United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr D B Stevenson, Solicitor Of- Messrs Thompsons Solicitors 16-18 Castle Street EDINBURGH EH2 3AT
For the Respondent	Mrs S MacKessack, Solicitor Of- Fife Council Law & Administration Service Litigation and Advice Team Town House KIRKCALDY KY1 1XW

SUMMARY
UNFAIR DISMISSAL

REASONABLENESS OF DISMISSAL

PRACTICE AND PROCEDURE

REVIEW

DISPOSAL OF APPEAL

Dismissal for substantial other reason: ET found it fair but gave no or no adequate reasons, certainly none for rejecting the detailed points which it is accepted the Applicant made. Burns v Consignia inappropriate, particularly where a review has already been (wrongly) refused by the ET, as here. Appeal allowed and remitted to same ET.


 


THE HONOURABLE MR JUSTICE BURTON (P):

1. This has been the hearing of an appeal, against the unanimous decision of the Employment Tribunal in Edinburgh, after a hearing on 26, 27 and 28 April 2004, in a judgment handed down on 3 August 2004. By that decision, the Tribunal concluded that the Respondent, Fife Council, had discriminated against the Applicant on grounds of sex, which decision is not sought to be appealed by the Respondent, but that the Applicant's claim for unfair dismissal was dismissed.
2. The Applicant was employed from October of 1981 by the Respondent, as a home carer. There came a time when, for what the Tribunal found to be good commercial reasons, it became necessary to change the terms and conditions of employment of the Respondent's employees, including the Applicant, and, in due course, in circumstances, which, for reasons which will become apparent, we do not need to describe, the Applicant was dismissed, with effect from 21 November 1999.
3. In fact, he was re-engaged, and his employment continued on different basis for some time until, sadly, he left in other circumstances, but the Tribunal found that the November 1999 events amounted to a dismissal, and that finding is not sought to be challenged, and that it was for a substantial other reason. There is a clear typographical error in paragraph 8 of its judgment, in which the word "other" is omitted, and we shall read it in, but, subject to that, that finding is set out in what is the only conclusory paragraph in the judgment, so far as it relates to unfair dismissal, namely paragraph 8, as follows:-

"In relation to the dismissal, which the Tribunal unanimously agreed did take place when the letter of 21^st November 1999 was sent, the Tribunal, while it felt that the exercise carried out by the respondents could have been better managed, thought that the dismissal was fair for a substantial [other] reason. The respondents had statutory responsibilities in providing care for those in need of it. These had increased over the years causing their standard conditions of employment of carers to become obsolete and making it impossible for the respondents to carry out their obligations."

As a result of that finding, the Tribunal decided that there was a reason within s98 of the Employment Rights Act 1996 ("ERA"), by reference to which it could be fair for the employer to dismiss the Applicant.

4. The Tribunal was then required to consider the issue of reasonableness, under s98(4) of ERA which reads as follows:-

"(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."

5. That subsection must be imprinted on the minds and hearts of all Employment Tribunal Members, and, probably, on the hearts and minds of all litigants in the Employment Tribunal. It is, however, no harm for it to be recited in the judgment, and it was not so recited here. It may be that if it had been, the Tribunal would have been spurred to deal with that issue rather more fully than it did. We have already read that part of paragraph 8 in which its conclusion was set out perfectly adequately, albeit imprecisely, in respect of the existence of substantial other reason, but it included the words "while [the Tribunal] felt that the exercise carried out by the respondents could have been better managed." Those words do not specifically belong in that part of the conclusion to which we have referred, but would have been better considered on the question of fairness under s98(4); and, in any event, no particulars are given by the Tribunal of what it had in mind, one way or the other, in that regard.
6. If we disregard such parenthesis contained in that part of paragraph 8 which deals with the establishment of the reason, the part of that same 'conclusory' paragraph which deals with reasonableness is very exiguous indeed. It continues as follows:-

"The respondents made reasonable efforts to negotiate the new conditions, inviting the Trade Union concerned and offering consultations with any employee who was not happy with the new terms. The Tribunal thought that it was not insignificant that out of a large number of staff involved, only one person, the applicant, remained discontented about the new terms proposed. Accordingly the Tribunal unanimously took the view that the actions taken by the respondents which brought about the applicant's dismissal lay within the band of reasonableness in respect of its actions."

7. There are two specific comments, and one general, that can be made by reference to that passage. The general comment is, that, on any view, it sets out, very shortly indeed, what the reasoning of the Tribunal was, by any reference to its obligation to do so. The Appellant, represented today by Mr Stevenson, his solicitor, although represented below by Mr Hunter, a trade union official, has drawn to our attention, the well-known authorities of Meek v City of Birmingham District Council [1987] IRLR 750 and English v Emery Reimbold & Strick Ltd CA [2003] IRLR 710, from which it is plain that a Tribunal is under an obligation to give sufficient reasons to show how its conclusion is arrived at.
8. The two specific points that can be made, are as follows. First, the word "Accordingly" is used at the outset of the final conclusory sentence of paragraph 8. That suggests that it may be that the only matters which the Tribunal took into account are those which it has recited in that paragraph. It is always a material factor for a Tribunal to consider, in a substantial other reason case, that all other employees, or most other employees, apart from the applicant, have accepted a change. Such, for example, was referred to by Lord Johnston in Grampian Country Food Group Limited v McInally EATS/0035/04 (unreported) as an important question, and also in Catamaran Cruisers Limited v Williams [1994] IRLR 386 the Employment Appeal Tribunal per Tudor Evans J sets out, in paragraph 28, the kind of factors which a respondent needs to consider on a reasonableness test in relation to substantial other reason; and one of the factors is whether the applicant stood alone, or nearly alone, in relation to his or her attitude of rejection.
9. But this Tribunal appears to have elevated that point into its main consideration, coupled with its statement that the Respondent made:

"reasonable efforts to negotiate the new conditions, inviting the trade union concerned, and offering consultations with any employee who was not happy with the new terms."

That suggests that there was negotiation with the trade union concerned, but it is no finding as to whether or not there was actual consultation with the Applicant, or whether such opportunity was given to him or, indeed, rejected, if it was, by him.

10. That then is a specific positive point, made by reference to the judgment itself. But then there is the negative point, which is forcefully made by Mr Stevenson in his very full and detailed skeleton argument, arising out of his Notice of Appeal. He there makes the submission that the Tribunal was addressed on a number of specific arguments, which, if they were addressed, were plainly required to be taken into account by the Tribunal in arriving at its decision on reasonableness. There is, of course, no specific list of items to be taken into account by a Tribunal or, indeed, by a respondent, in considering a dismissal for a substantial other reason, although Tudor Evans J's list in Catamaran may be helpful. It will always depend, as s98(4)(b) says, upon "equity and the substantial merits of the case".
11. There is no doubt in this case that the points which are catalogued by Mr Stevenson were indeed raised before the Tribunal, because we have the benefit of the detailed skeleton argument in writing, which was put before the Tribunal on the Applicant's behalf at the hearing, by way of closing submissions. That document runs to 24 pages.
12. In any event, Mrs MacKessack, who appeared below for the Respondent, and appears again before us, does not take issue with the fact that all those matters were, indeed, put before the Tribunal. They raise the following issues, as to which we express no view, one way or the other, because the fact finding is not for us but for the Tribunal:

12.1 that there was no or no adequate individual consultation of the Applicant.

12.2 that there was an issue to be resolved by the Tribunal as to whether the Applicant was a full time or a part time worker; the question of full time status was significant because, as the Applicant submits, of the evidence that special protection was offered to those who worked on a full time basis, so that it was important as to whether the Applicant was treated as a part time worker and not as a full time worker and, if so, whether he was wrongly so treated, and thus deprived of the protection which should have been given to him, and was given to full time workers.

12.3 that there was dispute about the application of something called the Flexible Contract Scheme; that was said to have been a scheme which was in any event unfair but, whether or not unfair, was misapplied to the Applicant.

12.4 finally that there was an issue as to the alleged conduct of one of the Respondent's employees, a Mrs Wilson, which was said to impinge upon the issue of fairness.

13. Particularly given Mrs MacKessack's acceptance of the position, we have no doubt that all these matters were put before the Tribunal and, were, if not crucially relevant, certainly materially relevant to the Tribunal's conclusions, and were not dealt with by the Tribunal in its judgment.
14. Of course, a tribunal does not need to deal with every contention put before it, but it needs to address the totality of the argument, and certainly so if matters are specifically put forward in detail in situations where there were issues, such as, for example, whether the Applicant was full time or part time, which manifestly would have required to be resolved in order to decide whether the Respondent was acting reasonably. In those circumstances, this is indeed a Meek appeal, but one of a particularly substantial kind.
15. Since December 2002, the practice has been operated in the Appeal Tribunal, primarily in England and Wales rather than in Scotland, that where a Meek-based appeal is put forward, the appeal can be, and very often is, referred back to an employment tribunal to ask whether certain matters were raised - and here of course there is no doubt about that - and if so to give its reasons for rejecting those points, if they were considered and rejected. This is known as the Burns procedure, after Burns v Consignia [2004] IRLR 45.
16. It is, in our judgment, too late now for that to be a sensible course to be followed in this case, where there are so many points which were plainly and admittedly, put before the Tribunal, and not dealt with by the Tribunal, particularly now that this case has reached a final appeal hearing. This is in fact a case, where, essentially, the Tribunal appears not to have addressed, or at any rate, if it did address, not to have dealt with, the large part, if not the entirety, of the Applicant's case.
17. But the very fact that the Burns procedure might have been considered, at least in relation to a case in which somewhat fewer matters were said to have been not addressed by a Tribunal, only emphasises, in our judgment, that this would have been just the case where this Tribunal, given an opportunity to do so, would have wished to have accepted a review application, in order to deal adequately with all these points. And this is a case in which that very opportunity was indeed given to this Tribunal, by the making to it of an application to review, accompanied by a very detailed setting out of the issues to which we have referred, which had not been dealt with by the Tribunal, and by reference to the very closing submissions which had been before the Tribunal.
18. By letter dated 30 August 2004, the Tribunal Secretary responded to the review application that, "While the Chairman accepts there is no bar to correcting even a major error of law on review, your concerns amount to a detailed and multi-headed critique of the decision itself and of the written reasons … In these circumstances, the Chairman has concluded that the matters you have raised are such that if errors have been made they are of a kind which would fall to be corrected by the EAT. In these circumstances, your application for a review has been refused."
19. We respectfully disagree with the Chairman in this regard. Of course there are cases in which, notwithstanding the best efforts of the Tribunal, errors of law are made by the Tribunal which are best corrected on appeal. But this Tribunal is dedicated to correcting errors of law, not errors of fact, and a Meek point is almost always only a point of law because facts were not adequately considered, or may not adequately have been considered, by a Tribunal. The best body to address whether they were considered, and whether it concluded that they would have made any difference to its decision, is the Tribunal itself, which is the judge of fact; and the likely result of a Meek appeal, if it is not curable by a Burns procedure, is, as has occurred in this case, that some many months later it comes before an Appeal Tribunal, and it is inevitably referred or remitted back to either to the same or a different Employment Tribunal, with very considerable additional costs and delay.
20. We conclude that this was an archetypal and perfect case in which the Tribunal itself could have concluded whether there was anything in the points, which it did not appear to have addressed in its judgment, and could have dealt with them as long ago as last August, which would have saved both expense and some seven or eight months of delay.
21. In those circumstances, absent a review, we have no alternative, as Mrs MacKessack herself has been constrained to accept, but to make an order allowing this appeal and remitting the decision to an employment tribunal.
22. The issue is whether it should be the same or a different tribunal. No suggestion is made of bias or partiality on the part of this Tribunal. The decision is not suggested, contrary to the apparent concern of the Secretary of the Tribunals in the letter of 30 August 2004, to be either flawed or infected by an erroneous approach in law.
23. This is a case, in which, as we have indicated, the Tribunal has simply only got to half-way, because it has not apparently addressed the case for the Applicant. The onus does not of course rest on either party on the issue of reasonableness, to be considered under s98(4), and by reference, insofar as assistance is gained from those cases, to Catamaran and/or Grampian, to which we have referred.
24. This is a case where the Tribunal has already spent some three days hearing evidence, albeit now some year ago, and we, on proportionality grounds, do not conclude that it is sensible to send it back to a different tribunal, and neither party has asked us to do so, both agreeing that it is appropriate for the matter to be remitted to the same Tribunal.
25. We accordingly make such an order, although hoping that in the meanwhile it may be possible for the parties to resolve their differences, if appropriate with the assistance of conciliation by ACAS.
26. The hearing will be a rehearing, but clearly the Tribunal will be assisted by the notes of evidence that it already has, so that there will be no need for evidence already taken and recorded in those notes to be retaken; but both parties are to be at liberty to recall any further evidence that is thought to be necessary, and the issue of reasonableness, although, we emphasise, not the issue of substantial other reason, is wholly at large.
27. On that basis, we allow the appeal and remit the matter to the same Tribunal for a further hearing.