United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr S C Miller, Solicitor Messrs MacRoberts Solicitors 152 Bath Street Glasgow G2 4TB
For the Respondent	Mr G Millar, Solicitor Messrs Harper Macleod LLB 14-18 Cadogan Street Glasgow G2 6QN


 


SUMMARY

Claimant found to have been unfairly dismissed in respect that when she was made redundant the respondents told her, in effect, not to bother applying for a new post that they were creating. The claimant did not, accordingly, apply for the post. The tribunal found that the chances of the claimant securing the post had she been fairly treated were 80%. The Respondents appealed against that finding on the grounds that it was perverse. The EAT upheld the appeal on that ground and substituted a finding that the chances of her securing the post were 20%.


 


THE HONOURABLE LADY SMITH

Preliminaries

1. This is an appeal from the judgment of the Employment Tribunal sitting at Glasgow, Chairman Mr HJ Murphy, registered on 22 November 2005, in which it was determined that the claimant had been unfairly dismissed by the respondents in circumstances where she had been made redundant. The case was continued for quantum to be assessed. The claimant's dismissal had been found to have been unfair in respect that the respondents had, in effect, told her that there was no point in her applying for a new post that they were creating. The tribunal determined that the claimant would have had an 80% chance of being successful in securing that post had she been treated fairly. It is against that 80% finding that the present appeal is brought.

Background

2. The tribunal's findings of fact indicate the following narrative of events.
3. The respondents are an institution of higher education. They are, accordingly, subjected to governmental Quality Research Assessments from time to time, the outcome of which can affect their public funding levels. The respondents are next due to undergo such an assessment in 2008, a matter which was of concern to their director, Professor Reid. The claimant began working for them in 1985 and was appointed head of textiles in 1999.
4. In late 2000/early 2001, the respondents were successful in securing funds from the Scottish Higher Education Funding Council ("SHEFC") to carry out research into the possible commercial application of digital printing onto fabrics and textiles. The funding was to extend over a period of three years and was to be for the purpose of setting up a research centre which came to be known as the Centre for Advanced Textiles ("CAT"). CAT was to provide educational and research facilities, creating an infrastructure for research in the hope that by the end of the three year period it would be generating its own income from commercial activities so as to enable it to continue with its research and educational facilities without the need for public funding.
5. The claimant had been involved in the preparation of the bid for funding and had played an important part in the success of having it accepted.
6. CAT required a director. It was to be a full time post. The respondents were not successful in attracting someone from outside and the claimant applied for the post. She was appointed on a fixed term contract. She gave up her post as head of textiles to take it up. When she was appointed, the respondents' director, Professor Reid, had considerable doubts as to her suitability. As director she was responsible for managing CAT. In particular, she had responsibility for all research functions and outcomes although the job involved management, administration and the commercial activities of CAT in addition. Her line manager was Alison Harley.
7. Progress of the work of CAT was slow at first. It seems that the problem was on the research side. Professor Reid became increasingly concerned that the quantity and quality of its research was not up to standard. The quantity and quality of research fell below that reasonably to be desired. Professor Reid threatened to close down CAT for that reason on a number of occasions between March 2003 and March 2004.
8. On 19 February 2004, CAT was invited by SHEFC to present a paper entitled "Effective Project Management" to a group of vice chancellors and finance directors of British universities and Higher Learning institutions. The tribunal inferred from the fact of that invitation that SHEFC approved of the manner in which the claimant managed CAT. No findings are, however, made, as to the nature and extent of SHEFC's knowledge as to how it was being managed at that time or as to whether they were aware of Professor Reid's concerns regarding the research aspects of CAT.
9. Professor Reid regarded the claimant as someone who had commercial acumen but doubted her ability to carry out the research functions required for CAT.
10. The CAT project was reviewed at the end of its funding period, in March 2004. In that review, Professor Reid concluded that its performance had been poor in relation to research. That did not bode well for the research assessment exercise to which the respondents were due to be subjected in 2008. Professor Reid met with the claimant's line manager and with the respondents' director of finance and they all concluded that they had to take steps to increase the quantity and quality of research carried out within the centre.
11. Professor Reid concluded that they needed to employ someone who had a proven track record of attracting research funds and create a new post for that employee, whose principal function would be to work at attracting research funds for CAT. Whilst that had been a part of the claimant's function, her job had entailed other duties as well. The new post was to have the job title of Research Fellow. The financial state of CAT was such that, ultimately, it was determined that the claimant's post would have to be discontinued; the tribunal were satisfied that there was a genuine redundancy in that respect.
12. When the respondents advised the claimant that they had reached the conclusion that they could not continue her post on any basis it was also made clear to her by her line manager and by the respondents' Head of Human Relations, Roisin Williams, that she was not thought to be a suitable candidate for the new Research Fellow post that they were hoping to create. She did not, accordingly, apply for the post when it was advertised.
13. Roisin Williams had examined the claimant's curriculum vitae and concluded that she was not suitable for the post of Research Fellow.
14. The respondents succeeded in finding a suitable candidate for the new post. A person from North America who had a track record of attracting funding was appointed.

The Tribunal's Decision

15. As we have already indicated, the tribunal were satisfied that the claimant was dismissed for reasons of redundancy but that the manner of her dismissal was unfair. Firstly, they considered that the respondents did not give the claimant adequate time to consider and respond to their conclusion that they could not carry on with the claimant's post on any, even a part–time, basis. That aspect of unfairness was, however, de minimis, since the tribunal also concluded that even if the claimant had been given a fair period of a few days to respond, the end result would have been the same.
16. Secondly, the tribunal considered that the respondents were unfair in that in indicating that it was not thought that she would be suitable for the new post they were, in effect, telling her not to bother applying for it. They recognised that they then required to consider what would have been the chances of her securing the post had she not been deterred in that way. Their reasoning in that regard was as follows:

"70. Against that background, we considered whether, if the respondents had not effectively precluded the claimant from applying for the post of head of research the probability that she would have been appointed to it.

71. We bore in mind that the principal problem for the respondents resided in the fact that they had failed to attract and execute research of the requisite quality and quantity. We bore in mind the fact that throughout the period since its inception the claimant had been director of CAT and that throughout that period she had been responsible for all research functions and outcomes. We bore in mind the fact that the respondents were actively seeking someone with a track record in securing research funds. We bore in mind that the respondents had not been satisfied with the first outcome of their search for a suitable candidate within the United Kingdom and that they had extended their search to America before securing the services of a candidate thought by them to be suitable. We bore in mind that the claimant did not apply for the post and that, when she saw the job description for the head of research, she commented that the respondents would not be able to fill the post. We bore in mind the fact that the said Roisin Williams had examined the claimant's curriculum vitae and expressed the opinion that the claimant would not be a suitable candidate for the post.

72. Notwithstanding these weighty considerations, we are satisfied that, had the claimant not been discouraged from applying for the post of head of research, and, had the respondents treated her application fairly and reasonably, there is at least a reasonable chance that she would have applied for it successfully.

73. As noted, this is a case in which the respondents could only fairly dismiss the claimant after careful consideration of the alternatives. Careful consideration of the alternatives would have involved a careful selection procedure involving the drawing up of a job description (which the respondents did) the drafting of person specification, careful examination of the qualifications and experience of all candidates and the measurement of all candidates against the person specification in an endeavour to ensure an objective choice of candidate. No person specification was lodged in this case, nor was there any attempt made by either party to compare the claimant's (or the successful candidate's) qualifications and experience with that of the ideal candidate implicit in any person specification. In considering the claimant's qualifications and experience the respondents would have been bound to bear in mind the fact that the claimant had played an important part in securing acceptance of a major bid. They would have been bound to bear in mind the fact that conditions were very difficult during the first two years of the existence of the CAT project for reasons that cannot reasonably be laid at the door of the claimant. It is certainly true that respondents have attracted a candidate 'with a track record' of securing funds, but the significance of this is not altogether clear. The claimant pointed out that most of the funds secured by the successful candidate were internal funds (that is secured from the institution for which the successful candidate worked), whereas, of course, it was the intention of the respondents to secure funds from external sources. They would have been bound to bear in mind that the securing of the funds to set up the CAT project was very much to the credit of the claimant and that SHEFC evidently took the view that the CAT project had been effectively managed.

74. We were initially minded to make no reduction whatever in order to reflect the likelihood that the claimant would not have been successful in being appointed, had the respondents treated her fairly, because of the lack of any detailed examination of the claimant's qualifications and experience against those of the ideal candidate, but ultimately decided that a reduction of 20 per cent was in order in order to reflect the fact that the respondents have attracted a candidate deemed suitable by them, and there must be some more than trivial chance that the claimant would not have been successful. We put the chances of the claimant be securing the post of head of research, had she been fairly treated at 80 per cent."

Submissions for Respondents on Appeal

17. The sole issue raised concerned the tribunal's assessment of the chance of the claimant securing the post of research fellow as having been 80%. That assessment was, it was asserted, perverse. In a typically well prepared and cogent submission, Mr Miller began by referring to the relevant law. In particular, he referred to Yeboah v Crofton [2002] IRLR 634, remarking that the present appeal was not in the category of cases which had been criticised at paragraph 94 of that report. He accepted that the test he had to meet was that an overwhelming case was made out that no reasonable tribunal could have decided as this one did. He added, under reference to the case of Piggot Brothers & Co Ltd v Jackson [1991] IRLR 309, that he was content also with the characterisation of the test as being that of whether or not the result reached was a permissible option.
18. Mr Miller turned to the factual history of the case. He drew our attention, in particular, to the various findings to the effect that Professor Reid had a genuine belief that there was cause for concern regarding the research functions of CAT and that she lacked confidence in the claimant's ability to attract research funds and carry out and supervise research of the requisite quality. He particularly referred to paragraph 41, in which the tribunal found:

"41. Although there was some discussion before us about the quantity and quality of research actually carried out within CAT, and whether CAT or the claimant should have been 'credited' with some of the research, the issue did not attract a great deal of attention. We are not in a position to say whether there is an objective criterion whereby it could be determined whether the claimant ought to have been credited with the pieces of research which she cited, but it does not matter, because it was quite clear that Professor Reid did not attach a great deal of importance to it, and it was not suggested that, even if full credit were to be given to all the research cited by the claimant, Professor Reid could not reasonably reach the conclusion that the quantity and quality of research fell below that reasonably to be desired."

19. That was, he submitted, an important stage in the judgment as it indicated that the tribunal had endorsed the genuineness of Professor Reid's belief and that it was a reasonable conclusion for her to draw.
20. Mr Miller also drew our attention to paragraph 63, where the tribunal stated:

"….we are quite satisfied that in practical terms the respondents prevented the claimant from applying for the said post. It is true , as Mr Miller for the respondents pointed out, that there was no formal bar against the claimant applying for the post but we are quite satisfied that , the claimant having been told by the head of department and the human relations manager [who were obviously going to be involved in the selection process] that she was not considered suitable for the post , the claimant rightly reasoned that she had no reasonable hope of being appointed and that to apply for the post would have been a humiliating experience."

21. They had thus, at that point, found that the claimant had no reasonable hope of being appointed to the post. That was evident from their indication that she had "rightly" reasoned that she had no hope of securing the appointment. That did not sit well with their later finding that she did have a reasonable chance of being appointed to it.
22. Mr Miller accepted that the tribunal had articulated the correct test, namely that of what would have happened if the claimant had not been precluded from applying for the post. It was, however, evident from their subsequent discussion, particularly what was contained in paragraph 73, that they had turned their minds not to what would have happened but what should, in their view, have happened. That was the wrong approach. Further, in that paragraph, the tribunal's comment that the significance of the fact that the respondents had appointed someone who had a track record of attracting research funding was not altogether clear, was also at odds with their earlier findings.
23. In all the circumstances, the decision was perverse. The tribunal had, by their 80% assessment found in effect that in four out of five interviews for the post, the claimant would have succeeded. That could not logically follow from their having acknowledged, without criticism, that Professor Reid had genuine concerns about the CAT research record and serious reservations about the claimant's abilities to address the research deficits and from what flowed from the tribunal's findings, namely that the new post was to be exclusively concerned with the one area of the claimant's role in which she had demonstrated little or no competence. Mr Miller indicated that his reaction at the time the judgment was given (which was ex tempore, within a short time of the close of submissions), his reaction to the 80% finding was "oh my goodness, that must be wrong". It seemed that the tribunal had got the percentage allocations the wrong way round.
24. Regarding disposal, Mr Miller submitted that this was a case in which this tribunal might feel able to reach a conclusion as to the percentage chance of the claimant securing the research fellow post on the basis of the facts found without a remit. In the event that we did not, he invited us to remit the case to a freshly constituted tribunal for the assessment to be made. He submitted that a reasonable assessment would be that there was a 20% chance of the claimant securing the post.

Submissions for Claimant on Appeal

25. For the claimant, Mr Miller submitted that the appeal should be refused. Under reference to the Piggott case, he submitted that what he referred to as the "unwritten judgment" was as important and account required to be taken of the possibility that there was other evidence about the claimant's abilities before the tribunal. He referred to two documents containing applications for research funding (pp 64 -8 of the bundle) that had been prepared by the claimant. On questioning, he confirmed that these were covered by the reference in paragraph 41 to research actually carried out (it would seem that they might also relate to a reference in paragraph 39 to the claimant having cited to Professor Reid bids for funding for which she was responsible). However, Mr Millar ultimately seemed to accept that his submission was based on a misreading of Piggott and that it was not appropriate to suggest that it was authority for any submission that this tribunal should assume that there was evidence lying behind the judgment which supported the tribunal's conclusions in the absence of relevant findings in fact.
26. Regarding paragraph 41, Mr Millar submitted that there were two possible interpretations of it. One was that the tribunal's view was that even if credit was given to the claimant for the research she had provided that it was still substandard in Professor Reid's opinion. The other was that at no point did the evidence suggest that Professor Reid's view was genuinely held. There was, he said, no express finding that even if the research carried out was credited to the claimant Professor Reid reached a reasonable belief that the research was substandard.
27. Mr Millar submitted that we should focus on the fact that research was only part of the claimant's role as director of CAT.
28. The tribunal had addressed the correct test, namely what would have happened had the claimant applied for the new post. The automatic conclusion was not that the claimant would not have been successful. The tribunal had decided that she would have had a fairly decent chance and their decision was a permissible option. Whilst there was a suggestion that Professor Reid thought that the claimant would not be suitable for the job, that had been the position at the outset when she had been appointed director of CAT yet she had got the job.
29. On being questioned as to the apparent conflict between paragraph 63 and the subsequent finding that the claimant had a reasonable chance of securing the post, Mr Millar accepted that the two were hard to reconcile but submitted that paragraph 63 was referring only to the claimant's perception.
30. In respect that the tribunal had referred to the claimant's presentation to the conference on 19 February 2004 at the invitation of SHEFC, which concerned management, Mr Millar indicated that he was not suggesting that that was relevant to the assessment of the chances of her securing the new research post.
31. Overall, the tribunal were masters of the facts and they were, it was submitted, entitled to find as they had done.
32. In the event that we were persuaded to uphold the appeal, Mr Millar agreed that it would be open to us, on the present findings in fact, to make a fresh assessment of the chances of the claimant securing the research post. If we were not minded to do so, then he agreed that the issue should be remitted and that could be to either the same or a fresh tribunal.

Relevant Law

33. The relevant law can be shortly stated, this being an appeal solely on perversity grounds. We would refer firstly to the succinct summary in Yeboah at paragraph 93:

"Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law would have reached."

34. Secondly, we should confirm that we are mindful of the need to be extremely cautious not to conclude that the decision of the tribunal is flawed because we would have reached a different conclusion and to recognise that it is only in the rare or exceptional case that a perversity ground will be made out. As was said in the case of Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 at paragraph 33:

"An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is 'irrational', 'offends reason', 'is certainly wrong' or ' is very clearly wrong' or 'must be wrong' or ' is plainly wrong' or ' is not a permissible option' or ' is fundamentally wrong' or ' is outrageous' or 'makes absolutely no sense' or 'flies in the face of properly informed logic.' This variety of phraseology is taken from a number of well known cases which describe the circumstances in which this Tribunal ( and higher courts) have characterized perversity. The result is that it is rare or exceptional for an appeal to succeed on grounds of perversity."

Discussion and Conclusions

35. Is this then one of those rare cases where the tribunal's decision falls to be set aside as being perverse? We are persuaded that it is.
36. In this case, in which there was little dispute on the facts, the relevant factual matrix is clear. When the claimant was director of CAT, one of things for which she was responsible for was research, a matter which involved attracting funding to enable it to continue. The quantity and quality of the respondents' research activities was something that mattered to Professor Reid, the respondents' director, not least because they were facing a Quality Research Assessment in 2008 on which the level of their continued public funding would depend. Whilst the claimant was in charge of CAT, its research activities were not up to standard. It is plain from paragraph 41 that the tribunal were satisfied not only that Professor Reid was genuine in her belief that the quality and quantity of CAT's research was below standard but that that was a belief which she was entitled , reasonably, to hold. We do not accept the submission for the claimant that that paragraph could be read in any other way. It is evident that it was never suggested to Professor Reid, who gave evidence, that her assessment was an unreasonable one and she could have been expected to be challenged on that if it was not accepted on behalf of the claimant that that was so. Further, she did not have confidence in the claimant's ability to attract research funds and carry out CAT's research activities to standard. CAT was subject to criticism on account of its research failings, the claimant's position was, as the tribunal record at paragraph 54 that she was:

"…such a central figure in the operation of CAT that any criticism of its performance is likely also to be an implicit criticism of the claimant's performance."

and, as was commented by the tribunal in the same paragraph:

"…there was a perception that the claimant was underperforming."

37. Against that background, Professor Reid decided that CAT needed to change so as to increase the quantity and quality of its research work. To that end it was determined that the claimant's post was redundant and what was needed was to create a new post of head of research/research fellow, devoted to research and with a principal function of attracting research funds. They were, accordingly, looking for someone with a proven track record of attracting research funding.
38. The claimant's CV had been examined by the respondents' head of Human Relations and she had concluded that the claimant would not be suitable for the new post. Further, on the findings of the tribunal, the claimant was correct when, as at the point that she was told she was being made redundant, she reasoned that she had no reasonable hope of being appointed to the new post. That does seem to be an important finding yet it appears to have been lost sight of by the tribunal later on in its judgment. It denotes that the claimant's predictions, knowing the difficulties that there had been with CAT, knowing what she had to offer to the job, knowing what the new job was to involve and knowing what those who would appoint the successful candidate were looking for did not realistically think that they would appoint her. Further, there is no question of that being an assessment that was made on the basis that she would not be fairly treated; the tribunal could be expected to have said so, if that was the case. Rather, at the paragraph 63 stage of their judgment they appear to be saying that the claimant did not think that she had any reasonable hope of securing the job and, furthermore, that she was correct in that assessment. That is, that at that point, the tribunal seem to express the view that there was no reasonable hope of the claimant being appointed to the post.
39. The respondents searched for, found and appointed a person who did have a proven track record of attracting research funding, the criteria specified by Professor Reid, as we have already indicated. That was a matter of obvious significance, contrary to what was suggested by the tribunal at paragraph 73. It showed that, as a matter of fact, the respondents had been able to find what they were looking for.
40. The tribunal correctly identified the question they had to ask themselves, namely what, if the respondents had not effectively precluded the claimant from applying for the post of research fellow, was the probability that she would have been appointed to it. The conclusion that they reached thereafter to the effect that there was an 80% chance of her securing the post is, however, incomprehensible in the light of the factual background found by them. All that background points to the chances of the claimant securing the post being slim indeed.
41. Having considered the terms of the judgment, it appears that the cause of the tribunal reaching what we are satisfied is an impermissible conclusion is that, despite having articulated the correct question, they went on, at paragraph 73, to consider an irrelevant question. In that paragraph they are clearly looking at the question of what, in their view, should have happened if the claimant had applied for the post. That is, however, beside the point. It is of no assistance in an assessment of what would have happened and may have been responsible for distracting the tribunal from that correct question. That impression is reinforced by the reference in the following paragraph to what would have happened "had the respondents treated her fairly…". The tribunal would appear to have injected into their hypothesis of fairness their view as to the reasoning process that the respondents' ought to have adopted in respect of the claimant's application. The "fairness" hypothesis ought, however, for the purposes of the correct question, to have gone no further than assuming that the respondents would not have committed the unfairness actually identified by the tribunal, namely that they would not have, in effect, told the claimant not to bother applying for the job.
42. Further, even when considering what should have happened, the tribunal rely on a factor which involves them having drawn a questionable inference and which is, in any event irrelevant to the question of the claimant's abilities in the research field. That is that, as they put it at the end of paragraph 73 "SHEFC evidently took the view that the CAT project had been effectively managed." The comment relates to the tribunal's findings regarding the conference in February 2004. At paragraph 31, the tribunal had found:

"On or about 19^th February 2004 , SHEFC invited CAT to present a paper entitled "Effective Project Management" to a group of 200 vice-chancellors and finance directors of British Universities and Institutions of Higher Learning. We infer that the manner in which the claimant managed the CAT project met with the approval of SHEFC."

43. The paper requested did not, accordingly, relate to research or attracting funding for research and we fail to see that it would have been relevant to the assessment of the claimant's suitability for the research post. More importantly, we are not satisfied that the inference drawn was one which the tribunal were entitled to draw from the mere fact of CAT having been asked to present the paper. It does not indicate any actual knowledge on the part of SHEFC regarding what was actually happening at CAT beyond the fact that they were funding it nor is it indicative of any assessment on their part as to the competencies of the claimant.
44. In all these circumstances, we are readily satisfied that the decision reached was perverse. To use Yeboah terminology, we are convinced that there is an overwhelming case that the decision was one which no reasonable tribunal on a proper appreciation of the evidence and the law could or would have reached and we will accordingly, pronounce an order upholding the appeal.
45. We turn to the question of whether or not we should remit the case. We do not consider that it is necessary to do so. The factual background is plain and was largely undisputed by the parties which puts us in a position where we can make the assessment that now requires to be made namely that of what were the chances of the claimant securing the research fellow post had she not been precluded by the respondents from applying for it.
46. As we have indicated, it seems to us that the findings all pointed to those chances being slim. The claimant did not have the track record that the respondents were looking for, the research standards at CAT whilst she was its director had been substandard, her CV did not, on Roisin Williams' assessment, suit her for the post, Professor Reid, a key figure in the organisation, did not think that the claimant had the requisite skills, the claimant herself did not think that she would have been successful in securing the post and someone else applied for the post who did in fact have what the respondents were looking for.
47. Whilst it would be wrong for us to rule out all chance of the claimant securing the post, in all the circumstances we do not consider that it would be appropriate to assess the relevant probability at a high figure. The tribunal's decision would not have been open to criticism if it had assessed that chance at 20% and that is the assessment that we propose to substitute.

Disposal

48. We will, accordingly, pronounce an order upholding the appeal and for the finding that there was an 80% chance of the claimant securing the new post of research fellow/head of research, substitute a finding that there was a 20% chance of that happening.