enhanced. It will be of no assistance whatsoever to any other temporary worker in any future case.
24. The position so far as the appeal is concerned is that the conclusion was one to which the Employment Tribunal was entitled to come and it is one which, whatever may have been the views of the Members of this Tribunal, had we been sitting as Members of the Employment Tribunal, we cannot as Members of the Employment Appeal Tribunals disturb.
25. In those circumstances the appeal is dismissed.