Rogers v Poltair School & Anor [1994] UKEAT 370_93_2309

EAT
Rogers v Poltair School & Anor
[1994] UKEAT 370_93_2309 · 1994-09-23
MR JUSTICE FRENCH : This is an appeal from an Industrial Tribunal sitting at Truro. The hearing took place on 18 February and 19 March 1993 and the decision was sent to the parties on 31 March 1993. That decision was:
"The unanimous decision of the tribunal is that the applicant was dismissed by reason of redundancy and that her dismissal was unfair.
The question of compensation is referred to the parties to settle by agreement, but failing such agreement within 30 days of this decision being promulgated, will be determined by the tribunal at a resumed hearing."The Appellant does not, for obvious reasons, contest the finding that she was dismissed by reason of redundancy or that the dismissal was unfair. What she does contest in this appeal is the Industrial Tribunal's decision that the award referred to in paragraph 20 of the reasons for decision should properly be confined to her prospect of being appointed in effect to the post of history teaching at Poltair School and that that prospect was properly assessed as being as little as 20 percent.The Industrial Tribunal concluded their decision by saying:
"We accept the suggestion by Counsel for the applicant that it be left to the parties to seek to reach agreement on the amount of compensation ... paid to the applicant on this basis [i.e., 20 per cent]. But, in the absence of such agreement, we will determine the amount after hearing both parties at a resumed hearing.."
Having regard to the launching of this appeal, it is no surprise that no agreement regarding compensation nor any assessment by the Tribunal has taken place. The Appellant complains, first, that the Industrial Tribunal failed to give reasons for its decision in important respects. Secondly, that in deciding that if there had been, contrary to their findings, proper consultation regarding the proposed redundancy, the prospect of the Appellant being appointed to the post of history teacher would have been as low as the 20 percent which the Industrial Tribunal found. Thirdly, that the Industrial Tribunal failed properly to apply the correct burden of proof in relation to whether or not proper consultation would have made a difference to the Appellant being dismissed as she was.The background facts are that the Appellant was employed by the Respondents under a series of fixed-term contracts from 28 October 1985 to 31 August 1992. The Respondents conceded that she was dismissed on 31 August 1992 by reason of non-renewal of her contract. The Industrial Tribunal found that there was a failure to adopt the specific consultation process which should have been invoked in the circumstances, including a duty to notify the Appellant of the appeals procedure. The Industrial Tribunal did not mince their words in this regard.Paragraphs 3 to 10 inclusive of the reasons for decision read as follows and we incorporate them in this judgment without solemnly reading them out here and now:
"3. The applicant, who had obtained a Second Class Honours Degree in French, was employed at Poltair School with the job title of Part-time Teacher of French/History, and was one of two part-time teachers in the languages cluster. The Governors wished the school to provide German as a second language, which the applicant was not qualified to teach, and therefore decided to seek to appoint a bilingual teacher on a full-time basis.
4. During 1991 this appointment was advertised and the Headmaster and the Head of Languages both discussed it on a number of occasions with the applicant, specifically advising her that the appointment of a full-time bilingual teacher would mean that two part-time French teachers would no longer be required. In the event, no appointment was made in response to that first advertisement and the applicant was given another fixed term contract to expire on 31st August 1992.5. The appointment was re-advertised in 1992, prior to which the Headmaster met formally with the applicant and other part-time French language teacher, to discuss the implications for them if the appointment was made. He pointed out that there would then only be a requirement for one part-time teacher in the languages cluster to be responsible for remedial teaching. The other part-time teacher who had shorter service than the applicant specialised in remedial teaching and the Headmaster obtained the clear impression from the applicant that she would not wish to be considered for a part-time post at that level.6. In March 1992 a bilingual teacher was appointed. The applicant was immediately told by the Head of Languages that the appointment had been made and that in consequence she would not be re-appointed in September 1992. Subsequently, the Headmaster also advised her of this consequence and discussed with her the possibilities of obtaining another teaching post elsewhere.7. In June the applicant made a number of written applications to other schools in the country for a new part-time teaching post, but was unsuccessful. The Headmaster also tried unsuccessfully to find her a post at the local sixth form college. The various discussions between the applicant and the Headmaster at this time were entirely informal and the procedures laid down in the Handbook were never formally activated. Nevertheless, the applicant clearly understood that her contract would not be renewed on its expiry.8. It was the common practice at schools in the county to determine by Easter in each year their staff requirements for the following academic year and therefore identify vacancies for which they would need to recruit. It was also the practice of the schools to notify the Education Authority of vacancies and for the Education Authority to circulate to them details of staff known to it to be available. In the applicant's case, the Education Authority was not notified until the end of July 1992 that the applicant would be available for any vacancy, and did not attempt to find her an alternative post until after that date. However, earlier notification would have been unlikely to have enhanced the prospects of an alternative post being found for the applicant within another school, since teachers were being laid off throughout the county.9. The applicant's appointment at Poltair school duly expired at the end of August 1992 and since that date she has been unemployed. She received no formal letter of termination of her appointment. From the Governor's viewpoint, the appointment ended consequent upon the expiry of her temporary contract on 31 August 1992. However, the Education Authority perceived the reason to be redundancy [since it was clearly not due to falling numbers on the roll which was the expressed reason in her contract for the temporary nature of the applicant's appointment] and the applicant was subsequently paid a redundancy payment.10. In November 1992 the applicant presented a complaint of unfair dismissal on the grounds that she did not consider herself to have been redundant; and that the respondent had not acted reasonably in dismissing her for redundancy, due to lack of consultation; lack of fair and objective selection criteria; and failure to take reasonable steps to find her alternative employment. The applicant was not formally advised that she had any right of appeal to the Governors and in the event, exercised no such right."This sets out the further factual matrix sufficiently for present purposes.The grounds of appeal do not pursue the allegation relied on in the Industrial Tribunal that she was not, in fact, redundant nor do the Respondents seek to challenge the finding that the Appellant was unfairly dismissed. The appeal relates solely to the quantum of the award. Having found the dismissal to have been unfair, the Industrial Tribunal then addressed the question of compensation. At paragraphs 19 and 20 of their reasons, the Industrial Tribunal say:19. "The key objective of the consultation process is to enable the possibility of alternative employment to be fully explored. In this regard, Counsel for the applicant submitted that there were as many as seven options which a reasonable employer would have considered in similar circumstances. We do not consider it necessary to review each of those options in detail, but suffice to say that we do not regard most of them to have been either available or appropriate, given the evidence present to us. There was, however, one option which seems to us to have been both available and appropriate, and that was to consider the applicant for the vacant post of part-time History teacher at Poltair School. This was taken up from 1 September 1992 by a person who had previously held a temporary post in the Geography Department to provide cover for one of the permanent members of staff who was on maternity leave. As stated in the above finding of facts, the applicant's job title was Part-time Teacher of French/History and in practice, some 25% of her time was spent in teaching History. The vacant part-time History post was one for which the applicant would have applied if she had known about it, and it appears that she had previously enjoyed a good working relationship with the Head of History and that he would have been pleased to have her on his staff. While we accept that it is the respondents' prerogative to appoint the right person to the right job, we received no satisfactory evidence from the first respondent that the applicant was ever considered for the post. When questioned about the matter, the Headmaster could only state that she was `presumably' considered by the team leaders. However, it was not evident to us that this [option] was ever properly considered by the Headmaster and the Governors who were quite clearly charged with the responsibility of exploring alternative employment opportunities by the terms of the redundancy procedures in the Handbook.20. If there had been proper consultation with the applicant, in accordance with those procedures, we cannot exclude the possibility that the applicant might have persuaded the Headmaster and/or the Governors that she should be appointed to the part-time History post. Certainly they would have been obliged to give serious consideration to her suitability for the post and, in the absence of any evidence to the contrary, we think that there must have been some prospect of her being appointed. We would assess that prospect at 20%."I omit paragraph 21. Paragraph 22 reads:
"Accordingly, and for the procedural reasons stated above, it is the unanimous decision of the tribunal that the dismissal of the applicant by reason of redundancy was unfair. It is likely that the basic award to which the applicant would be entitled will be reduced to `nil' by the redundancy payment made to her but, in our judgement, she is also entitled to a compensatory award. That compensatory award, having been assessed in accordance with the normal principles, should be reduced to 20% of the amount so assessed, to reflect our view that there was a 20% prospect of her being appointed to the part-time History post, if proper consultation had taken place."
The only grounds of appeal to which we feel it necessary to refer are those to be found at paragraphs 7(1)(b) to (e) inclusive of the grounds of appeal and here, perhaps again, I might incorporate them by reference without actually reading them out:
"(b) There was evidence before the Industrial Tribunal that supported the Appellant's contention that there were at least 7 possible options which could and should have been explored, any one of which might have led to the Appellant being retained in employment at the School or offered alternative employment in another school operated by the Second Respondents; (c) The Industrial Tribunal, in dealing with the various options put before them concluded that: (i) it was not necessary to review each of those options in any detail;
(ii) that most of them were not either available or appropriate.(d) In relation to 6 of the possible options, the Industrial Tribunal gave no reasons as to why they were not available and/or not appropriate; (e) In failing to give reasons for the above, the Industrial Tribunal failed, contrary to Regulation 9 of the Industrial Tribunal (Rules of Procedure) Regulations 1985, to give reasons for its decisions."The complaint that the reasons for decision are inadequate in the respects complained of is one which has given us much ground for thought and anxiety. The Respondents submit that if one looks at the very full note of evidence taken by the Chairman (and, indeed, we congratulate the Chairman on their fullness and clarity) one can find grounds to support the decisions made relating to the six options which might have led to the Appellant retaining her employment at Poltair School. The Respondents draw our attention to passages in the reasons elsewhere than in paragraphs 19-20 and 22, from which reasons may be inferred as to why the Industrial Tribunal should have rejected at least certain of the six other options but the key question for us is whether we are able to conclude that the decision and the reasons given tell the Appellant why the Industrial Tribunal excluded all of the six options from consideration in deciding the basis of compensation. They say simply at paragraph 19:
"We do not consider it necessary to review each of those options in detail, but suffice to say that we do not regard most of them to have been either available or appropriate, given the evidence presented to us."
In our judgment, they do not tell the Appellant why she lost a right to an award as regards those six options. We refer, again without citing, to the well-known case of Meek v City of Birmingham . This appeal succeeds in relation to the six options accordingly.Reasons were given as is apparent from paragraph 19 for awarding 20 percent of compensation, which would otherwise be payable, for loss of the chance of a part-time History post at the Poltair School and we see no ground for disturbing that finding.Quite clearly, as the Tribunal recommended, the sensible course would be for the parties to seek to reach agreement on the amount of compensation to be paid to the Applicant but, failing such agreement, this matter must go back to an Industrial Tribunal for them to determine in the light of our judgment what the compensation should be. It may be that one or both parties have some observations to make consequentially about that.

(None were made.)

What we order is that the appeal is allowed, that the matter goes back to the same Industrial Tribunal for them to determine the level of compensation, if any, for loss of the six options and I add "if any" because if they come to the conclusion on reconsideration that any individual option was not a real option, then they are entitled to make a nominal award in that regard. I appreciate that I have not heard argument from either of you as to that last matter. I think I should give you an opportunity to accept or reject.

(Both sides accepted.)