United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K PUTTICK Solicitor Advocate 2 Ryles Park Macclesfield SK11 8AH
For the Respondent	MR T J WALKER (of Counsel) Instructed By: London Borough of Hackney Hackney Town Hall Solicitors Davenport Lyons 1 Old Burlington Street London W1S 3NL


 


HIS HONOUR JUDGE J R REID QC:

1. This is an appeal by Mr Aniagwu from a decision of an Employment Tribunal held at London Central. The decision was promulgated on 8 November 2002 after a five day hearing which was followed by a day of deliberation by the Tribunal members in chambers. By the decision the Tribunal held that Mr Aniagwu had been unfairly dismissed by the London Borough of Hackney from his position as a Senior Finance Officer (grade PO1) because the Council failed to utilise fair procedures when selecting him for redundancy. The Tribunal also held that he was not selected for redundancy because of his trade union activities, nor was he subjected to any detriment falling short of dismissal because of those activities. His claims based on those grounds therefore failed. The Tribunal adjourned the hearing in order to obtain further material in order to enable it to make an order under section 115 of the Employment Rights Act 1996.

2. Mr Aniagwu appealed against the decision that he was not selected for redundancy because of his union activities and that he was not subjected to any detriment falling short of dismissal on those grounds.

3. Mr Aniagwu's notice of appeal was lengthy, as was the skeleton argument (which had a 22 page chronology annexed to it) put in on his behalf. It complained, in essence, that the decision was wrong, that it failed to mention various material matters, that it failed to deal with various matters of evidence, and that it was a decision to which no reasonable tribunal could have come. It was said that if the Tribunal had considered the evidence properly it would have come to a different conclusion. It was submitted that although the Tribunal found that he was dismissed by reason of redundancy and that he was not selected by reason of his union activities, the Tribunal erred in law in that it did not make any findings as to why he was selected for redundancy. It was asserted that the duty to make adequate and clear findings was mandatory and that the Tribunal erred in law by failing to do so. Reliance was placed in the course of the hearing on Maund v Penwith BC [1984] IRLR 24 and Driver v Cleveland Structural Engineering Co Ltd [1994] IRLR 636.

4. At the start of the hearing we pointed out to Mr Puttick, the solicitor advocate who had prepared the Notice of Appeal and represented Mr Aniagwu, that contrary to rule 3(1)(b) of the Employment Tribunal Rules Mr Aniagwu had not sought or obtained Extended Reasons from the Employment Tribunal. The only reasons before us were the short form Summary Reasons. We also pointed out that Mr Aniagwu had not sought or obtained any notes of the evidence before the Tribunal. In the absence of the Tribunal's full reasons and a note of the evidence as it was before the Employment Tribunal we felt that it would be impossible for us to determine in Mr Aniagwu's favour any appeal based on failure to make findings of fact or on perversity by the Tribunal in finding as it did on the evidence. We invited Mr Puttick to consider whether he should make an application for an adjournment to apply to the Employment Tribunal for Extended Reasons (even though long out of time) or to apply to the Employment Appeal Tribunal for a direction that notes of evidence should be supplied. Mr Puttick did then make those applications and Mr Walker, counsel for Hackney, opposed the application. Mr Walker indicated that if the application was successful he would make an application for the wasted costs of the hearing. At this point Mr Puttick appeared to backtrack somewhat from his position that he wanted an adjournment, so we rose a little early for lunch to give him and his client an opportunity to decide whether or not to persist in the application. After the lunch adjournment Mr Puttick indicated that he was not persisting in his application for an adjournment but would proceed with the appeal on the limited grounds which appeared to him to be open on the face of the Summary Reasons.

5. As appears from the Summary Reasons the Tribunal found as follows:

5.1 Mr Aniagwu was employed by Hackney from 2 April 1990 until 31 January 1998, initially as Principal Finance Officer and from January 1996 (after a re-organisation) as Senior Finance Officer, throughout paid on grade PO1. At the end of Mr Aniagwu's time with the Council there was a re-structuring which created the need for a number of redundancies.

5.2 Mr Aniagwu was the only grade PO1 selected for redundancy. He would not have been dismissed but for the redundancy. The system for selection was "haphazard, poorly documented and lamentably applied". There was inadequate consultation with Mr Aniagwu. He was not even selected for interview for any post which he might have been able to fill after the re-organisation.

5.3 The "procedures adopted by the [Council] to lead to the identification of those who had been made redundant were inadequate, chaotic and unfair in terms of both consultation and selection". His dismissal by reason of redundancy was therefore unfair.

5.4 "The [Council] did not make an overwhelming case that the selection for redundancy was not based on Mr Aniagwu's Trade Union activities, but the Tribunal was convinced on all the evidence that they had discharged the burden upon them."

5.5 The manager identified by Mr Aniagwu as most likely to be ill-motivated towards him by reason of his Trades Union activities had left over six months before Mr Aniagwu was selected for redundancy.

5.6 There was nothing in the evidence to justify inferring that there was some form of conspiracy against Mr Aniagwu. "Nothing in the case indicated the [Council] would or did respond adversely to Trade Unions or those who undertook Trade Union activity- indeed, if anything, the evidence showed the [Council] to have dealt positively with issues raised by Mr Aniagwu and to be supportive of the unions."

5.7 Mr Aniagwu did not establish any of the four grounds on which he said he had been penalised short of dismissal for union activities. One of the allegations was withdrawn by Mr Aniagwu during the hearing. The remaining three were (1) his selection for redundancy (rejected), (2) his being forced to resign (he wasn't; he was dismissed), and (3) delay in responding to a grievance procedure (administrative error at a chaotic time)

6. On behalf of Mr Aniagwu it was said that "it was incumbent on the Tribunal to respond to the allegations made" and that "we don't see the evidence as to why he was selected for redundancy". Mr Puttick was clearly anxious to examine the history of Mr Aniagwu's relationship with the Council as his client understood it to be. This he could not effectively do in the absence of Extended Reasons and notes of evidence. Great play was made of the fact that he was the only person of his grade made redundant and of the fact that he was not even interviewed for possible alternative positions. It was suggested that the fact that Mr Aniagwu's leaving date was brought forward (though he was still paid to the original leaving date) was of significance, because it meant that he no longer had "redeployee status" to apply for any posts that came vacant between the original leaving date and the new advanced leaving date. He was, it was said, deliberately excluded from the selection process. All in all, it was submitted that there was more than enough to go on in the Summary Reasons to show that he was selected for redundancy because of his union activities and that there was "an undischarged evidential burden" on the Council.

7. Mr Puttick submitted that this case was very similar to Maund. His argument ran: the employer had to produce evidence which appears to show the reason for the dismissal. If he did that then there is an evidentiary burden on the employee to show that there is a real issue as to whether that reason is the true reason. Once he had done that, the onus was on the employer to prove the reason for the dismissal. Mr Aniagwu had produced evidence which cast doubt on the assertion that he was dismissed for redundancy, and the Council had not discharged the onus of showing that redundancy was the true reason. It was a material factor that Mr Aniagwu was not offered even an interview for an alternative job: see the Driver case at paras 19 and 23. The Tribunal, it was said, failed to take account of this.

8. On behalf of the Council Mr Walker accepted that the burden of showing the reason for the dismissal and that it fell within section 98(2) of the Employment Rights Act 1996 was on the Council. He said that the Council had done this by showing that the reason for the dismissal was redundancy. The question then was "Was the dismissal fair?" That question had to be answered with sections 152 and 153 of the Trade Union and Labour Relations (Consolidation) Act 1992 in mind. Under those sections Mr Aniagwu's dismissal was to be regarded as unfair if the reason or the principal reason why he was selected for dismissal was his union activities. In this case, he submitted, the Employment Tribunal had answered that question in the negative. It had then had to go on to consider whether the dismissal was fair. The Tribunal had found that it was not because of the way in which the procedure was carried out. He submitted that the Tribunal had asked itself the right questions: it had asked whether redundancy was the reason for the dismissal; it had asked whether the selection for redundancy was because of Mr Aniagwu's union activities; it had asked whether the procedure by which Mr Aniagwu was selected was fair. It had answered all those questions and had made no error of law in the findings. The Tribunal had considered the points made by Mr Puttick and had reached a conclusion on the facts. It had not made the findings Mr Aniagwu wanted, but that did not give Mr Aniagwu any right of appeal.

9. In our judgment Mr Walker's submissions are correct. There is no error of law to be seen in the decision of the Tribunal. It determined first that there was no doubt that the Council's requirement for employees to carry out core functions such as accounting and administration had very substantially reduced, and that the "principal reason for his dismissal was redundancy". The Tribunal then went on to consider the assertion that Mr Aniagwu was selected because of his Trade Union activities. It rejected that assertion. It then had to consider whether the procedure adopted was fair and held it was not. The Tribunal therefore held that the dismissal was unfair. The Tribunal then considered whether the Council had taken action short of dismissal to penalise Mr Aniagwu for his union activities and held on the fact it had not. On the face of the decision it cannot be said that there is any error of law and in the absence of Extended Reasons or any notes of evidence it is quite impossible to say that the decision is perverse or one to which no properly directed tribunal could have come.

10. In these circumstances the appeal will be dismissed.