Wiggins v Breckenborough School [1994] UKEAT 533_94_0610

EAT
Wiggins v Breckenborough School
[1994] UKEAT 533_94_0610 · 1994-10-06

JUDGE HULL QC :

This case comes into our list under our practice direction for a preliminary hearing, the object being to see whether we can find a fairly arguable point of law. We have to bear in mind that we are not Judges of fact. We cannot go into facts, however interesting or compelling they may appear to be. Parliament has confined us to seeing whether there is any point of law; substantially therefore whether there is any error of law by the Industrial Tribunal, which is the sole judge of fact.Mr Wiggins was deputy head master of Breckenborough school and he was made redundant. I do not need to go into the painful details. Clearly a decision of that sort could not be taken lightly and was not taken lightly. When the school became satisfied that their procedure could be criticised they started all over again.Mr Wiggins makes now two complaints. He made in his Notice of Appeal four points. The Tribunal spent no less than 3 days investigating the case. It was not suggested to them that the school had acted in bad faith, that anybody "had it in for Mr Wiggins" or anything of that sort but it was nonetheless suggested that his selection for redundancy was unfair. Obviously in the case of such a distinguished a person as the deputy head master the assessment of the criteria for redundancy would be a matter which would be manifestly for the school and for their experienced educationalists, the governors and so on; that would be the position but the Tribunal would wish to see whether proper consultation had taken place; whether the criteria were proper objective ones so far as they could be; whether they had been followed; adjectival matters of that sort and the Tribunal, after spending 3 days on the hearing and complaining to some extent that they had had to go into a great deal of detail, did conclude that the complaint of unfair dismissal which Mr Wiggins made was not made out and now he appeals to us.We are very grateful to Mr Lindon, appearing under the Free Representation Scheme, for putting the matter so clearly to us and with his assistance the points which are put before us are narrowed to two out of the four which are made by Mr Wiggins in his Notice of Appeal. The first of them is these. He puts it like this himself:
"On the 21st July I was informed of my dismissal with effect from 31st December 1993 (Effective date of termination). I was paid in lieu of notice between 31st August and the 31st December."
He then on 31 August, or probably earlier, left the school and no doubt was engaged in intelligent and useful activity elsewhere. His complaint is this:
"The Chairman ruled that no evidence subsequent to the decision being made could be submitted. I was therefore unable to cross examine or give evidence of relevant events up to the 31st December 1993."
It has been explained to us that the relevant events which Mr Wiggins wished to lay before the Tribunal were that at the beginning of the new term two part-time employees were engaged by the school; a care worker and a part-time teacher. We have no knowledge, of course, of what the salaries or exact duties of those people were. On the face of it it might be said to be a rather curious suggestion that they were in some way doing work which should have been offered to Mr Wiggins, but that is what he says and we look to see what the Chairman says about that. The Chairman received a letter from the Employment Appeal Tribunal and with regard to this ground he said as follows:
"There had been no suggestion by Mr Wiggins that any personal antipathy was involved in the choice of him to be made redundant. In fact it was clear that he was on extremely friendly terms with the headmaster who was deeply involved in the decision making. Mr Wiggins had made considerable efforts to try to convince the authorities that there were other viable alternatives. It was clear that there was no great change in the financial position of the school after Mr Wiggins dismissal nor was there likely to be. Consequently it seemed pointless going beyond that date if he was not trying to prove bad faith by showing that the redundancy had been created to get rid of him."
Our attention has been invited by Mr Lindon to Stacey v Babcock Power Ltd [1986] ICR 221, a case in this Appeal Tribunal where an employee under notice of dismissal for redundancy, which was fair when issued, was held to be unfairly dismissed because during that notice period there was an upturn in trade and new recruits were employed rather than the employee being offered new employment. On the face of it the facts were very different, but nonetheless it may well be that events occurring subsequent to notice being given are matters which should be considered by the employer, in fairness. But it does not appear that this was explained to the Chairman. This as I say was a three day hearing; on the face of it a very long hearing, bearing in mind the limited scope of the enquiry which the Tribunal was called on to make.We have no doubt that in the course of a hearing of this length any Chairman would wish to limit matters in a sensible way; would try to get his members and himself in a position to concentrate on the true issues in the case and to exclude so far as they could, anything which appeared to them to be irrelevant. We entirely accept that the Chairman indicated, as indeed he did in his letter to this Tribunal, that on the face of it this appeared to be irrelevant; but he was not told exactly why this was relevant. We appreciate the difficulty for a litigant in person, if I may call Mr Wiggins that, but it does seem to us that if the Chairman says "this does seem to be irrelevant" (after all the Chairman is speaking for himself and his colleagues, who would soon say if they thought differently) the person concerned should be prepared to explain exactly why it was relevant. Bearing in mind that Mr Wiggins had, as I said, apparently taken himself off, it might seem something like a cruel joke to ring or write to him and say - "By the way we have taken on a part time care worker and a part time teacher, or we are proposing to do so, do you wish to be considered for either post or do you wish to have your dismissal reconsidered?" That would on the face of it be very strange.We are concerned to see whether there is any error of law here. It does not appear to us from what has been said strongly but very fairly by Mr Lindon that this could possibly in the circumstances, amount to an error of law. Courts and Tribunals throughout the country are being enjoined as a matter of commonsense and humanity to try to keep their enquiries within reasonable bounds and to try to avoid the interminable hearings which have more injustice than justice to them when the true interests of the parties are considered. Here it appears to us that nothing more than an indication was given by the Chairman. They would have had, of course, to have considered the relevance of the evidence if it was put before them. It appears to us that they would probably have concluded that it did not take the matter any further but there were not put before them the reasons why they should receive this evidence and the reaction of the Chairman, and no doubt of his members too, seems to us in the circumstances to be a proper one. The result may not have been perfection but it certainly does not amount to an error of law.The second matter which is put before us is that there was a grievance procedure: and the way in which it is put by the Appellant in his Notice of Appeal is this:"there was no evidence submitted by the respondents or myself, nor was it the case, that I had been told "that that procedure did not apply to an appeal against dismissal". No mention of the grievance procedure was made by any of the respondent's witnesses during the hearing. [Of course they could have been asked about it.]I would submit that failure to follow a contractual obligation did make the procedure unfair. This grievance procedure was going to be followed the first time I was declared redundant. Furthermore there were factors, including the manner of dismissal, which could not have been brought up during the consultations."It is fairly clear that in the course of the school's decision making process the grievance procedure was in fact replaced by something very much more thorough. There was a consultation meeting between the headmaster, the Chairman of the Board of Governors and the Applicant at which he was free to put forward any alternative suggestions and to argue his case to the full. At his request he then had a separate meeting with the Treasurer so that he could argue the pros and cons of redundancy as opposed to other methods of saving money and again he was able to put forward his point of view.He submitted a letter accompanied by a six page memorandum to the Board of Governors prior to his personal hearing with the board on 19 July and again at that hearing he was able to put forward any arguments he wished. Those arguments were the arguments that were heard by the Tribunal, though he said he felt able to say a little more to the Tribunal than he could say to the board. Having heard all that, the board confirmed his redundancy. One wonders what more could conceivably have been involved in a grievance procedure. Mr Lindon says, taking this as a subsidiary point, that Mr Wiggins would have wished to make use of the grievance procedure to refer to the position of the part time care worker and part time teacher.It may be so but assuming, as was assumed by everybody, and no doubt justly, that this was a consulation in entirely good faith, it does seem that consultation on an almost extravagant scale was engaged in here. Mr Wiggins, in accordance with his position as deputy headmaster, had every possible opportunity to suggest that the decision which was taken was a mistaken one; that it should be reviewed; and that somebody else should be chosen for redundancy or that the redundancy was unnecessary. All these matters of course are the object of consultation. We do not think, in spite of what is alleged here, that this ground either shows any error of law on the part of the Tribunal.Tribunal hearings are intended to be, so far as possible, short and to the point; so far as possible informal, speedy and of course just. It appears to us that this Tribunal did conduct itself in that way. They said they had had to listen to a very great deal of detail. They took three days to do it and they reached a decision which we have read, each of us, and which appears to each of us to be a very just appraisal of what was laid before them and a decision which as a matter of law cannot be criticised. It is of course always possible to say that a different Tribunal might have taken a different view or proceeded in a different way. When people are asked to proceed informally they will proceed in a way (to some extent) which is their own way of doing things, but we cannot find in that any error of law here.Since no arguable point of law is made out to us we dismiss the appeal at this stage and do not allow it to go on to a full hearing.