Hopkins & Anor v Monkton House Educational Trust [1992] UKEAT 9_91_0211

EAT
Hopkins & Anor v Monkton House Educational Trust
[1992] UKEAT 9_91_0211 · 1992-11-02

JUDGE J HULL QC:

In this case there were three schoolmasters who applied to the Industrial Tribunal sitting at Cardiff on 24 April and 15 October 1990. These were all senior gentlemen who had spent, in two cases, a lifetime in education; the other, after a career in commerce, had devoted a substantial part of his life to education. They had made their careers in the state sector and they were all specialist teachers. Mr Martin, with whom we are not concerned, had been a geographer; Mr Hopkins, with whom we are concerned, was a physicist; and Mr Sheppard was a language teacher teaching French.Each of these men had achieved distinction. There was no criticism of them, either from the point of view of behaviour or ability and late in their careers, having earned their pensions in the state sector, they came and worked part time for the respondents, who are a Trust in charge of the school in which these gentlemen taught their respective subjects. They had each been there for approximately two years or a little more at the time with which we are concerned.In 1989, the question arose of making the school more efficient and the Educational Sub-committee met to consider what steps should be taken. They reached the conclusion that the school should change from employing part-time staff to employing full-time staff where possible. There were all sorts of advantages perceived by the committee in that.Mr Martin, Mr Hopkins and Mr Sheppard were part-timers, not in the sense of attending only one day a week - they worked a substantial number of hours a week - but they did not work full-time. Neither the Industrial Tribunal nor this Appeal Tribunal are concerned with whether it was a sound management decision by the sub-committee, that was a matter for them and the Governors to whom they reported. The sub-committee reported to the Governors and that same day, 3 May 1989, a decision was taken, on the grounds I have mentioned and with no criticism of these three teachers, to dismiss them; notices were served that day to expire at the end of August.There was no consultation with any of these men and that was a serious matter. Apparently the view was taken, based partly on gossip and talk in the common room, that none of these teachers would be interested in or prepared to accept full-time employment and, therefore, it was pointless to consult them. That was largely the responsibility of the gentleman who eventually became headmaster and who reported what he understood the position to be to the Governors.The decision was taken, therefore, in a way in which no doubt the Governors later regretted, to dismiss the three men without consultation. It was a great shock to each of them and it appears, incidentally, that one of the reasons they wished to work part-time rather than full-time was the fear that their pensions would be affected and possibly suspended during a period of full-time work - a fear that may not have been justified and certainly was never fully explored. Another reason may have been that one or more of the three men liked the status of part-time work, which gives rather more spare time. However that may be, the decision was to dismiss them.Concerning Mr Sheppard, who taught only French, the decision turns out to have been, apparently ill-conceived; in fact it emerged and, indeed, may well have been obvious at the time, that another full-time teacher could not be accommodated in the languages department. All the work would have to be done either by those already full-timers or by part-timers and, in the event, no advertisement was ever placed for a full-time teacher and no full-time teacher was ever introduced.In those circumstances, each of the men complained to the Industrial Tribunal and the Tribunal, having stated that there was no criticism against any of these distinguished teachers, found that the way in which they had been treated over the dismissal was unfair. Indeed, they found that Mr Sheppard, unlike the others, had not been invited to apply for a further post and they found that, unhappily, the omission to do that was not an oversight as the school suggested to them but that the school had no intention that Mr Sheppard should be invited to apply.We are not concerned with the case of Mr Martin, the geography teacher. The Tribunal found that he had been treated shabbily; that if he had been consulted he would have said that he was prepared to work full-time and would have obtained full-time employment. They awarded him the maximum compensation in respect of that.We turn first of all to the case of Mr Hopkins. Mr Hopkins was a physics teacher, had been a Head of Science and had devoted his life to that part of his profession. The Tribunal found the following:
"4 ............... He was handed his notice of dismissal, Ex.R.6. on 3 May by the Headmaster. Mr Hopkins was shocked. His letter of dismissal invited him to apply for the full-time post as Head of Physics but on the day following receipt of his notice, Mr Hopkins saw the Headmaster and told him that he was not interested in a full-time appointment. This was done almost in a fit of pique. ... "
Pausing there, what was being suggested to Mr Hopkins was not that he should carry on on a full-time basis but that he should apply, no doubt in common with others, and would be adjudicated on as if he was applying for a fresh appointment. The Tribunal continue:
"... Mr Hopkins not unnaturally felt that as he had single-handedly run the Physics Department he should have been offered the full-time post not merely invited to apply. He had raised the general standard of the Department and he told the tribunal and it was accepted that had he been offered the post on a full-time basis he would have accepted it, but at no time was there any specific enquiry directed to him as to whether he would be prepared to accept a full-time position."
That is a very important finding. There was nothing against Mr Hopkins: his employers were very glad to have employed him and he told the Tribunal that had he been offered the job on a full-time basis he would have accepted it. We have looked at the evidence and he undoubtedly said that and the Tribunal said that "it was accepted". I have to say that at first I thought that that meant that it had been accepted on behalf of the respondents at the hearing but Mr Masterman, who appeared before the Tribunal, tells us that that was certainly not so and he understood that that meant that it was accepted by the school previously. Nonetheless, that is a very important finding that had Mr Hopkins been offered the post on a full-time basis he would have accepted it and it was not challenged by the school at the time. That on the face of it meant, inevitably, that the absence of consultation prevented that fact from coming did not come to the attention of the school. The inference would have been that, since he was well regarded, if there had been consultation he would have agreed to take a full-time appointment if the school thought it was really necessary. In those circumstances it would be said that Mr Hopkins suffered very serious damage by not being consulted. This, of course, is a question of fact and it is for the Tribunal to go into these matters.However, as the Tribunal go on they seem to us to be departing completely from that finding. In paragraph 5 they say:
"5. ......... Here is a classic situation where so far as Mr Martin is concerned consultation would have made a great difference. We do not accept that because he, and indeed, Mr Hopkins were invited to apply for the posts, that amounts to consultation. Consultation goes much deeper than that. It involves sitting down and discussing with the employees the reasons for the re-organisation and the options open to both sides. We accept that certainly in the case of Mr Sheppard, and possibly in the case of Mr Hopkins consultation would have made no difference ....."
That, on the basis of what they had found and accepted in para 4 seems an extraordinary conclusion. They go on to explain their conclusion, which on the face of it contradicts entirely what is said in paragraph 4, as follows:
"6. For the reasons given we consider that all three applicants were unfairly dismissed and are entitled to compensation. In the cases of both Mr Hopkins and Mr Sheppard, the compensation will be limited to the basic award. We do not believe that either man would have accepted full-time appointments but they should have been consulted. ...."
It seems to us that that completely contradicts the finding which the Tribunal had previously said that they made on the basis of uncontradicted evidence.In those circumstances, something has clearly gone wrong. The Tribunal in one part of their decision say that consultation would have been profitless as far as Mr Hopkins is concerned because he would not have accepted a full-time appointment and a page or two before they are clearly saying that it was accepted that had he been offered the post on a full-time basis he would have accepted it. Obviously, with great respect to the Tribunal, that is irrationality and must show that a mistake of some sort has been made in their reasoning and entitles us to say that we must ask the Tribunal to consider the matter again.It would have been quite different if the Tribunal had found some objection to Mr Hopkins or if his evidence was untrue but, on the contrary, they say "it was accepted". We are therefore, with respect, saying to the Tribunal that they must consider the matter afresh, starting with the sort of consultation which they think should have taken place and then considering the evidence of the parties on that point, if necessary hearing them again. Asking: what would have been the likely result? -what would Mr Hopkins' attitude have been? -what would the school's attitude have been? and would they, as appears at the moment to be the obvious inference, have offered him his existing job but on the basis that he should do it full-time? -and would that have been accepted?We have been referred to the decision of the House of Lords in Polkey v Dayton Services [1988] ICR 142 , in which Lord Bridge dealt with the effect of the absence of consultation. He cited, with approval, from the decision of this Appeal Tribunal (Browne-Wilkinson J) in the case of Sillifant v Powell Dyffryn Timber Ltd [1983] IRLR 91 at p.96, as follows:
"There is no need for an "all or nothing" decision. If the industrial tribunal thinks there is a doubt whether or not the employee would have been dismissed, this element can be reflected by reducing the normal amount of compensation by a percentage representing the chance that the employee would still have lost his employment."
That may or may not arise. The Tribunal may or may not, when they reconsider the case, come to the conclusion that there was merely a prospect as opposed to a near certainty that Mr Hopkins would have retained his job on the new terms and if they do, that will be a matter for them to assess. Bearing in mind that this is the responsibility of the Industrial Tribunal and not the Appeal Tribunal we say no more about that except that we remit it and hope that the Tribunal will get some assistance from our observations on their finding.We now turn to the case of Mr Sheppard. The Tribunal, quite rightly, said that Mr Sheppard did not desire and would not have accepted full-time employment but it was Mr Sheppard's view that a full time French teacher was not required and, indeed, could not be accommodated. He maintains that he was right because there was no advertisement for a French teacher and by July, according to the evidence, the school had decided that no full time French teacher was required.In those circumstances, it is put on behalf of Mr Sheppard that he might very well have told them at the time that he could not see how a full-timer could be fitted in, on the other hand, he might not have done. Consultation is not a process that should be ended abruptly. When the school came to the conclusion, perhaps in July, that a full-timer was not necessary consultation could have been re-opened and if it had been it would have been said that perhaps we (the school) have all been going too far over this and perhaps we can continue with you on a part-time basis. It may be that Mr Sheppard could not have fitted in with the new requirements for a part-timer: it may be that there is something more in that point; it may be that there is far more evidence that was not given and we cannot go into.What the Tribunal said at the end of their decision was:
"6. .......... In the cases of both Mr Hopkins and Mr Sheppard, the compensation will be limited to the basic award. We do not believe that either man would have accepted full-time appointments but they should have been consulted."
It appears to us that there the Tribunal is barking up the wrong tree. It is perfectly true that Mr Sheppard would not have accepted a full-time appointment, but that is not the point. What had to be considered on the evidence was whether, if he had been consulted, it would have been revealed to the employers sooner or later that they did not need to dismiss him at all because a part-time employmee was all they required. There was a possibility that Mr Sheppard could have provided all their requirements on a part-time basis.That was a matter for consideration and it appears to be a matter that this Industrial Tribunal, unhappily, did not give their minds to at all.We should add that the applicants wrote, quite properly through their solicitors, asking the Chairman if he could resolve the apparent contradiction of the case of Mr Hopkins and also deal with the case of Mr Sheppard. The Chairman was good enough to authorise the Assistant Secretary of Tribunals to send a reply even though he was not prepared to discuss the matter. The letter says:
".......... in an effort to assist [the chairman] is prepared to make the following comments:- (a) Mr Hopkins. The tribunal was influenced by the fact that Mr Hopkins did not apply for the post of full-time Head of the Department of Physics, and believed this was because of concern over his pension."
Now that may very well be material to considering the amount of compensation to which Mr Hopkins might be entitled if the Tribunal were to conclude that Mr Hopkins failed to do something that he might reasonably have done in his own interest but it does not, with respect, answer the question, what would have happened if he had been consulted? which is a different question.The letter then goes on:
"(b) Mr Shepherd. In his evidence in chief Mr Shepherd said that he had no intention of working full time."
That is true and uncontested but again it misses the point. The point is what we have endeavoured to indicate. The question of what compensation each of these gentlemen is entitled to (if any) is a matter for the Tribunal but the Tribunal must approach the matter in, if we may respectfully say so, a rational matter. That is, in the case of Mr Hopkins resolving the contradictions which their decision appears to give rise to and in the case of Mr Sheppard approaching the matter on the basis of considering what would have happened if he had been consulted as he should have been and not on what appears to us,to be the irrelevant basis of Mr Sheppard's unwillingness to accept full-time employment.Those are matters for the Industrial Tribunal and not for the Appeal Tribunal. We propose to remit the case to the same Industrial Tribunal to ask them to read our decision and to reconsider the matter afresh and decide what compensation to award to these gentlemen.