Wood v Brown & Root Vickers Ltd [1993] UKEAT 274_92_1307

EAT
Wood v Brown & Root Vickers Ltd
[1993] UKEAT 274_92_1307 · 1993-07-13

JUDGE J HULL QC:

This is a preliminary hearing under the Practice Direction. Mr Wood, the Appellant, was employed by Brown & Root Vickers Limited as sales manager and he was employed for more than six years. There came a time when re-organisation was required. This Company took in some additional executives, managers, senior people from another organisation, where I think they had themselves been made redundant or were in danger of being made redundant, and sought to fit them in with their own organisation. We are not of course going into all the facts for the purpose of this hearing for this is only an application under our Practice Direction in which we have to decide whether the appeal should proceed. We should explain that appeals to this Tribunal, by statute, can be brought only in respect of questions of law. There is no appeal to this Employment Appeal Tribunal on questions of fact. In that, we differ from the Court of Appeal in a very important way because the Court of Appeal can entertain appeals both from County Courts and from the High Court itself on points of fact. So what is sought to be established here is that there is a point or points of law and really there are two matters which are relied on.Matters came to a head in April 1991 when the proposed re-organisation was put to Mr Wood by the General Manager and then there were discussions with a Mr Grand, to whom he was also responsible. When he was first shown the proposed re-organisation, which involved a newcomer called McCann to whom he was to report, Mr Wood, found that wholly unacceptable and said so. The fact is that he was very upset. A crisis arose and hard things were said. In effect an ultimatum was presented to him, and the Industrial Tribunal found that he was dismissed.The matter fortunately was not left there, there were genuine attempts, as the Industrial Tribunal found, to discuss it. Eventually, after correspondence, a proposal was put to Mr Wood which in effect was for his re-engagement - that he should continue in his capacity as sales manager. That is dealt with from paragraph 35 onwards in the Tribunal's decision. This Industrial Tribunal not only seems to have conducted its hearing with great patience but gave extremely detailed and careful reasons for its decision. They say:
" 35. Mr Pryor [he was the general manager] suggests that the applicant should meet with Mr McCann in an informal session to debate the matter and the way forward.
36. The applicant in evidence very fairly accepted that if he was being offered the position of general sales manager industrial projects, as the general sales manager of the whole team, he would have accepted that position. He would have worked as part of the team. Although he had initially raised some 6 points, the offer of the position as general sales manager industrial projects was something which he would have been happy with. The question is was he offered that position and more importantly did it take in all projects and not just sales of software and systems."There was a question of sales of robotics and other heavier articles and that was very important to Mr Wood. So there the Tribunal set out the question which they had to consider.
"Although the Applicant made it clear he would continue to try to change the respondent's views about the other matters he raised, they did not prevent him continuing with the respondent. It was for this reason that he had a meeting with Mr McCann.
37. There is a clear divergence of evidence between the applicant and Mr McCann over the discussions which took place between them on 25 April. The applicant was quite clear in his evidence that he wanted total involvement and responsibility for the whole business area. He was not being offered involvement in automation and robotics. He was simply supporting Mr McCann in sales of software and systems. In the applicant's view Mr McCann confirmed the impression given Mr Grand that the applicant was not to be general sales manager on industrial projects, that was a title only, what the role involved was selling software and systems. Mr McCann gave evidence that the purpose of the meeting was to clarify and confirm the role of the applicant as general sales manager industrial projects in the fullest and widest sense. Mr McCann said he emphasised at the meeting how Mr Collins together with the applicant and himself would run the business as a team and that the applicant would be involved in the team. Through his involvement in the team he would have opportunity to put forward his views on any aspect of business. This meant that he could put questions in connection with the operational sides on how the project was run he could make comments and suggestions on improvement and changes in that project. Mr McCann reiterated that the whole emphasis was to make it clear that he was part of the team and the team would run as a business unit. Further, at no stage, according to Mr McCann, did he say that the applicant would be limited to sales of software and systems. He was general sales manager for the whole of industrial projects.38. Since there is a clear divergence of evidence, we have to decide as best we can whose evidence we prefer. We think it is of note that the letter of 22 April from the respondent to the applicant does refer to his position as general sales manage (industrial projects)."and they go on to refer again to the evidence, I will not read it all out. They refer of course to the Applicant's evidence; they say:
"We have had the benefit of seeing the applicant and Mr McCann give evidence. The applicant accepted that he was prepared to do the job of general sales manager. We find that at the meeting between the applicant and Mr McCann, Mr McCann made it clear to the applicant that he would be a member of the team, he would have overall responsibility for sales with that team, although there was to be a change in the reporting. That was the position on offer to the applicant. This was a position which was acceptable for the applicant."
In his Notice of Appeal Mr Wood says that is simply untrue, but that was the finding of the Tribunal who had the evidence before them. They go on:
"We believe that the applicant was still annoyed that Mr McCann was heading up industrial projects. We believe that the applicant was reluctant to work with Mr McCann."
This is quite unjustifiable says Mr Wood, but again that is the finding of the Tribunal.
"We think the applicant may well have hoped that the respondent would be prepared to offer some sensible settlement. The applicant was clearly prevaricating and seeking to raise as an issue his status as an employee. If he had accepted the position which we find was on offer, a position which he found acceptable, his position would have been clear. The issue of his dismissal would no longer have been a live issue. The applicant knew from telephone conversations after 29 April with Mr Griffiths and Mr Pryor that there was a role and that the respondent wanted him to accept that role."
and they conclude this paragraph by saying:
"He was not prepared to deal sensibly with the proposal put forward by the respondent. He seemed to be mesmerised by the dismissal and unfairness of it without really considering the position, namely that he was being offered reinstatement in a job which was in fact acceptable to him. . . . . Thus the respondent in effect, on the evidence we have heard, withdrew the offer. In the circumstances of this case, on the evidence we have heard, we believe that the applicant has failed to mitigate his loss. Here was a job offered to him by the respondent which the applicant was prepared to do and yet for whatever reason he failed to accept the offer."
That is criticised by Mr Bartlet, to whom we are very grateful, and who has addressed us on all matters which he thinks can properly be raised in support of the application that this appeal should proceed. He has referred us to Fyfe v. Scientific Furnishings Ltd [1989] IRLR 331 in which it was pointed out by this Tribunal that the duty is on the respondent to show if an applicant has failed to mitigate his loss and in substance here, says Mr Bartlet, this was the position. The Respondents failed to show that it was reasonable for him to accept what was on offer, bearing in mind the unreasonable behaviour of the Respondents which had led to the finding that he was dismissed only a fortnight before. We have looked at the case of Fyfe . That is a case which is very different on its facts. The majority, the industrial Members, thought the decision was quite simply perverse and the President of this Tribunal, Mr

Justice Wood said:

"Whilst accepting and agreeing with the criticisms made [by the industrial members] I prefer to base my decision upon the fact that when considering the issue of mitigation the Tribunal seems only to have addressed its mind to the calculation of the figures and to have ignored the surrounding circumstances, many of which are mentioned in the criticisms made by the lay members. The reasonableness of the applicant's decision must depend upon so many other factors than mere calculation, and if the Tribunal had considered them all then in my judgment, it might very well have come to the conclusion that the company had not discharged the burden of proof which was upon it. The reasoning therefore seems to me to have been flawed."
That case was in many ways, if not in all ways, completely different from the present case, but of course we must consider as being authority the reasons given by the Tribunal. This Tribunal points out that when considering an offer made by the wrong doer to the party aggrieved, it is certainly not the case that simply because it is a good offer it must be accepted. The Industrial Tribunal has to look at all the surrounding circumstances and decide whether it is reasonable.In this present case the Industrial Tribunal seems to have done precisely that. This was a case of a senior employee who had been with the Company more than six years. He had been treated in a way which was unworthy; he had been, in effect, dismissed and not in a straightforward way - things had been sprung on him. But thereafter the Company had shown itself anxious, if it could, to put matters right. It was a serious situation for the Company, it was reorganising, and eventually a Company must be allowed to manage its own business. It was a question for the Industrial Tribunal whether the Company acted fairly and reasonably and whether the offer which was being made on the 25th April should have been accepted. The Tribunal could, having heard the evidence, have reached a very different conclusion, could have decided that this offer was not being put forward wholeheartedly or even in good faith, could have decided to prefer the Applicant's evidence to that of Mr McCann, but it did not. It seems to all of us that there was no failure here by this Industrial Tribunal to do its duty or to consider where the burden lay. It had to decide whether to accept Mr McCann's evidence. If it did accept Mr McCann's evidence then it was entitled to take the view as a matter of fact that that burden was discharged and that the offer should have been accepted.It is pointed out to us that there is an apparent inconsistency, this is the way it is put, between what happened to the Appellant on the 11th April and then what happened to him on the 25th. If the behaviour was so unreasonable, in making offers on the 11th, that it should be construed as amounting to a dismissal, essentially the same thing was happening on the 25th. That might have been a very good argument to put to the Industrial Tribunal and we have no doubt it was put and that the Industrial Tribunal carefully considered all these matters. This is one of the most careful and closely reasoned decisions it has been my privilege to read. We all feel that there is no ground here for the criticism which is made. The Tribunal was entitled to reach the decision of fact which it did on that part of the case.There is another matter which causes concern. It was said that the Tribunal had failed to do its duty under Section 68 of the Employment Protection (Consolidation) Act 1978 and having found that the Applicant had been unfairly dismissed it failed to explain to him that orders for reinstatement and re-engagement could be made. We found that rather puzzling because there is nothing about the Tribunal's consideration of re-instatement and re-engagement in its decision at all. We read in a letter from the Applicant's then solicitors, which is with the papers, that in fact a substantial amount of time was devoted to evidence and submissions on just that topic but nothing is said about it and we do not know on what basis the Tribunal proceeded. We learned that there had been an application to review made to the Tribunal Chairman himself. The decision of the Tribunal on that application was not with our papers. However, fortunately Mr Bartlet was able to produce a copy and we have looked at it. On that application for review the Chairman set out exactly what had happened. It was correct that they had devoted a substantial amount of time to evidence and submissions relating to the possibility of either reinstatement or re-engagement. This is all set out in a four page document. Since they did consider it there was of course no question of there being any substantial breach of Section 68. Everybody was perfectly aware of what they were enquiring into. To go through the formal rigmarole of saying "it is now our duty to consider the question of reinstatement or re-engagement and we invite submissions about that", when in fact those submissions had been made to them, would have been quite meaningless. If it is a technical breach of the statute it is not a matter on which we could conceivably give leave to appeal. The Tribunal's decision, on the application for review, says as follows at paragraph 10:
"The applicant further argues that the interests of justice demand a review because the Industrial Tribunal did not set out its reasons for not ordering reinstatement."
- that is precisely the matter which had given us misgivings.
"It is quite clear from the original hearing that only one argument was relied upon by counsel for the respondent as to why the applicant should not have been reinstated. Although there was some suggestion that the position had been filled, Mr Storey in his submissions to us did not rely upon that. He relied upon Mr McCann's evidence when he said that he would find it exceptionally difficult to relate to the applicant in the future. There had been a breakdown of trust between the applicant Mr McCann. Before the Industrial Tribunal both the applicant and Mr McCann had called the other liar. The respondent's position was that it did not believe, in the light of the breakdown of trust which had been magnified by the Industrial Tribunal proceedings, it was going to be possible for the applicant to work with Mr McCann as part of his team. On the basis of the evidence, counsel for the respondent argued there would be a problem with future relationships. We had to decide whether or not it was reasonably practicable for the applicant to be reinstated. In reaching this conclusion we were entitled to have regard to the evidence we have heard, the way in which witnesses have given evidence before the Tribunal, and also to our experience of industry. The Chairman is particularly grateful to his lay members for their experience in this respect. We unanimously concluded that it was not reasonably practicable for the applicant to be reinstated. This was not a case where the applicant was an employee who was one of many working in a relatively lowly position. He had to work in close proximity with Mr McCann and was a member of Mr McCann's team. It was quite clear to us even if it was not clear to the applicant that it was not going to be practicable for the applicant to work with Mr McCann in the future. Here we are dealing with two members of senior staff. On the evidence we have heard this was not a case where Mr McCann was simply saying that the trust and confidence had gone between the applicant and himself so as to avoid having the applicant reinstated, we considered he genuinely believed it and we have no doubt on the basis of what we heard and saw that that was so."
That is a finding of fact based on having heard Mr McCann's evidence and supplies the gap which existed in the Tribunal's decision.In our view, in both these important matters, there can be no going behind these decisions of fact, there is no ground whatever for saying that these are perverse findings or findings where the Tribunal have overlooked important evidence. No question of law arises and we are unable to allow this appeal to proceed.