Troll v London Borough Of Hounslow [1993] UKEAT 97_92_3007

EAT
Troll v London Borough Of Hounslow
[1993] UKEAT 97_92_3007 · 1993-07-30

JUDGE J HULL QC:

In this case Mr Troll appeals to us against the decision of the Industrial Tribunal sitting at London (North) on the 7th, 8th, 9th and 10th October and 27th and 28th November 1991.That Tribunal heard Mr Troll's complaint of unfair dismissal. It is a very sad fact that Mr Troll is blind and has been blind from birth. He was employed by the Respondents, the London Borough of Hounslow, as a school teacher. He was first employed by them in January 1986 as a probationer at Hounslow Manor School and he was finally dismissed on 30th April 1991. He taught business studies, and of course, in view of his disability, special arrangements had to be made.Hounslow Borough Council has adopted an Equal Opportunities Employment Policy. They say, amongst other things:
"The Council's policy is that no job applicant and no employee shall receive less favourable treatment than another on grounds of gender, age, disability, family circumstances, marital status, being lesbian or gay, race, colour, nationality or ethnic or national origin, trade union activity or religion and that none shall be disadvantaged by conditions or requirements other than on a genuine occupational requirement basis ."
They go on to say that they are committed to genuine equality of opportunity and that they will actively promote equal opportunity.It was not only the Council who sought to promote Mr Troll's employment; they of course were greatly concerned, but so were other agencies. I do not need to go into all the details but Mr Troll received a good deal of assistance, in particular from Government funds. Very large sums indeed were disbursed to provide him with special computer equipment. As a blind man, if he was to read anything it had to be in braille and apparently there are devices which will turn the printed word, via a computer, into braille. All that, as I have said, was very expensive, so in addition to the human investment in Mr Troll's employment there was a very, very large financial investment. I do not need, in the circumstances, to go into all the details. Mr Troll was employed with two other teachers. His actual work hours were considerably less than those of the other two teachers, but he was senior in appointment. There was no suggestion that he was not employed full-time. There came a time when there were important changes in the organisation of education and those had an immediate impact on the situation of Mr Troll's employment; in particular, there is something called "LMS", Local Management of Schools, under which each school becomes self-sufficient and responsible for its own finances. There was also a situation which appeared to be arising in which there would not be sufficient employment for Mr Troll. It seemed that his work would disappear. He was employed in the Business Education part of the school, with the more senior pupils, and he was particularly responsible for information technology and matters concerned with computers and it became apparent that the work for him was likely to become, in effect, nil. That was all considered and there were many consultations, much debate amongst various people as to what if anything could be done for Mr Troll and his employment. The question of secondment was considered and the question of transfer in the school to teach other subjects was also considered. It is impossible to read the papers in this case without feeling profound sympathy with Mr Troll in his struggle against adversity and we are very pleased to see that the Industrial Tribunal has set out these matters at great length. Anybody who is interested in Mr Troll and his situation (and I daresay a great many people are) could not do better than simply read the decision of the Industrial Tribunal.There were meetings of the Governors, as there had to be when the question of redundancy arose, and there was to be a hearing on the 24th January 1991 of which Mr Troll was given notice. He objected that he could not be ready for that, his adviser was out of the Country. He simply did not attend that meeting, feeling that he was not in a position, apparently, to do himself justice. The Governors had arranged another meeting to hear a possible appeal, and having dealt with the matter (necessarily in the absence of Mr Troll) they proposed to hear him then. There again, he said that his adviser, who himself apparently was only partially sighted or was otherwise disabled, felt that he could not be ready. So he did not attend that appeal hearing on the 12th February either. After the Governor's deliberations a letter was sent (at page 98) and he was made redundant.The Industrial Tribunal sat at the end of 1991. Mr Slevin of Counsel, who appeared before us today represented Mr Troll all through that very long hearing. Mrs Andrews, also of Counsel, represented the Authority. Then, as I say, there was this very long decision, and we now have to look and see - that decision being unfavourable to Mr Troll in the sense that the Tribunal found that he had been treated in every way fairly and that his employers had acted reasonably and fairly in dismissing him - we now have to look and see what criticisms are made of their decision. On his behalf Mr Slevin has narrowed matters down. He complains first of all that under the Education Reform Act 1988 , Mr Troll had a right to be heard at the meeting of the 24th January 1991. We are now looking at Schedule 3 of the Education Reform Act and it is wrong, with great respect to Mr Slevin, to say that he had a "right" be heard; or at any rate that is a somewhat misleading way of putting it. What Schedule 3 of the Act provides is this:
"8. (1)Where the governing body of any school to which section 44 of this Act for the time being applies determine - (a)that any person employed to work at the school should cease to work there;"
they shall do various things and subparagraph (7) says:
"The governing body of such a school shall make arrangements for affording to any person in respect of whom they propose to make any determination under sub-paragraph (1) above an opportunity of making representations with respect to the action they propose to take, including (if he so wishes) oral representations to such person or persons as the governing body may appoint for the purpose, and shall have regard to any representations made by him."
So what the Act provides is not that the person is to have a "right", what it provides is that the governing body is under a duty to give him an opportunity of making representations and, if he wishes, oral representations, in other words he is to be given an opportunity to attend in front of them. If he has been given that opportunity and takes it he has a right to be heard and a right to have his submissions considered. But it does not mean that he has an absolute right in the sense that he is entitled to insist that he sets the date; that the meeting must be fixed at a time when he says, and in circumstances which are entirely convenient to him. Here, Mr Troll said that the proposed date on the 24th January would be inconvenient to him for the reasons which I have mentioned. Anybody, whether a court or a tribunal or any other body of persons required by statute to carry out an inquiry or afford an opportunity to somebody, must conduct itself fairly and here, under paragraph 8(7) of the Schedule, the governing body was required to afford an opportunity and that of course means afford a fair opportunity and conduct themselves fairly. It does not mean that they have to conduct themselves just like a court, but they were required to give him this opportunity. It was not only Mr Troll's interest that had to be considered; there were all sorts of other important matters. Particularly in the profession of school teaching, time does not stand still, pupils have to be taught, the matter is very important and may be very urgent. Here there was no apparent haste, in any extreme sense, but there was certainly a great deal of pressure and the matter had been considered for many months with many consultations before this. Mr Troll had been repeatedly consulted about this question of redundancy. In those circumstances the Governors had to decide whether to fix another date, in effect to adjourn the matter, or whether to go ahead, and they for reasons which seemed right to them said that they would go ahead. There seems to us to be no reason why Mr Troll should not have attended before them. It may well have been true that he was not in a position to make himself completely ready. But there is no reason why he should not have attended and explained himself as well as he could, and explained what his difficulties were. He seems to have taken a very strong line and refused to attend at all, whether with a representative or otherwise. The same considerations apply to the further appointment which was fixed for the hearing on 12th February; again, Mr Troll seems to have taken a very strong line.That being the situation it was a matter for the Industrial Tribunal to consider whether there was any unfairness. It is for them to consider that matter, not us. The question for us is whether, the Tribunal having decided that all was conducted fairly and regularly, there is an error of law in their decision. What Mr Slevin says to us, as he has to, is that there is an error of law in the conclusion of the Tribunal on these points, that is to say that they should have held otherwise; that there was no other conclusion open to them than that Mr Troll was entitled to have these matters deferred, at any rate once.It is a matter first and foremost for the body which is charged with the statutory duty of giving the opportunity to say how it discharges that duty. If it obviously goes wrong it is a matter for the Industrial Tribunal to say so and to say that in that way the employer did not act fairly, and the statutory duty was not properly carried out; and of course, it is for us to say if we think that the Industrial Tribunal erred in law in not so finding. But that is going a long way down a difficult road for Mr Slevin. In our view, bearing in mind the dates to which our attention has been invited, it cannot be said that this Board of Governors was failing to carry out its duties by declining to adjourn the matter, in view of all the investigations which had taken place and in view of all the circumstances which they considered. The convenience of Mr Troll was, we are quite sure, one of the matters they considered. They declined to adjourn their proceedings. The Industrial Tribunal did not consider that that had led to unfairness and we do not feel able to say that any question of law arises from that which would enable us to interfere in any way.Then Mr Slevin, having dealt with those points, takes two further points. He refers to the Equal Opportunities Employment Policy, to which I have already referred, and he says:
"Tribunal misdirected itself on the application of the Policy after Local Management of Schools."
The Tribunal did indeed refer to these matters in paragraph 41 of their decision and they say:
"It appears to be the Applicant's case that a dismissal of a disabled person, in his case a blind man, is automatically in breach of the Respondent's equal opportunity policy and therefore automatically unfair. It also appears to be the Applicant's case that the Respondent has a no redundancy policy which is binding upon them and that by making the Applicant redundant they are therefore in breach of this policy. The Tribunal finds that it is a requirement that the Governing Body makes redundancies in schools when it is deemed to be necessary."
Well if that indeed was Mr Slevin's submission to the Tribunal then we have to say the Tribunal reached an entirely correct decision when they dismissed it. Mr Slevin tells us that that is not so, but he says that in the circumstances there was a breach of the policy in that greater allowances should have been made for the very difficult position in which Mr Troll found himself, the fact that he was, in effect, being selected for redundancy and that the Tribunal therefore should have said that there was a breach of the policy. It does not appear to us that that is made out at all. The facts were, if the evidence was accepted by the Tribunal - as it was - that the work available for Mr Troll had not merely diminished to use the language of redundancy, but had ceased or was expected to cease. The Authority had already considered whether he could be seconded or whether he could be transferred to another department of the school. There does not appear to us to be any error of law in the findings of the Tribunal on this point.Then Mr Slevin has, in his skeleton argument, said:

"Governors warned that they could not present a deficit budget"

that is to say that the money had to be there. That seems to us not to be a criticism of the Governors or of those who were advising them or of the Industrial Tribunal's decision. It does not appear to us that such matters could affect the questions which were before the Tribunal, or affect their decision.Then there was the question of secondment. The Tribunal dealt with that at paragraph 31 among other places. They say that Mr Beadling at the Marlborough Centre considered Mr Troll's position, Mr Troll discussed it with him and there was apparently a conflict of evidence between the two men. Mr Beadling gave evidence:
"He said that they did not have a job to offer at that time. [October 1990] He said that he assured the Applicant that if he were to come to the Marlborough Centre he would be fully occupied. They would be able to find things for him to do. They had a need which would occupy some 10 hours but this could in due course be extended to 40 hours."
That was in effect the offer made to Mr Troll and that was apparently rejected by him.The Tribunal preferred Mr Beadling's evidence to that of Mr Troll and we cannot interfere with that. Mr Slevin referred us to the case of Elliot v. Richard Stump Ltd [1987] IRLR 215. That case is concerned with the right to a trial period given by statute, and we do not think with great respect that that decision carries the matter any further.Then finally, and this was a matter which caused us some concern, Mr Slevin referred to the Disabled Persons (Employment) Act 1944 and to the case of Hobson v. G E C Telecommunications Ltd [1985] ICR 777. Under Section 9(5) of that Act it is provided:
"A person to whom this section applies who for the time being has in his employment a person registered as handicapped by disablement shall not, unless he has reasonable cause for doing so, discontinue the employment of that person, if immediately after the discontinuance the number of persons so registered in the employment of the person to whom this section applies (excluding persons employed by him in an employment of a class then designated under section twelve of this Act) would be less than his quota:"
and Mr Slevin has told us, and we of course accept, that that applied to these employers. He complained that Section 9(5) had not been complied with.In the case of Hobson it is interesting to observe that the facts were completely different from the present. There it was a case of a large number of men who were to be dismissed and one of those chosen was a man who was disabled and this Tribunal said that before an employer dismissed a person in those circumstances he must have special regard to his personal circumstances. This Tribunal cited another case, Seymour v. British Airways Board [1983] ICR 148; [1983] IRLR 55. It is sufficient to quote the second paragraph of the holding in [1983] IRLR 55:
"A person who is both disabled and registered as such is entitled to special consideration by his employer. That special consideration includes looking at his personal circumstances before deciding to dismiss him. However, the extent to which a registered disabled person should be given preference over an unregistered but similarly disabled one or over an able bodied person when redundancies are necessary must be adjudged by the standard of reasonableness in accordance with the statutory provisions."
That, therefore, gave us cause for considerable concern. It is a statutory requirement that such a person should be given special consideration. But it is to be noted that in that case the disabled man was treated just like the others on the basis of capability and the special consideration which should have been given to him was overlooked. This Tribunal said in those circumstances that that was an error and a breach of the provisions of the Statute.Here, of course, the case is quite different. Mr Troll was unique and was treated as unique throughout. His special difficulties; his special needs; his special abilities; all were at the forefront of discussions which had been going on for months, indeed for the better part of a year, and the Tribunal carefully considered that matter in paragraph 37 of their decision:
"Section 5 of the Disabled Persons (Employment) Act 1944 states `a person to whom this section applies who for the time being has in his employment a person registered as handicapped by disablement shall not, unless he has reasonable cause for doing so, discontinue the employment of that person. . ."
and they quote the rest of that Section.
" If we have correctly understood Mr Slevin's submissions he contends that the Respondent has a legal obligation to retain the employment of all registered disabled people where the dismissal of such a person would result in the Respondents falling below the statutory 3% requirement. We do not accept this as a correct interpretation of the requirement of the Act. We find as a fact that the reason for dismissing the Applicant was redundancy and that the Respondent had reasonable cause therefore for dismissing the Applicant despite his disability"
So there this Industrial Tribunal found expressly that there had been no breach of Section 9(5).We repeatedly asked Mr Slevin what were the points of law involved here. Mr Slevin, very kindly and indeed very valiantly, took us through a great many of the facts, though certainly not all of them. He was not able to indicate anything to us which, apart from the matters we have mentioned, appeared to indicate any point of law on which we could possibly fault the findings of this Industrial Tribunal. The investigation of all the very difficult matters which arose and the very important issues raised by Mr Slevin and by Mr Troll was a matter for this Industrial Tribunal which took no less than six days over the hearing and whose reasons extend over more than twelve pages. Having all read those reasons they appear to us to show that this Industrial Tribunal applied itself with great care to its task. The Tribunal said at the end:
"We find that the decision to make the Applicant redundant was reasonable in the circumstances of this case. He was apprised of the position as soon as it appeared that a redundancy situation might arise. He was consulted, advised and assisted at all stages of the proceedings. Secondment was actively pursued once redundancy was accepted. We find that the Respondent acted reasonably in reaching the decision that no alternative employment could be found for the Applicant. Indeed, we find that the Respondent endeavoured to satisfy the Applicant's demands and went out of their way to try to re-deploy him. We have the highest praise for the way in which the Respondent carried out all its obligations."
One is very glad to read that in a case which otherwise fills one with sympathy and regret for the position in which Mr Troll finds himself.I am very conscious that in giving our reasons, I have given them in an extempore way and I have certainly not set out the facts of this case, as they are set out patiently in the very long decision of the Industrial Tribunal. If anybody is interested, on behalf of any association or on behalf of the Press, in reporting this case, they will please note that what we have done is to decide that there is here no point of law on which we can possibly intervene in this decision of the Tribunal. Under Section 136 of the Employment Protection (Consolidation) Act 1978 we are required by Parliament only to consider matters of law. We have no jurisdiction to review the facts in any way whatever. We cannot interfere with decisions of Tribunals on fact; as Lord Denning said "they are entrusted by Parliament with sole responsibility for the facts". As I say, if any person wishes to know the facts of this case and to see the very thorough way in which it was dealt with both by the Council and by the Industrial Tribunal they could not do better than read the decision of the Tribunal where all these matters are patiently, carefully and accurately set out. Since we can discover no point of law, in spite of Mr Slevin's assistance, we are bound to dismiss this appeal and that is all we can usefully say about the matter.We make no order for costs.