HIS HONOUR JUDGE DAVID RICHARDSON
1.
This is an appeal by Ms Debbie King (“the
Claimant”) against part of a judgment of the Employment Tribunal sitting in
London Central (Employment Judge Sigsworth presiding) dated 8 February 2010.
The Claimant had been dismissed by Royal Bank of Canada Europe Limited (“the
Respondent”). It was not disputed that the dismissal was unfair; the Tribunal
upheld this claim but awarded her compensation only, and restricted it to a
basic award and 2 months net pay. The Tribunal also dismissed a claim of sex
discrimination. The Claimant appeals against these aspects of the Tribunal’s
decision.
The procedural position
2.
It is necessary at the outset to say a
word about the way in which the appeal arrived before the Appeal Tribunal for
its full hearing.
3.
The Claimant’s original Notice of Appeal
was lodged on 23 March 2010 before the Tribunal gave written reasons for its
judgment. It contained six grounds of appeal. On 28 June 2010 an order was
made directing a preliminary hearing; that order recognised that the Claimant
might wish to amend her grounds of appeal in the light of the written reasons
which had by then been received and directed her to lodge and serve any
proposed amendments within 14 days of the seal date of the order. The Claimant
sought to add two additional grounds.
4.
The preliminary hearing took place on 20
October 2010. At this hearing the Claimant was represented under the
Employment Law Appeals Advisory Scheme (“ELAAS”) by counsel, Mr Hignett.
Further arguments were raised. The Appeal Tribunal rejected some grounds, but
considered that others were arguable and gave permission to amend the Notice of
Appeal for reasons which it set out in a judgment, the transcript of which is
within our papers. A proposed amended Notice of Appeal was subsequently
approved (except in respect of two grounds). In short there were seven
grounds, overlapping to some extent, on which the Claimant relied by the time
of the full hearing of the appeal.
5.
When the Appeal Tribunal grants
permission to amend a Notice of Appeal at a preliminary hearing where only the
appellant is represented, the respondent has a right to apply to revoke or vary
that order. The Appeal Tribunal’s standard form of order recognises that right
and draws it to the attention of the respondent.
6.
In this case the Respondent has applied
to vary or discharge the proposed amended grounds, arguing that permission to
amend ought not to have been granted in any respect, having regard to the
overriding objective applicable to the Employment Appeal Tribunal and the
guidance given in Khudados v Leggate [2005] IRLR 540. By order
dated 22 March 2011 it was ordered that the Respondent’s application to vary or
discharge the order be adjourned to the full hearing to be dealt with at the
outset.
7.
Whether it is convenient, at a full
hearing, to deal with an application to vary or discharge at the outset will
vary depending on the subject matter of the appeal. In this case both parties
were fully prepared to argue the merits of the appeal; and the merits of the
appeal are a relevant (though by no means conclusive) consideration when
considering whether to permit amendment of the Notice of Appeal. For these
reasons it seemed to us sensible – and was agreed by the parties – that we should
hear argument on the merits of the appeal and on the question of amendment
together, and to reach a decision on all aspects of the appeal after hearing
all the argument the parties wished to put forward on both the merits and on
amendment.
8.
This judgment will take the following
form. We will first set out the background to the Claimant’s dismissal and
describe the circumstances in which it took place. We will then turn to the
proceedings before the Tribunal and the reasons given by the Tribunal for its
decision. We will then address two issues which it is convenient to discuss
before turning to individual grounds of appeal: these are (1) the Respondent’s
then practice of dismissing employees without any form of consultation or
process and (2) the general principles which the Appeal Tribunal applies when
granting permission to amend.
9.
We will then turn to the
individual grounds of appeal. Two grounds of appeal (one relating to remedies,
one relating to an application for a witness order) depend to a greater or
lesser extent on findings as to the procedure adopted by the Tribunal below; we
will consider these first, and then turn to other grounds of appeal which
challenge the reasoning of the Tribunal. We will identify the extent (if any)
to which a ground was in the original Notice of Appeal and the extent to which
it depends on amendment. Where a ground depends to a greater or lesser extent
on amendment we will consider whether it is appropriate to grant permission to
amend.
The dismissal and its background
10.
The Respondent is the European arm of a
global bank providing a range of banking services to commercial and private
clients, including investment banking, corporate finance, insurance and wealth
management services.
11.
The Claimant was employed by the
Respondent as a team and transaction manager in the Respondent’s capital
markets global infrastructure finance department. Her employment commenced on
4 December 2006. Initially her line manager was Mr Patrick Holland. With
effect from December 2007 her line manager became Mr Stephen Fleming, the
business manager for debt capital markets and global infrastructure.
12.
It was common ground between the Claimant
and the Respondent that a significant part of the Claimant’s time was spent on
a specific project – the implementation of a global infrastructure finance
project with an external provider, Sales Force. Essentially this involved the
creation of a database for use in the department. The Claimant said that 50%
of her time was involved in this project; the Respondent’s estimate was 75%;
and the Tribunal found (partly by adding in a proportion of time which the
Claimant put down to general enquiries) that the amount was between two-thirds
and three-quarters. This project was due for completion in December 2007; it
was not complete by July 2008.
13.
Although the Tribunal did not record this
fact in its reasons, it is common ground that in July 2008 the Claimant was
questioning whether a performance appraisal upon her had been countersigned by
Mr Fleming and why no objectives for the current year had been set by him. On
22 July 2008 the Claimant requested a meeting with human resources. The
meeting took place on 24 July 2008. In the meantime Mr Fleming met with human
resources on 23 July 2008.
14.
It was on 30 July 2008 that the Claimant
was dismissed. The process was brutal - we shall have more to say about it
later in this judgment. There was a dispute as to what occurred at that
meeting; but certain features are common ground, and we will set them out now.
15.
Mr Fleming called the Claimant to a
meeting at short notice. She was not told the purpose in advance. She found
two members of the human resources department there – Ms Brusati and Ms Woods.
In the course of the meeting she was told her role was redundant. She was put
on garden leave. She was not given any letter of explanation. She was not
afforded any right of appeal. She was given a draft compromise agreement and
asked to go to solicitors, evidently in the expectation that a compromise agreement
would be negotiated. When she asked for a written explanation she was only
told that she was “redundant”. She did not sign the compromise agreement.
She brought the claim with which we are concerned.
The Tribunal’s reasons
16.
By her claim form the Claimant brought
claims of unfair dismissal and sex discrimination, alleging in particular that
the dismissal was an act of sex discrimination. (There were other claims, but
we are not concerned with those today.) In her claim form the Claimant sought
reinstatement.
17.
In its response form the Respondent
admitted that the dismissal was automatically unfair by virtue of section
98A(1) of the Employment Rights Act 1996 because it had not followed the
statutory dismissal and disciplinary procedure. It asserted, however, that the
dismissal was for a fair reason, namely redundancy, and that there were no
suitable vacancies within the Respondent’s organisation. It denied sex
discrimination.
18.
The hearing before the Tribunal took
place over 4 days on 25 and 26 January and 3 and 4 February 2010. The Claimant
represented herself. The Respondent was represented by counsel. Evidence was
given by the Claimant, by Mr Fleming, by Mr Hughes (head of human resources)
and by Mr Bell, who was at the relevant time Mr Fleming’s superior. Neither of
the human resources personnel present on 30 July (Ms Brusati and Ms Woods) gave
evidence.
19.
The Tribunal held that redundancy was
indeed the reason for the Claimant’s dismissal. It found that a decision was
taken to axe the global infrastructure finance project in July and that other
aspects of her work had dwindled. The key paragraphs of the Tribunal’s
findings of fact are the following.
“12.3 A decision was made in about July 2008 to axe the
project. There were sound strategic reasons for this, we find. Mr Fleming
raised questions about its effectiveness, given the vast volume of information
that needed to be collated and continually updated and the internal resource
commitment required to do this. Things changed in between 2007 and 2008 in
terms of the market place. The Respondent’s staff were not working on so many
deals and the volume of work was falling away. The work on the spreadsheets
was being done by the teams themselves. It was deemed not necessary any longer
for a large Excel spreadsheet to be sent to the US, and the US deals could be put on one spreadsheet. It was noted that in 2009, after the Claimant left, they
did not in the US close a single transaction. The solution to the problem,
according to Mr Fleming, was not a database but to send less information and
not to distribute it to all and sundry. Mr Bell said he was getting the
information on paper so that the database was just duplication. The US came under Mr Bell’s control and so was not operating separately and therefore that
erased the communication issue that was one of the reasons why the project had
been set up in the first place. There was a costs issue, and a need to cut
costs because of the global downturn. The £50,000 licence for the use of the
software and so on was due for renewal towards the end of 2008, we are not
entirely sure of the precise date. There was also the cost of training by
Sales Force of the Respondent’s staff. This was going to cost £13,000 a year
with superior staff training an additional £2,000-£4,000 per person for a 3 day
course. Further, the project was behind schedule as we have already
indicated. So, a business decision was taken to axe it. Mr Fleming looked
into the position, and went to see Mr Bell who authorised the decision. It was
clear to Mr Bell that the level of work and costs involved in the project were
far greater than any benefit that the Respondent would gain from it.
12.4 We find as a fact that the majority of the work that the
Claimant undertook was on the project. We also find that other aspects of her
work dwindled. The weekly telephone calls were abandoned in favour of specific
ad hoc calls. The audit work was non existent in the foreseeable future. The
gathering and circulation of press articles was no longer required by the
Respondent. There was insufficient work for a team and transaction manager and
therefore a redundancy situation arose. The Claimant was in a pool of one, and
therefore no selection criteria were necessary or appropriate. We are quite
satisfied that the Sales Force project was cancelled and we have seen emails
which confirm that. Mr Duncan Spanner of Sales Force wrote to Mr Fleming on 16
September 2008 querying the situation. Mr Fleming wrote back three days later
confirming a telephone conversation they had just had, and informing Mr Spanner
that the Respondent would not be renewing the Sales Force licences that October
and would consequently cease to use the product.”
20.
The Tribunal, after noting and condemning
the Respondent’s employment practice to which we have referred, found that the
Claimant was dismissed with no warning and no consultation. It went on to
find:
“12.6 As with all redundant staff, the Claimant was put on
garden leave immediately. The Claimant’s redundancy was the first of many to
follow during the latter months of 2008 and into 2009. In fact, twenty people
from the infrastructure platform have been made redundant in that time and many
more company wide. Twenty four others left the infrastructure platform for
other reasons, mainly resigning to leave the company altogether so that could
be regarded as natural wastage. A few, but not many, were redeployed to other
areas of the business.”
21.
On the question of alternative vacancies,
the Tribunal found the following facts.
“12.7 The Claimant’s garden leave ended on 26 August 2008. Even
before that her departure was announced on the internal intranet or other
communications system on 8 August 2008. Also a list of vacancies in her
particular case was not produced until 11 August, updating the previous list
produced by HR in May and July 2008, which had been produced for other people
being made redundant in other parts of the business. Mr Fleming told us that
he did not see this list of vacancies at the time. Nor was it shown to the
Claimant. He went through the list of vacancies in the Tribunal before us.
The capital markets roles in the top half of the list were skilled roles and
individuals required product knowledge and a strong client base. The lower
paid jobs in the second part of the list still required accountancy
qualifications and/or experience and knowledge of equities, bonds and
investment strategies and so on. Mr Hughes also had reviewed that list and the
July list subsequent to the Claimant’s dismissal. He was comfortable that
there were no vacancies in the vacancy lists for which the Claimant was
suitable. The Claimant has not adduced any evidence to the contrary. Nor did
she cross examine the Respondent’s witnesses about this to any meaningful
extent. The Claimant has made assertions but has not produced evidence as to
why she says that she was suitable for these jobs, such as evidence of her
skills and qualifications. We have to accept, therefore, the Respondent’s
evidence that there was no suitable alternative employment for the Claimant.”
22.
The Tribunal dealt within paragraphs
12.11 and 12.12 with the sex discrimination claim. The Claimant relied on a
number of matters which occurred while she was at work as evidence of discrimination.
The Tribunal considered those matters in turn and found no evidence in support
of her case in any of those matters. It said that it heard “no evidence from
the Claimant in support of her contention that her dismissal was on the grounds
of her sex”. It found that 15 out of 20 who were made redundant in the
infrastructure platform were men.
23.
As to sex discrimination, the Tribunal’s
conclusion was as follows.
“13.1 Sex discrimination. The Claimant has not established to
our satisfaction a prima facie or stage 1 case for a discriminatory dismissal.
She similarly has not adduced any or sufficient evidence of a connection
between her dismissal and her gender. She does not get past stage 1. If we
are wrong about this and she has established a prima facie case (which we find
she has not) and the burden switches to the Respondent, then we are quite
satisfied that the Respondent has provided a full explanation that the
dismissal was on grounds of redundancy.”
24.
On the question of unfair dismissal, the
Tribunal continued:
“13.2 The Respondent has established the reason for dismissal
and that it was for redundancy. It is conceded by them that the dismissal was
automatically unfair for breach of section 98A(1) and the statutory procedure.
The Claimant’s case is that not only was the dismissal procedurally unfair but
it was also substantively unfair. We conclude that there was a clear
redundancy situation in her case. She was the only person in her position and
therefore no pool or selection criteria was required. We are quite satisfied
on the evidence of the Respondent, and the commensurate lack of evidence on the
part of the Claimant, that there was no suitable alternative job for her.
Therefore, the decision to make her redundant was one that a reasonable
employer could reach within the band of reasonable responses and there is no
substantive unfairness at the end of the day.
13.3 What impact does that procedural unfairness have on
remedy? We conclude that in order to carry out and complete a fair process it
would have taken the Respondent two months from 30 July 2009 [sic] to a date by
which the Claimant could have been given notice of termination of employment.
This would have enabled warning, proper consultation, discussion of vacancies
with the Claimant, the Claimant’s application for vacancies if she chose to
make any, the rejection of those applications for unsuitability, a final
meeting, an appeal and so on. In other words, we conclude that the Claimant is
entitled to two months net loss of earnings which, according to the pay slips
that we have seen, was £2,931.35 per month. That sum is subject to an uplift
of 50% for a complete failure to follow the statutory DDP, and there is
absolutely no mitigation that the Respondent can advance on this. The Claimant
is entitled to a basic award of 4 weeks pay, under section 120 of the
Employment Rights Act, as amended, because the dismissal was automatically
unfair. That is a sum of £1,320.”
The Respondent’s dismissal
practice
25.
The Tribunal heard evidence from Mr
Hughes, the Respondent’s head of human resources, that the Respondent then
adopted what the Tribunal termed “a process apparently common in the banking
industry ... a very limited procedure” when dismissing employees. He said that
the procedure adopted normally involved inviting the employee to a meeting,
explaining the reasons for the termination of their employment, putting them on
gardening leave with immediate effect and not giving them the right of appeal.
He said employees were offered a compensation package in return for signing a
compromise agreement. He said the Respondent had since changed its practice.
26.
Mr Hughes gave as the reason for adopting
this practice the potential risk of damage to the business from a disgruntled
employee who remained in the office and continued to carry out day to day work.
27.
The Tribunal said that it condemned the
practice. We agree; and we wish to set out some reasons why the practice was
unacceptable and remains unacceptable.
28.
Firstly, an employee has a right,
afforded by Part X of the Employment Rights Act 1996, not to be unfairly
dismissed. Unfair dismissal is in the nature of a statutory tort. The
practice adopted by the Respondent at the time of the Claimant’s dismissal was
not a fair practice. It denied any form of consultation, hearing or appeal to
an employee. It is wholly unacceptable for any employer to adopt such a
practice as a matter of policy. Any organisation with a professional
management – including a board of directors and a human resources department –
ought to ensure that the letter and spirit of the law is obeyed, not flouted.
It is no more acceptable to break the law in this area than it would be in any
other area of the Respondent’s business.
29.
The risk to the business of a disgruntled
employee does not require an employer to set aside basic principles of
fairness. Many employees pose no such risk. Where such a risk is assessed to
exist, an employer can put measures in place which do not require dispensing
with consultation, a hearing and an appeal.
30.
Secondly, fair dismissal procedures
entail a degree of transparency in the taking of decisions. The Code of
Practice on Employment issued in 2011 under the provisions of the Equality
Act 2006 commends such procedures (see paragraph 17.91). A manager who
is not required to be transparent in the taking of a decision (because he or
she will not have to justify it at a hearing or an appeal) may be the more
likely to take a rushed and poor decision – indeed a decision based on
prejudices or misunderstandings of one kind or another. All the more so if the
manager expects the matter to be dealt with by a compromise agreement, so that
he or she will not have to justify the decision later to an employment
tribunal. An employment tribunal can and should keep these considerations in
mind if it is called on to review such a decision.
Leave to amend the Notice of Appeal
31.
In Khudados v Leggate
[2005] IRLR 540 the Appeal Tribunal considered the principles which were
applicable when deciding whether to grant permission to amend the Notice of
Appeal. The following points are established by that judgment: see in
particular paragraphs 79 to 87.
32.
Firstly, the starting point in
considering applications to amend the notice of appeal is the overriding objective
which appears both in the EAT Practice Direction and the Employment Appeal
Tribunal Rules 1993 (as amended with effect from 1 October 2004). Rule 2A
provides:
“(1) The overriding objective of these Rules is to enable the
Appeal Tribunal to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable –
(a) ensuring that the parties are on
an equal footing;
(b) dealing with the case in ways
which are proportionate to the importance and complexity of the issues;
(c) ensuring that it is dealt with
expeditiously and fairly; and
(d) saving expense.
(3) The parties shall assist the Appeal Tribunal to further the
overriding objective.”
33.
Secondly, the Appeal Tribunal’s Practice
Direction must be kept in mind. The relevant provision of the current Practice
Direction is paragraph 2.7, which provides:
“A party cannot reserve a right to amend, alter or add, to a
Notice of Appeal or a respondent’s Answer. Any application for permission to
amend must be made as soon as practicable and must be accompanied by a draft of
the amended Notice of Appeal or amended Answer which makes clear the precise
amendments for which permission is sought.”
34.
Thirdly, the strict principles applicable
to extensions of time for presenting notices of appeal (most recently
summarised and applied by the Court of Appeal in Jurkowska v Hlmad [2008] IRLR 430) are not applicable, although there remains an interest in achieving
closure and finality of litigation to be kept in mind.
35.
Fourthly, the merits of the proposed
amendment are relevant.
36.
Fifthly, the Appeal Tribunal said the
following:
“86. The EAT has a broad and generous discretion in applying its
Rules and Practices so as to achieve the overriding objective of dealing with
cases justly. We consider that, without wishing to set out an exhaustive list
of considerations, the following are among the matters to be taken into account
in determining whether or not an amendment should be allowed.
(a) Whether the applicant is in
breach of the Rules or Practice Directions; in our opinion compliance with the
requirement in para. 2(6) of the Practice Direction that an application for
permission to amend a notice of appeal be made as soon as the need for
amendment is known, is of considerable importance. The requirement is not
simply aspirational or an expression of hope. It does not set a target but is
a requirement that must be met in order to advance the efficient and speedy
dispatch and conduct of appeals.
(b) Any extension of time is an
indulgence and the EAT is entitled to a full honest and acceptable explanation
for any delay or failure to comply with the Rules or Practice Direction, as
Mummery J observed in Abdelghafar.
(c) The extent to which, if any, the
proposed amendment if allowed would cause any delay. Clearly proposed
amendments that raise a crisp point of law closely related to existing grounds
of appeal, or offering limited particulars that flesh out existing grounds, are
much more likely to be allowed than wholly new grounds of perversity raising
issues of complex fact and requiring consideration of a volume of documents,
including witness statements and notes of evidence. Such amendments if allowed
are bound to cause delay and extra expense. The latter class of amendments
should be contrasted with the first. In many cases in the first category the
party against whom permission to amend is sought will be in no worse position
than if the amended grounds had been included in the original notice of appeal.
(d) Whether allowing the amendment
will cause prejudice to the opposite party, and whether refusing the amendment
will cause prejudice to the applicant by depriving him of fairly arguable
grounds of appeal. We recognise that a party cannot be prejudiced in point of
law simply because an argument is raised by way of amendment that saves what
would otherwise be an unsustainable appeal. We also would suggest that the
prejudice caused by refusing permission to amend to an applicant who seeks
permission to amend by adding fairly arguable grounds, but who has failed in a
significant way to comply with the Rules or Practice Direction, or who has
delayed excessively, is likely to carry less weight than in the case of an
applicant who has not delayed and has acted in accordance with the Rules and
Practice Direction.
(e) In some cases it may be necessary
to consider the merits of the proposed amendments, assuming they can be
demonstrated to cross the appropriate thresholds we have mentioned earlier;
that is to say as a general rule they must raise a point of law which gives the
appeal a reasonable prospect of success at a full hearing.
(f) Regard must be had to the public
interest in ensuring that business in the EAT is conducted expeditiously and
that its resources are used efficiently.”
37.
The facts of Khudados were
very different to those in the present case. In Khudados the
appellant’s notice of appeal was drafted by leading and junior counsel. Some
months later no less the appellant sought to amend the notice of appeal to add
no less than 26 pages of further grounds devoted to arguments of perversity
ranging widely over the Tribunal’s decision. The application resulted in an
adjournment of a preliminary hearing. The Appeal Tribunal was told that the
need to amend was appreciated at the date of presentation of the original
notice of appeal; but neither the opposite party nor the Appeal Tribunal was
told that any application was to be made. The application to amend was
refused.
38.
The present case is of a different
character. The Claimant prepared her own Notice of Appeal; she did not have
legal advisers; she told us, and we have no reason to doubt, that she could not
afford legal advice. There is available to litigants in person at preliminary
hearings, and certain other interlocutory hearings, assistance from the
Employment Law Appeals Advisory Scheme (“ELAAS”). The Claimant took advantage
of this scheme. As the judgment of His Honour Judge Hand QC shows, those
points presently argued which were not in the original Notice of Appeal were
advanced on her behalf by Mr Hignett, who appeared for her under the auspices
of ELAAS. We accept that, as the Claimant told us, the application for
permission to amend was made with the advice of Mr Hignett. The Appeal
Tribunal was persuaded that the grounds were arguable.
39.
In his submissions on behalf of the
Respondent Mr Sheridan submitted that the Claimant ought to have obtained legal
advice prior to service of the Notice of Appeal or at least prior to the
preliminary hearing. He did not argue that she could afford legal advice;
rather he submitted that she ought to have found some unpaid source of legal
expertise such as the Bar Pro Bono Unit. Therefore, he submitted, she was
guilty of delay; and did not comply with the Practice Direction.
40.
Further Mr Sheridan submitted that the
prejudice to the Respondent by reason of the amendment of the claim was
considerable. The case had already been delayed (he submitted) prior to the
Tribunal hearing. Further delay of any kind was undesirable and unfair to the
Respondent.
41.
We will keep these arguments in mind as
we consider individual grounds of appeal; but speaking generally they do not to
our mind carry the same weight that they carried in Khudados.
42.
It is of course always desirable that a
litigant in person should obtain legal advice from any available source; but
pro bono advice relating to grounds of appeal in employment cases (particularly
cases of some length and complexity) is not easy to find. Legal aid may be
granted by the Community Legal Service, but it is in our experience very much
the exception rather than the rule. Hence the great value of ELAAS to
litigants in person who appeal to the Appeal Tribunal. In our experience it is
not at all unusual for representatives appearing under the auspices of ELAAS to
identify arguable points in an appeal; and it is not unusual for permission to
amend to be given which focus argument on grounds which they have advanced.
The interests of justice are served by the availability of pro bono advice and
representation; and it is generally in the interests of justice that an
appellant who has brought an appeal in time should be able, with legal
assistance, to focus the appeal on relevant and arguable grounds. Such an
approach accords with the overriding objective.
43.
In the ordinary run of such cases, we
think the prejudice to a respondent who is required to meet arguable grounds of
appeal identified in this way is outweighed by the prejudice which would be
sustained by an appellant refused permission to argue such grounds. In such a
case the respondent has always been notified that an appeal is under
consideration; it will have been listed for a preliminary hearing (or a hearing
under rule 3(10) of the Employment Appeal Tribunal Rules 1993) with the
respondent’s knowledge; and the respondent’s proper interest in the finality of
litigation is not engaged in the same way as it is engaged by a late notice of
appeal.
44.
Each case – indeed each individual ground
of appeal – however must be considered on its own merits, applying the
principles laid down in Khudados. We keep in mind that it is for
the appellant to justify the grant of permission to amend; this principle does
not alter merely because the respondent (who had no opportunity at any earlier
stage to object to the grant of leave) applies to set it aside.
Re-engagement
45.
We will first consider a ground of appeal
relating to reinstatement and re-engagement. This is a ground for which
permission to amend was granted; we must therefore consider both the substance
of the ground and whether permission to amend should be granted.
46.
The Claimant’s case is straightforward.
She says that she asked for reinstatement in her claim form; she confirmed that
she was seeking re-engagement in her witness statement; she prepared for the
hearing on the basis that she wished to be re-employed by the Respondent;
although she won her case of unfair dismissal the Tribunal did not comply with
section 112 of the Employment Rights Act 1996 by explaining the orders
and asking her whether she wished to be reinstated or re-engaged; and that it
did not deal with the issue in its reasons. She points out that at her last
appraisal (prior to Mr Fleming becoming her manager) she was ranked 4/5 for
performance and 5/5 for teamwork. She says her request for re-employment was
to be taken seriously.
47.
Section 112(1) and (2) of the Employment
Rights Act 1996 provide as follows:
“(1) This section applies where, on a complaint under section
111, an employment tribunal finds that the grounds of the complaint are
well-founded.
(2) The tribunal shall –
(a) explain to the complainant what
orders may be made under section 113 and in what circumstances they may be
made, and
(b) ask him whether he wishes the
tribunal to make such an order.”
48.
The orders under section 113 are an order
for reinstatement under section 114 or an order for re-engagement under section
115. It is not necessary to set these provisions out in full in this judgment;
but we note that in each case the Employment Tribunal is required to consider
whether it is practicable for the employer to comply (see section 116(1)(b) and
(2)(b)).
49.
It is conceded by the Respondent that the
Tribunal did not give the explanation required by section 112. The Employment
Judge, when asked for his comments on this point, was unable to say whether he
had given the explanation. He said, however, that he noted the Claimant as
saying at the very start of her evidence that she was seeking re-engagement or
reinstatement with the Respondent.
50.
The Employment Judge also said the
following:
“The question of re-instatement did not arise, as the Claimant’s
post was redundant, as we concluded. The question of re-engagement likewise
did not arise, as there was no suitable alternative post for the Claimant, as
we found on the evidence.”
51.
On behalf of the Respondent Mr Sheridan
made the following submissions.
(a) Failure to
comply with the requirements of section 112(2) does not make the Tribunal’s
decision a nullity, but rather renders the decision voidable depending on
whether the failure led to the possibility of injustice and unfairness: Cowley
v Manson Timber Ltd [1995] ICR 367. In this case it was plain to the
Tribunal from the Claimant’s claim form, witness statement and stance at the
hearing that she was seeking reinstatement and re-engagement; the Tribunal was
well aware of this.
(b) No
employment tribunal properly directing itself in law would have ordered
re-engagement, given the deterioration in the relationship between the Claimant
and the Respondent. He relies on the Claimant’s continuing belief that she was
subject to unlawful discrimination and to her belief that the Respondents were
trying to ruin her financially and had arranged for private investigators to
follow her and may have sought to influence a judge. He refers to Nothman
v London Borough of Barnet (No 2) where Ormrod LJ said that an employee
who believes he has been a victim of conspiracy is not likely to be a
satisfactory employee if reinstated or re-engaged.
(c) It would not be right to grant permission to
amend the Notice of Appeal, which would permit the question of reinstatement or
re-engagement to be revisited yet again, long after the matter ought to have
been closed.
52.
On this part of the case, our conclusions
are as follows.
53.
Given the importance which the Claimant
attached to the question of re-employment, we think that the Tribunal’s failure
to deal with this issue is a striking omission. We are satisfied that the
Tribunal did not comply with the requirements of section 112(2). Moreover there
is no mention of reinstatement or re-engagement in the Tribunal’s summary of
the law which it was applying; the Tribunal passed straight from the
substantive law of unfair dismissal to the issue of compensation; and in its
reasons it did not apply the law relating to reinstatement or re-engagement at
all.
54.
The Employment Judge said that the
Tribunal found that there was no alternative employment. But the Tribunal
dealt with this issue only as regards the time of dismissal not as regards the
time of the hearing, which would be the relevant time for considering the
question of re-engagement. The Respondent is a substantial organisation. While
there were redundancies in 2008 – and quite possibly retrenchment thereafter,
given the economic climate – it does not follow that there were no suitable
vacancies at the time of the hearing. Some members of the team within which
the Claimant was employed were (the Tribunal found) redeployed. Most large
organisations undertake some recruitment even in difficult times; and it might
be thought that an employee who has been unfairly dismissed should be
considered for re-engagement if there was a job opportunity.
55.
Although at the beginning of the hearing
the Tribunal was reminded by the Claimant that she sought re-engagement, we can
only conclude from its reasons (and from the failure to comply with section
112) that the Tribunal overlooked the matter by the end of the hearing.
Compliance with section 112 is a valuable discipline for the purpose of
ensuring that important issues relating to reinstatement and re-engagement are
not overlooked. In this case the Tribunal’s failure to comply with section
112 and its failure to deal with the issue go hand in hand. This is not a case
like Cowley where it can be said that failure to comply with section
112 has caused the Claimant no prejudice.
56.
We reject Mr Sheridan’s argument that no
reasonable tribunal, directing itself properly in accordance with the law,
would have found that it was practicable to order re-engagement. There are no
findings by the Tribunal on this question; it is an issue which (if it was
raised) the Tribunal ought to have considered and about which it should have
made careful findings. In this case it is hardly surprising that the Claimant
was aggrieved about the circumstances of her dismissal, and suspicious about
the motives for it: the Respondent’s failure to adopt any fair procedure
(especially when the decision to dismiss was taken shortly after she complained
that her performance appraisal had not been completed) was liable to give rise
to a sense of injustice and suspicion. It does not follow that it is not
practicable to re-engage her. Nor do views expressed by an inexperienced
litigant in person in the heat of litigation necessarily lead to this
conclusion.
57.
In our judgment the Tribunal erred in law
in failing to address the question of re-engagement. The Claimant, not being a
lawyer, did not identify this error in her original Notice of Appeal. It was
identified by the ELAAS representative. In our judgment, applying the Khudados
guidelines, it was and is right to grant permission to amend. It is true
that on remission the Tribunal will now have to consider the issue of
re-engagement at a different date; but any prejudice to the Respondent it is of
less weight than the prejudice the Claimant would suffer if we were not to
accede to her application and correct what we regard as a plain error of law.
Witness order
58.
It is next convenient to consider a
ground of appeal relating to an application for a witness order. This ground
was in the original Notice of Appeal. The Claimant contends that the Tribunal
erred by failing to grant a witness order in respect of Isabella Brusati, a
human resources manager who attended the meeting on 30 July and was responsible
for dismissing her. She says that if Ms Brusati had attended she would have
given evidence contrary to that of Mr Fleming relating to the meeting on 30
July and would have supported her case that the procedure for dismissal adopted
by the Respondent was wholly unfair.
59.
Statements concerning this issue were
ordered by the Appeal Tribunal and provision made for cross examination if
necessary at the hearing of the appeal. In fact, however, the facts concerning
the application for a witness order were not to any material extent in dispute
before us.
60.
The Claimant made a written application
for a witness order in respect of Ms Brusati on 19 March 2009, handing it to
the Employment Judge’s clerk. The Employment Judge’s order did not deal with
that application. We do not find that to be in itself surprising, for witness
statements had not been exchanged by that stage, and the application would have
been regarded as premature.
61.
The Claimant mentioned the application
for a witness order at the start of the full hearing in January 2010. The
Employment Judge noted “Witness order for C’s witness?”. However the Claimant
did not make an application there and then for an order. As she told us, she
sought to contact the witness directly. She did not raise the question of a
witness order again.
62.
In those circumstances we do not think
that the Employment Tribunal erred in law in any way. In March 2009 the
application was premature. Although the Claimant mentioned the application on
the first day of the full hearing she did not renew the application and the
Tribunal did not err in law in failing to deal with it.
The meeting on 30 July
63.
We now turn to consider a ground of
appeal relating to the meeting on 30 July 2008. The thrust of this point (as
explained by His Honour Judge Hand QC both in his judgment at the preliminary
hearing and in a subsequent note) is that the Tribunal failed to deal
adequately with the meeting of the 30 July, setting out the competing factual
contentions as to what happened and indicating how they had been resolved by
the Tribunal.
64.
This ground was not within the original Notice
of Appeal. It was one of the additional points identified at the preliminary
hearing (see paragraphs 33-36 of the judgment of His Honour Judge Hand QC). It
became ground 9 in the amended Notice of Appeal.
65.
The Claimant’s account of what occurred
at that meeting may be taken from her witness statement.
“When we arrived at the meeting room for the midday catch-up, to
my surprise both Ms Brusati and Ms Wood (Human Resources) were in the room,
seated.
I asked as to the nature of the meeting. No one replied.
My manager Steven then made an allegation. He said that Senior
Management (the Operating Committee) (including in the UK Messrs Bell, Tucker, Clement and Fleming himself) had alleged concerns about my work. At no time
during my employment have I had any reason to believe that there were any
concerns about my performance. When I asked my manager to substantiate his
allegation he refused.
In face of an unfounded allegation, I asked Isabella if we could
go to the conclusion of the meeting and work backwards as I was still unclear
as to the nature of the meeting. She presented me with a compromise agreement
from her notebook. Out of the blue and on the spot I was told I was now redundant.
I asked for a proper letter explaining all this. I was told I would not be
getting a letter and the compromise agreement would be all I would be
receiving. Furthermore, I was told that I was now on garden leave with
immediate effect.”
66.
The only witness for the Respondent who
was present at that meeting was Mr Fleming. His account of his participation
in the meeting was as follows.
“Before the meeting with Debbie, I prepared a crib sheet of what
I wanted to say (a copy of which I did not retain). When the meeting started,
I tried to explain the background to the redundancy to Debbie, but she cut
across me and asked me to get to the point. Isabella then stepped in and gave
Debbie the Compromise Agreement, explaining that she was being made redundant.”
67.
The Claimant’s submissions were as
follows. She did not accept at the Tribunal hearing that redundancy was the
true reason for dismissal. She pointed out that the dismissal followed shortly
after she raised, with the human resources department, her concerns that her
appraisal had not been completed and her objectives had not been set. She drew
two points from her account of the meeting on 30 July. Firstly, Mr Fleming did
not mention the cancellation of the project: it would have been the obvious thing
to mention if she was in reality redundant by reason of its cancellation.
Secondly, he began by saying that senior members of management had concerns
about her work. Why begin in this way if the true reason for dismissal was redundancy?
It was, she submitted, important for the Tribunal to reach conclusions of
primary fact about what happened at the meeting. Until it had drawn those
conclusions of fact it could not sensibly reach a conclusion as to why she had
been dismissed and whether there was any discriminatory element to her
dismissal. She took us to key documents concerning this point – notes of the
meeting on 30 July and notes of earlier meetings on 23 July and 24 July which
set the context for it.
68.
On behalf of the Respondent Mr Sheridan submitted
that, whereas he cross-examined the Claimant about her account of the meeting,
the Claimant did not cross-examine Mr Fleming about this point and did not
suggest in her closing submissions that concerns about her performance were the
real reason for dismissal. Therefore, he submitted, the case which the
Claimant now seeks to advance was no part of her case before the Tribunal; and
the Tribunal did not err in law in failing to deal with this aspect of the
case. The Claimant ought not to be permitted to advance before the Appeal
Tribunal a case which was not advanced below, not least because it would
require fresh findings of fact to be made.
69.
The Claimant was inclined to accept that
she had not put her account of what happened on 30 July to Mr Fleming in cross
examination. She said that she was a litigant in person, doing her best to ask
the correct questions; and that she had forgotten notes which she made of the
questions which she intended to put to Mr Fleming. She said, however, that she
had adhered to her case when she was cross examined; and that she had never
withdrawn or resiled from her account of the meeting of 30 July.
70.
On this part of the case we broadly
prefer the submissions of the Claimant. Our reasons are as follows.
71.
In our judgment it is plain that the
Claimant put in issue whether redundancy was the real reason for her dismissal;
and she specifically raised the question whether her dismissal was because of
unstated management concerns. In her claim form, completed at a time when the
Respondent had given her no explanation of her redundancy at all, she stated
that her dismissal was not attributable wholly or in part to any redundancy
situation. She set out her version of what happened on 30 July. In her
witness statement she repeated both these matters; and she specifically stated:
“To further compound the matter, at my dismissal meeting, Steven
advised me that Senior Management (Infrastructure Operating Committee) had
raised concerns about my work. I must make the assumption that I was
discriminated against by Steven and his co-committee members ....”
72.
Although there was, as we have said, a
proper account of the meeting in the claim form, neither the response form nor
the witness statement of Mr Fleming specifically denied that he had told the
Claimant that senior management had alleged concerns about her work. This is
perhaps not surprising, for Ms Wood’s note of the meeting on 30 July began
“Role reduction →resources for salesforce.com
platform.
Concerns from various people
Concern was either end in IT role supporting project”
73.
In these circumstances it seems plain to
us that the Tribunal ought to have dealt expressly with the Claimant’s case on
this issue. She had set it out clearly in her claim form and her witness
statement. She adhered to her account in her evidence. Her account derived
some support from Ms Wood’s contemporaneous note of meeting. There was an
important dispute about the matter – all the more important because of the
Respondent’s wholesale failure to follow any reasonable procedure, as a result
of which the Claimant was told virtually nothing at the time about the reason
for dismissal. What Mr Fleming said at the meeting on 30 July was the only
contemporaneous information which the Claimant was given about the reason for
her dismissal. Whether her account was true was relevant as to whether the
reason for her dismissal was truly redundancy and whether the timing of her
dismissal or her treatment on dismissal was influenced by considerations of a
more personal or even discriminatory nature. A Tribunal is not required to
deal with every dispute of fact which may arise in the course of a hearing; but
a Tribunal is required to address and consider disputes of fact which are of
real importance to its conclusions. What Mr Fleming said on 30 July was, in
our judgment, of real importance to its conclusions.
74.
The Tribunal’s task was certainly made
more difficult because the Claimant did not put her case to Mr Fleming by
questioning him on the matter. But we do not think that a dispute necessarily
ceases to be an issue in the case because a party – particularly a litigant in
person – omits to cross examine about it.
75.
It seems to us that, once granted that an
issue of importance has been fairly and squarely raised by a litigant (as in
this case), failure to cross examine about that issue will usually be relevant
to a tribunal in two ways.
76.
Firstly, it may be implicit in the failure
to cross examine that the issue is no longer pursued. Whether this conclusion
can be drawn will depend on all the circumstances. The conclusion may be
easier to draw if a litigant is represented than if a litigant is in person,
unaccustomed to the rules of cross examination or to the orderly preparation of
cross examination. In this case it would have been quite impossible for the
Tribunal to draw that conclusion. The Claimant’s case about the meeting on 30
July was raised squarely and plainly by the claim form and witness statement;
and she adhered to it when she was cross examined.
77.
Secondly, it may be unfair to the
opposite party to reach an adverse conclusion on an issue where it has not been
raised in cross examination. If so, the Tribunal ought not to reach a
conclusion adverse to the opposite party without raising the matter, hearing
submissions and if necessary recalling the relevant witness. In this case the
Respondent was plainly alive to the issue and had cross examined the Claimant
about it. We see that the failure of the Claimant to cross-examine Mr Fleming
may have placed the Tribunal in difficulty; but it is the kind of difficulty
which tribunals often have to deal with. If the Tribunal was minded to decide
the facts against the Claimant, it would have been free to do so. If it was
minded to decide them in favour of the Claimant, it may well be that it would
have been necessary to raise the matter with the Respondent and afford the
Respondent an opportunity of dealing with it. In fact, however, the Tribunal
made no findings. Contrary to Mr Sheridan’s submissions, we do not think that
the Claimant’s failure to ask questions about the matter justified the Tribunal
in failing to make findings concerning it.
78.
Further we consider, applying Khudados
principles, that the grant of permission to amend the Notice of Appeal was
justified. We have dealt in general terms already with the circumstances in
which permission to amend was sought and with the question of prejudice. The
considerations which we have identified apply, in our judgment, to the
application for permission to amend concerning this ground. The injustice to
the Claimant in refusing permission to argue the point outweighs any injustice
to the Respondent in permitting the point to be argued. It is true that it
will require re-consideration of an important factual issue long after the
events in question; but the taking of the point by way of amendment to the
Notice of Appeal is not the cause of most that delay, and the balance of the
delay is not attributable to the Claimant.
Alternative employment
79.
The Claimant’s next grounds relate to the
Tribunal’s findings concerning suitable alternative employment. She argues
that the Employment Tribunal “misdirected itself in law in relation to the duty
of an employer to provide sufficient information as to suitable alternative
employment prior to redundancy”. She argues that the Tribunal effectively
placed the burden of proof upon her to establish that there was suitable
alternative employment with the Respondent, whereas the burden of proof ought
to have been the opposite. The first of these grounds was always in the Notice
of Appeal. The second was added by way of amendment.
80.
During the course of argument we noted
that the Respondent appeared to have produced to the Tribunal, and the Tribunal
appeared to have considered, only a single set of vacancies produced on 11
August. We put it to Mr Sheridan that on any view this seemed inadequate: the
Tribunal found that a period of two months was required for consideration and
discussion of vacancies; yet apparently found that there was no chance of
alternative work based only on a snapshot on 11 August. It seems inconceivable
that an organisation such as the Respondent will have had no vacancies arising
or expected by the end of September. Mr Sheridan submitted that this was not
within the present grounds of appeal and that he was taken by surprise by the
point. We said that we would give him an opportunity to put in supplemental
submissions as to whether the matter was within the present grounds of appeal;
whether permission to amend should be granted; and how he would respond to the
point. With our permission the parties put in supplementary submissions after
the hearing.
81.
Mr Sheridan has made the following
submissions on the question of alternative employment.
(1) The
Employment Tribunal correctly directed itself by reference to Software
2000 Ltd v Andrews [2007] IRLR 569; see paragraph 5 of its reasons. He
took us also to the decision of the Appeal Tribunal in Virgin Media v
Seddington [2009] UKEAT/0539/08/DM at paragraph 15.
(2) The Respondent’s case before the Tribunal was
that, had a fair process been followed, there would have been a short
consultation period during which the Claimant would have had the opportunity to
apply for any of the vacancies on the 11 August list, but that in fact the
vacancies were not suitable. The Employment Tribunal heard lengthy and cogent
evidence from the Respondent’s witnesses as to why the Claimant was not
suitable for any of the vacancies, and was entitled to accept that evidence;
its conclusion was not perverse.
(3) It was for the Claimant to contend that, had a
fair procedure been followed, it would have been obliged to provide her with
any vacancy lists produced after 11 August 2008 and consider her for those
vacancies. She did not put forward this contention. It was not for the Tribunal
to put the case for her: see Muschett v HM Prison Service [2010] IRLR 451. If and only if she raised the issue would the Respondent be obliged
to disclose any subsequent vacancy list.
(4) In so far as this is her argument on appeal,
it is a new argument, not raised below, which ought not to be permitted on
appeal save in exceptional circumstances: see Jones v Governing Body of Burdett Coutts School [1998] IRLR 521. The fact that the Claimant represented
herself did not amount to an exceptional circumstance.
(5) In any event this argument is not covered by
the Notice of Appeal and the Claimant ought not to be given permission to amend
further. He submitted that the Respondent was prejudiced by the late raising
of the argument, not least because the Respondent had not retained vacancy
lists from 2008.
(6) In any event, he submitted, it was implicit in
the Tribunal’s reasoning that it considered the prospect that any suitable
alternative vacancies would arise over the period from August to October 2008
and discounted that prospect. He pointed out that the Tribunal found the
Claimant’s role to be primarily administrative; and that the roles in the
August 2008 vacancy list were primarily client-facing roles of a different
character.
82.
The fundamental task of the Tribunal, in awarding compensation for
unfair dismissal, was summarised by the Appeal Tribunal in the
judgment of Elias P in Software 2000 Ltd v Andrews as
follows:
"(1) In assessing compensation the task of the tribunal is
to assess the loss flowing from the dismissal, using its common sense,
experience and sense of justice. In the normal case that requires it to assess
for how long the employee would have been employed but for the dismissal.
(2) If the employer seeks to contend that the employee would or
might have ceased to be employed in any event had fair procedures been
followed, or alternatively would not have continued in employment indefinitely,
it is for him to adduce any relevant evidence on which he wishes to rely.
However, the tribunal must have regard to all the evidence when making that
assessment, including any evidence from the employee himself. (He might, for
example, have given evidence that he had intended to retire in the near
future.)
(3) However, there will be circumstances where the nature of the
evidence which the employer wishes to adduce, or on which he seeks to rely, is
so unreliable that the tribunal may take the view that the whole exercise of
seeking to reconstruct what might have been is so riddled with uncertainty that
no sensible prediction based on that evidence can properly be made.
(4) Whether that is the position is a matter of impression and
judgment for the tribunal. But in reaching that decision the tribunal must
direct itself properly. It must recognise that it should have regard to any
material and reliable evidence which might assist it in fixing just compensation,
even if there are limits to the extent to which it can confidently predict what
might have been; and it must appreciate that a degree of uncertainty is an
inevitable feature of the exercise. The mere fact that an element of
speculation is involved is not a reason for refusing to have regard to the
evidence.
(5) An appellate court must be wary about interfering with the
tribunal's assessment that the exercise is too speculative. However, it must
interfere if the tribunal has not directed itself properly and has taken too
narrow a view of its role.”
83.
Where (as in this case) the question is whether there was suitable
alternative employment which the employer ought to have offered the employee,
it is important that Tribunals should be realistic about what an employer can
be expected to prove. This, we think, is the message of Virgin Media v
Seddington in which Underhill J said (paragraph 15):
“But more significant is the fact that the Tribunal regarded the
burden of proof as being on the company. That approach would be reasonable in a
case, such as King v Eaton, of unfair selection for redundancy (or of a
procedurally unfair dismissal for misconduct): in such a case the question is
what the employer himself would have done if a fair process had been followed,
and it is appropriate that the burden of showing that he would, or might, have
dismissed anyway should be on him. But, as we have already observed (see para.
9 (1) above), this case is not of that kind: the issue which determines loss is
whether the Claimants would have found, and accepted, alternative employment.
As to that, we do not think that the burden can be regarded as being at all
points on the employer. The burden may indeed be on him to raise the issue (if
the employee has not) – that is, to assert that there was no suitable
employment that the employee could or would have taken – and he will also have
to provide appropriate evidential support for that assertion: the basic facts
about alternative employment will be within his knowledge and not – at least
not always or not completely – within the employee's. But if he raises a prima
facie case to that effect, it must, it seems to us, be for the employee to say
what job, or kind of job, he believes was available and to give evidence to the
effect that he would taken such a job: that, after all, is something which is
primarily within his knowledge. To the extent that any uncertainty about the
position is the result of the absence of evidence which the burden was on the
employee to supply, then it would be unfair for that uncertainty to be deployed
against the employer.”
84.
In this case, as we have seen, it was admitted that the dismissal was
unfair. It is, however, important to keep in mind that an employer, prior to
dismissing an employee for redundancy, is expected to consult an employee on
the question of alternative employment and to take reasonable steps to offer an
employee alternative employment. The Tribunal recognised this basic principle
in paragraph 13.3 of its reasons, when it set at 2 months the period for which
it awarded compensation, saying that the period was to allow for “warning,
proper consultation, discussion of vacancies with the Claimant, the Claimant’s
application for vacancies if she chose to make any, the rejection of those applications
for unsuitability, a final meeting, an appeal and so on”. It is very common
for vacancies to arise during a period of consultation: if it was reasonable
for such a vacancy to be offered to an employee it would of course be no answer
for an employer to say that the vacancy did not exist at the start of the
period of consultation. It follows that a Tribunal, when assessing
compensation for an unfair dismissal which peremptorily made no allowance for
such a period of consultation, must take account of the chance that suitable
alternative employment might arise for the employee at any point during the
period.
85.
Drawing the threads together, it seems to us that it was for the
Respondent to produce evidence as to what vacancies existed during the period
over which it ought to have consulted the Claimant. These were “the basic
facts about alternative employment” (see Virgin Media above)
which were within the Respondent’s knowledge but outside the knowledge of the
Claimant who, as we have seen, was placed on gardening leave at the outset and
not even shown the August vacancy list. Both parties would then be in a
position to adduce evidence about the suitability of those vacancies; and it is
in practice unlikely that anything would turn on the burden of proof. We do
not accept Mr Sheridan’s submission that it was for the Claimant to adduce
evidence or make specific submissions as to vacancies after 11 August; on the
contrary it was for the Respondent to produce evidence about what vacancies
arose if it wished to limit the Claimant’s period of loss on the basis that she
would not have been employed in the long term. Nor do we accept Mr Sheridan’s
submission that the Claimant is seeking to raise a new point which was not
argued below. It was her case that her loss of earnings should not be limited
to a short period; as Software 2000 and Virgin Media
show it was for the Respondent to adduce relevant evidence as to vacancies if
it wished to make this point good.
86.
In this case the Respondent relied on a list of vacancies, produced on
11 August but not shown at any time to the Claimant or for that matter to Mr
Fleming. The Tribunal found that the Claimant was not suitable for any of
those vacancies; and it seems to us that this was a question of fact for the Tribunal.
We do not think the Tribunal can be said to have erred in law in its findings
on that matter; or that the Tribunal placed any burden of proof on the
Claimant. On the contrary; the Tribunal accepted the evidence of the
Respondent’s witness on the matter.
87.
For the reasons we have given, however, we do not consider that the
Tribunal should have restricted itself to considering a list of vacancies as at
11 August 2009. As a matter of law the Tribunal ought to have considered the
chance of a vacancy arising over the whole period in question. The
Respondent’s peremptory dismissal of the Claimant deprived the Claimant of the
period of consultation which any reasonable employer would have afforded;
consultation should have included vacancies over the whole period, not merely
vacancies existing at the outset. We do not accept that it is implicit in the
Tribunal’s findings that no suitable vacancy existed after 11 August; it seems
to us that the Tribunal restricted itself to considering the August vacancy
list without considering whether any subsequent vacancy might have arisen. It
is not fanciful to suppose that there may have been subsequent vacancies
suitable for the Claimant. As the Tribunal found, some other employees who
were redundant were redeployed; and the Claimant had banking qualifications as
well as skills of an administrative nature.
88.
Having considered the Khudados principles, we take the
view that it is just and proper to grant permission to amend to take this
point. We do not propose to repeat what we have said earlier in relation to
other grounds of appeal; but we will concentrate on two particular points which
are specific to the question of alternative employment.
89.
We will accept, for the purposes of this appeal, that the Respondent has
not kept vacancy lists from 2008. This is not, however, a point which carries
great weight with us. The Respondent, having accepted in its response that the
dismissal was unfair on procedural grounds, should have put before the Tribunal
evidence as to vacancies over the whole period when proper procedures would
have been carried out. It was not satisfactory to put forward a list which was
no more than a snapshot in early August, taking no account of any consultation
period. Moreover even if the Respondent has not kept vacancy lists it ought to
be able to show what posts were filled in the latter part of 2008; and if any
of these were suitable for the Claimant why she was not told of them or offered
them.
90.
We accept that the point concerning alternative employment over the
consultation period crystallised in the course of the appeal hearing before
us. The question of alternative employment was, however, always an issue for
consideration at the appeal; Mr Sheridan had dealt with the key authorities in
his skeleton argument and submissions; and we think that it is appropriate to
grant permission to appeal to enable the Claimant to argue it.
The two month period
91.
The Claimant submitted that the
Employment Tribunal erred in adopting the approach in Polkey v A E Dayton
Services [1987] IRLR 503 at all, given the seriousness of the
Respondent’s breaches of employment law, her work experience and her
professional banking qualifications – as well as the fact that the organisation
providing the software for the global infrastructure finance project was still
working for the Respondent.
92.
We reject this submission. Once granted
the Tribunal’s finding that there was a genuine redundancy, it was not an error
of law to apply the principles in Polkey. The Tribunal’s
selection of the 2 month period did not involve any error of law in itself.
Bonus
93.
The Claimant argues that the Employment
Tribunal ought to have taken into account her entitlement to a bonus in its
assessment of compensation. She relies on the decision in Rutherford v Seymour Pierce [2010] IRLR 606. However, unlike the contract under discussion in Rutherford, the Claimant’s contract expressly stated that in order to receive
a bonus employees must be in employment on the payment date. On the Tribunal’s
findings, the Claimant would have been fairly dismissed on 30 September, prior
to the payment date – indeed, on information supplied by the Claimant, prior to
the date as at which the bonus was calculated. Accordingly, on the Tribunal’s
findings, if the Claimant had been fairly dismissed she would not have been
entitled to a bonus: see Commerzbank AG v Keen [2007] IRLR 132 at
paragraphs 73 et seq. As an independent point, the Claimant’s argument on the
question of bonus has no substance.
Remission
94.
It follows from our conclusions, set out above, that the appeal will be
allowed in part.
95.
Since the Appeal Tribunal deals only with questions of law, and is not a
fact-finding body, the case must be remitted for decision. On remission, the
Tribunal’s first task will be to make findings as to what occurred at the
meeting on 30 July. If, as a result of these findings, the Tribunal further
concludes that the dismissal or its timing was influenced by concerns personal
to the Claimant (such as, for example, concerns about her performance never
brought to her attentions) it may need to revisit the conclusion that (1) the
dismissal was only unfair on procedural grounds and (2) the dismissal was not
an act of sex discrimination. If these conclusions are revisited and altered,
then of course all questions of remedy and compensation will need to be
reconsidered.
96.
If, however, the Tribunal after making findings as to what occurred at
the meeting on 30 July, finds in favour of the Respondent that the dismissal was
indeed genuinely on the grounds of redundancy by reason of the cancellation of
the project, independent of any concerns personal to the Claimant, then it will
still need to consider (1) remedies, and (2) if the Tribunal decides to award
compensation, in what sum, having regard to any chance that there would have
been suitable alternative employment for the Claimant over the whole of the
appropriate consultation period.
97.
This leads us to the final question – whether the proceedings should be
remitted to the same or to a different Tribunal. The Appeal Tribunal, in
deciding this question, takes into account criteria set out in Sinclair
Roche & Temperley v Heard [2004] IRLR 763. Mr Sheridan submitted
that the proceedings should be remitted to the same Tribunal. The Claimant was
more guarded, saying that she would be in favour of remittal to the same
Tribunal if it would result in a speedier resolution of the matter. While a
hearing might be shorter in front of the same Tribunal, we do not think there
is any guarantee that the overall resolution would be speedier; this will
depend on availability of the different participants both on the Tribunal and
on each side. It seems to us that it would be unsatisfactory for the same
Tribunal to hear the matter on remission; it would, we think, now be
unsatisfactory for that Tribunal to consider what occurred at the meeting on 30
July and whether re-engagement is practicable when it did not consider those
issues at the appropriate time. We think that the interests of justice are
best served by remission to a different Tribunal.
