Severn v Ponteland Club & Institute Ltd [1994] UKEAT 411_92_2706

EAT
Severn v Ponteland Club & Institute Ltd
[1994] UKEAT 411_92_2706 · 1994-06-27
MR JUSTICE MORISON: This is an appeal against the unanimous rejection of Mrs Severn's complaint of unfair dismissal which she presented to an Industrial Tribunal and which was heard and determined by such a Tribunal contained in a decision dated the 11 May 1992 and sent to the parties on that date.The background facts upon which this appeal is based may be very shortly stated. Mrs Severn is married to a Mr John James Severn and they were appointed under a joint contract by the Ponteland Club and Institute Limited as, respectively, steward of the Club and his spouse. She was appointed a member of the bar staff specifically to assist her husband who was appointed as the steward. In the contract there was provision for her hours of work and there was a further provision to the effect that since the appointment of the steward and his spouse is the joint appointment of a husband and wife team, notice given by either the steward or his spouse, shall terminate this agreement and hence terminate both their employments.After they had been appointed and provided for the better performance of their duties with residential occupation, a problem arose in connection with the way in which the wages were administered and paid by the steward who took responsibility for this matter. The precise details relating to this problem are, in our judgment, not relevant to the appeal. What the Industrial Tribunal have found is that when the employers dismissed Mr Severn for his alleged gross misconduct the employers had acted unfairly in treating his misconduct as a sufficient reason for the dismissal in all the circumstances, but found that he was 75% to blame for his own dismissal.They criticised him for the way in which he had disregarded his employers instructions in relation to the way in which pay was administered; that is using the correct documents and filling in the time sheets correctly. Mr Severn's dismissal was effected, according to the Tribunal, in a way which made the dismissal unfair. There was an appeal hearing on the 15 October. His appeal was discussed at the meeting on the 20 October and the appeal was dismissed on that date. They criticised the way in which the dismissal was carried out for that reason and also because a reasonable employer would not have left Mr Severn in a state of ignorance and uncertainty for a period of ten days between the time when the matter originally came to light and the time when they purported to dismiss him.In relation to Mrs Severn the Industrial Tribunal having found that there was a joint appointment and that the dismissal of Mr Severn had the effect of dismissing Mrs Severn, proceeded to consider her complaint of unfair dismissal. They set out their findings in paragraph 37 of their decision:
"So far as Mrs Severn's application is concerned, we find that the reason for her dismissal was that, as she was jointly employed with Mr Severn to assist him in his duties as Steward it would have been impracticable for the respondents to continue to employ her after Mr Severn had been dismissed. That is some other substantial reason within section 57(1(b) of the Employment Protection (Consolidation) Act 1978. In reaching that decision we were guided by a decision of the Scottish EAT in Killman vGJ Oram [1983] IRLR 433 . There it was held, in similar circumstances, that the dismissal of an assisting wife was fair, notwithstanding the fact that the dismissal of the husband was held to be unfair. We find that, here, the reason for the dismissal of Mrs Severn did not, in any way, refer to the fairness or otherwise of the Mr Severn's dismissal. It referred to the factual matter of whether or not it was practicable for her employment to continue. As it was plainly not practicable, we take the view that the respondents could not be said to be acting unreasonably in terminating Mrs Severn's employment. As no allegations of misconduct or incompetence have been raised by the respondents against Mrs Severn we can understand that the decision may appear harsh, but we repeat the principle already stated in connection with Mr Severn's dismissal that the test to be applied by the Tribunal is the reasonableness or otherwise of the employer's conduct."
Essentially, what they have said in paragraph 37 is that as she was jointly employed with Mr Severn, to assist him in his duties as steward, it would have been impracticable for the Respondents to continue to employ her after he had been dismissed. They then concluded that that was some other substantial reason for the dismissal within the meaning of Section 57(1)(b) of the 1978 Act. They then referred to the decision of the Employment Appeal Tribunal held in Scotland in Kellman vGJ Oram [1983] IRLR 433 and they found that the reason for the dismissal of Mrs Severn did not in any way refer to the fairness or otherwise of Mr Severn's dismissal, it referred to the factual matter of whether or not it was practicable for her employment to continue after he had been dismissed.Having found what the reason was for the dismissal, namely, it was no longer practicable for her to be employed (note employed generally and not just in the position as assisting steward) they then had to apply their mind as to whether the employers had satisfied the burden upon them in relation to Section 57(3) of the Act, which is simply the test of justice and equity having regard to all the circumstances. They had applied this test to the dismissal of Mr Severn and have accurately put it this way:
"It is not even a question of whether the Tribunal thinks the decision to dismiss was right or wrong. The question is whether a reasonable employer, in all the circumstances could have taken the decision to dismiss."
To that extent, they have correctly directed themselves as to the appropriate test to apply to the dismissal of Mrs Severn. It is to be noted that the reason for her dismissal was fundamentally different from the reason for his dismissal. His dismissal related to conduct. Her dismissal was for some other substantial reason as I have already indicated. Having directed themselves correctly as to the operation of Section 57(3) they say:
"As it was plainly not practicable, [that is for her employment to continue] we take the view that the respondents could not be said to be acting unreasonably in terminating Mrs Severn's employment. As no allegations of misconduct or incompetence have been raised by the respondents against Mrs Severn we can understand that the decision may appear harsh, but we repeat the principle already stated in connection with Mr Severn's dismissal that the test to be applied by the Tribunal is the reasonableness or otherwise of the employer's conduct."
As we have indicated, it seems to us that they have correctly directed themselves as to the proper issue. It is said in support of the appeal on behalf of Mrs Severn that her dismissal followed from Mr Severn's dismissal and the Tribunal should have taken into account in accessing the fairness of her dismissal the fact that they had already found that his dismissal had been unfairly carried out. It seems to us that that is a submission in itself which cannot be sustained. The question in relation to her dismissal is a separate matter from the question in relation to his dismissal. Whilst it is true that a trigger for her dismissal was his dismissal, as the Tribunal have correctly observed on the facts of this case it was not the the fairness of his dismissal, or otherwise, which affected the reason for the dismissal, it was simply the fact of his dismissal.Therefore it seems to us that that is not a point which we should entertain. It is then said that in any event there is an indication from the passage, which I have already read out, that the Tribunal in effect just simply refused to apply the criteria which are normally applied when a Tribunal asks the question whether a dismissal was fair under Section 57(3) and in a sense prejudged that issue by treating the decision of Kellman v Oram as binding authority for the proposition that where one party to a joint contract had had his, or her, contract terminated then it would be automatically fair for the employer to terminate that of the other contracting party.That is not, in our view, what this Tribunal has done, nor would it have been appropriate for them to have done so if they had. If there is a feeling going around Industrial Tribunals that in every case where there is joint employment of the sort here that termination of his contract will automatically lead to the fair termination of her contract, or vice versa, that impression must be dispelled. As has been correctly observed by Mrs Cleave, on behalf of Mrs Severn in this case, everybody is entitled not to be unfairly dismissed. It is an individual right which is given to every employee as much to Mrs Severn as to Mr Severn.What I think is missed in this case, if I may say so with respect by Mrs Cleave, is the significance of the difference between the reasons why he was dismissed and why she was dismissed. It is argued on her behalf that the Industrial Tribunal should have asked itself the question, whether for example, there was alternative work available for Mrs Severn, such as temporary work within the bar, which she had been doing before. It seems to us that those were all matters for the Industrial Tribunal to take into account and we have no reason to believe that in this short paragraph they have not fully considered the practicabilities of her continuing in any position at this Club.Accordingly, we do not think that there is anything in the argument which has been raised before us that there has been a lack of application of the principles to be applied by Industrial Tribunals under Section 57(3). They will have taken into account that she herself had not been consulted about the dismissal but it seems to us that it is correct, as Mr Cape submitted, that whilst prior consultation will almost always be expected of a reasonably fair employer, that is not invariably the case and there is no rule of law to that effect; Polkey accepts there may be exceptional circumstances in which consultation is entirely hollow and in those circumstances an employer cannot be faulted for not going through an empty procedure.Therefore, it seems to us, that there is nothing in the appeal which has been raised before us, either in principle, or in law, and we would dismiss the appeal. Before we leave this matter we should say that it is our present view, although the point has not been fully argued, that in a case such as this, where the second dismissal consequent on the first is held to be fair, it may be possible for the Tribunal when assessing compensation for the unfair dismissal, that is of the partner, to include within such compensation, the loss of the income from the wife, because that was a matter which was foreseeable where there is a joint contract and the loss to the family unit is the loss to him which he is entitled to recover by way of compensation in appropriate cases.We have come to the conclusion that we should dismiss this appeal for the reasons I have attempted to give on our behalf.