Washbrook v Quigley [1992] UKEAT 485_91_3010

EAT
Washbrook v Quigley
[1992] UKEAT 485_91_3010 · 1992-10-30
MR JUSTICE WOOD (PRESIDENT) : This is an appeal by Mr Washbrook who was the Respondent before an Industrial Tribunal who found that the Applicant, Mr Quigley had been unfairly dismissed by him. They awarded compensation of £3,343.Before the Industrial Tribunal Mr Quigley was represented by Counsel, Mr Washbrook appeared in person.Mr Quigley was employed as a teacher at the Kingsbury House School in Wiltshire. His appointment started in September 1985. He is a qualified art teacher and art was his primary subject. However, he was also able to teach other subjects to children at infant and junior level.The school is a co-educational day school and until Autumn 1990 it was catering for children up to GCSE level. It is a comparatively small school and it was owned by the Respondent, the present Appellant, Mr Washbrook. He has in fact sold it more recently.In February 1989 Mr Washbrook told the staff that as from the Autumn of 1990 the school would cease to offer GCSE and would become solely a primary school. This inevitably meant there were fewer lessons in all and that there might be the necessity for redundancies. Although art was his principal subject Mr Quigley was also teaching history, mathematics and games.During 1990 Mr Quigley was aware that the amount of art teaching would reduce and as he was principally an art teacher he was seeking other employment. Mr Washbrook raised no objection to this.During the summer term 1990 art lessons were reduced to 14 and the applicant taught six periods of mathematics. He also took some scripture and history periods. In May 1990 he was handed a time-table for the school year 1990/91. The Tribunal regarded this as an important document because it showed that Mr Washbrook anticipated that the applicant would stay on for that school year and would be teaching a substantial amount of maths (12 periods a week) and scripture (4 periods a week). The maths teaching would therefore be equal to the art periods which were 12 a week.In July 1990, Mr Washbrook gave Mr Quigley one term's notice of termination of his appointment. He was asked for his reasons and he gave them in a letter of the 11th September. In that letter he gave a number of reasons.Following this letter the applicant worked out his notice, but it is right to say that on the 22nd October he was given a final warning covering several different matters. The Tribunal found that this did not affect the dismissal.The first duty of the Tribunal was to decide what was the principal reason for the dismissal. They deal with the matter in paragraph 8 as follows:
"The respondent is a somewhat bombastic and impulsive person. He does not like to be crossed. That has made it much more difficult for us to assess what was the principal reason for the dismissal. The letter sets out a number of different reasons some of which relate to conduct, one of which would not amount to an admissible reason for dismissal namely that the applicant was thinking about jobs. However having considered this matter we have come to the conclusion that the principal reason for the applicant's dismissal was the reduction in the requirements for employees to carry out work of the kind which the applicant was doing. The applicant was therefore dismissed for redundancy."
In paragraph 9 of the decision the Tribunal looks at the evidence before it of substantial reductions in staff levels and analyses the reason behind the dismissal. They accept the evidence of the applicant as to the true reason when he is quoted as saying:
"`The morale in the staff room was low, and I think he probably decided to get rid of me after all and that that would simplify it. He was irritated when I asked if I could go on the interview. I feel that up to the end of May he was hoping to hang on to me. The interview was an indication that I could not be there for years more so he chopped it then.'"
Having decided that the reason for the dismissal was redundancy, the Tribunal then looked to see whether the procedure adopted was fair. The first stage was to examine the criteria. The Tribunal decided that there did not seem to be clear criteria and they summarise their view by saying:
"The respondent's subjective views are not satisfactory and we are not satisfied that the respondent acted reasonably in selecting the applicant."
The Tribunal also look at the procedure overall and summarise their views in this way:
"It is proper to expect a small employer to discuss with the employee what the possibilities are. During the Summer Term 1990 the whole question of what was going to happen in the Autumn and Spring Terms was in the melting pot. There were a number of possibilities and the respondent did not consult the applicant about those possibilities because, as we find, there was a considerable subjective personal element in the reasons for the applicant's selection. For those reasons we have come to the conclusion that the applicant was unfairly dismissed."
Having reached that conclusion, the Tribunal in turning to compensation had first to seek to assess the likelihood of the dismissal taking place had the procedures been satisfactory. In this they were applying the principles set out in Polkey v. A E Dayton & Sons Ltd [1988] ICR 142 . This is never an easy issue and in paragraph 12 of the decision the Tribunal consider the evidence before them and decide what the likelihood was that Mr Quigley would have been dismissed in any event. They decide that the chance was a 50% chance and therefore the compensation to be awarded would only be 50% of what a full award would have been. Thereafter the Tribunal assess the amount of compensation.Mr Washbrook appeals. It is convenient to take the fourth of his five points first. In that he criticises the calculation of compensation, but as became quite apparent during his submissions there was a misunderstanding of his reading of the decision itself and there is nothing in that point.He first submits that a statement of a Mrs Dorothy Roper which he handed in to the Tribunal was not considered by them in that it was not mentioned in the decision itself. That statement was critical of Mr Quigley. It is clear that this statement would be relevant to Mr Quigley's conduct and the Tribunal have reached the conclusion that the principal reason was not the conduct but was redundancy. It seems to us therefore that the Tribunal must have considered the contents of that statement, which was admitted in evidence, and which was therefore part of the evidence which formed the basis of their deliberations.The second point made by Mr Washbrook is that two written statements were put in evidence on behalf of the applicant. It seems to us that that again is not a matter of criticism. The third point he makes is that a document which was referred to in the decision as "being brought into being in May 1990" was undated and that the Tribunal were in error in putting a date upon it. It is to be noted that in paragraph 5 of the decision the Tribunal say that in May 1990 Mr Quigley was handed the time-table. They do not purport to say that the document came into being in May 1990 and it seems to us from what Mr Washbrook has told us, that it did not. This could not therefore have affected their decision.The next point made by Mr Washbrook, and clearly one upon which he relies heavily, is that this dismissal was on the basis of conduct and that redundancy was merely an excuse thought up at a later date. It is quite apparent from a reading of the Originating Application and of the Notice of Appearance that there is an allegation of misconduct, but it does not seem to us that it was relied upon for the principal reason for the dismissal. The Tribunal had the documents before in which those issues were raised, they had Mrs Roper's statement before them and clearly they rejected that as the reason for the dismissal.Finally, Mr Washbrook argues that before deciding against him on the basis of redundancy and lack of criteria and consultation, the Tribunal should have put direct questions to him. We do not know how the matter was handled below but it is quite apparent that Mr Washbrook was cross-examined by Counsel and no doubt all those matters were put to him.We fully appreciate that Mr Washbrook feels extremely strongly about this matter and that the decision that went against him was unfair to him, but we find ourselves quite unable to discern any error of law and this appeal must be dismissed.