Salford Magistrates Court Committee v Slack [1996] UKEAT 257_95_1005

EAT
Salford Magistrates Court Committee v Slack
[1996] UKEAT 257_95_1005 · 1996-05-10
For the Appellants MR J HAND Q.C.

Davies Wallis Foyster

Solicitors

38 Peter Street

Manchester

M2 5GB

For the Respondent MR J BURKE Q.C.

and MISS L CHUDLEIGH

(of Counsel)

Irwin Mitchell

Solicitors

West Brow

9 Arkwright Road

Hampstead

London NW3 6AB

MR JUSTICE BUTTERFIELD : In 1975 Peter Slack, the respondent, took up employment as an assistant at the Manchester City Magistrates Court. He was promoted from time to time, until in May 1987 he was appointed Deputy Chief Cashier at the Eccles Magistrates Court. In June 1989 he was promoted again to the post of Chief Cashier at the Justices' Clerks office for the Eccles Magistrates Court.In 1993 it was decided that the Eccles Magistrates Court should be closed and the business of the court transferred to an enlarged Salford Magistrates Court. This merger took place in April 1994 at which time the respondent's post ceased to exist. Before the merger each court had a Chief Cashier and a Deputy Cashier. After the merger it was proposed that the functions of the Chief Cashier and the Deputy should be designated as team leader and deputy team leader of a new section to be known as the Finance and Enforcement Section. Some of the duties and responsibilities of the team leader and his deputy were identical to those of Chief Cashier and Deputy Cashier, but there were some differences.After consultation with the union and the existing staff, it was decided that all staff should apply for posts in the new expanded Salford Court for which they wished to be considered. Selection was to be made by a management team, consisting of senior employees of both existing courts after interview by the team of each candidate.The respondent applied for the post of team leader in the new Finance and Enforcement Section and was interviewed on 13th December 1993. He was informed on 22nd December 1993 by Mr McNeill the Magistrates Clerk to both the Eccles and the Salford courts that his application was unsuccessful.Mr McNeill offered the respondent the position of Clerical Assistant, dealing with payments, enquiries and enforcement in the new Family Section. It was in effect the job of cashier. That post carried a salary of £9,768 per annum, as against the respondent's then salary of about £16,800 per annum, a cut of about 40%. The level of responsibilities were much lower than the respondent's existing post.The respondent asked again to be considered for both the post of team leader and deputy team leader in the Finance and Enforcement Section. Eventually Mr McNeill informed the respondent that he would not be considered for either post because he did not meet the specified criteria for appointment. Further the respondent was told that if he did not accept the position of clerical assistant which had been offered to him, no payment of compensation would be made.On 31st January 1994, the respondent rejected the offer made and explained why. He wrote:

"My reasons for rejecting your offer as unsuitable are:-

1. My status is below what I am accustomed to, and it would damage my career prospects to work at a lower grade such as this.2. The eventual cut in salary is unacceptable.[ We interpose that the new post carried with it a protection of the respondent's existing salary for a period of three years ]3. The duties associated with this position are minor in comparison with my current job responsibilities.4. I would be in a position subordinate to individuals whom I have trained and developed.I consider that I am entitled to compensation under employment legislation and the 1978 regulations, and in the light of your comments in your letter, would ask for clarification as to why you consider the offer suitable alternative employment, given my comments above."Mr McNeill replied on 4th February 1994, asserting that the post offered to the respondent was suitable alternative employment that the respondent had unreasonably declined the offer, and accordingly terminated the respondent's employment, giving him 12 weeks notice.On 21st April 1994, the respondent's solicitors applied in writing for re-settlement and long-term compensation under the provisions of the Justice of the Peace Act 1949 (Compensation) Regulations 1978 hereinafter called in the Regulations. The determining authority for the appellants, the Magistrates Court Committee, refused the respondent's request for either sort of compensation. The respondent thereupon made application to the Industrial Tribunal complaining of unfair dismissal and seeking re-settlement and long-term compensation under the Regulations.The appellant contended before the tribunal that the respondent was not entitled to any compensation under the Regulations because:(a) He was not a person to whom the Regulations applied.(b) If the Regulations did apply, he had been offered employment which was reasonably comparable with the office he had lost.(c) If the employment offered was not comparable it was suitable for him within the meaning of the Regulations.The appellants further argued that the respondent was not unfairly selected for redundancy and thus was not unfairly dismissed.The Industrial Tribunal sitting at Manchester in a decision promulgated on 27th January 1995, rejected each of the appellant's submissions and found that the respondent was entitled to the relief he sort, and he had been unfairly dismissed. Questions of remedy were adjourned to a later hearing. The appellants now contend that the Industrial Tribunal fell into error in law in each conclusion it reached.We turn first to the application of the Regulations. Regulation 3 provides as follows:
"These Regulations shall apply to any person who- (a) was, immediately before the material date, either for the whole or for a part only of his time, the holder of the office of Justices' Clerk or employed in assisting the holder of such an office in the performance of the duties of that office."
The issue, therefore, is whether the Industrial Tribunal were correct in holding, as they did, that the respondent as the Chief Cashier at the Eccles Magistrates Court was assisting the holder of the office of Justices' Clerk in the performance of the duties of that office. It is in some respects a curious Regulation. If the intention was simply to ensure that any employee of the Magistrates Court Committee was entitled to benefit from the Regulations it could surely have said so. However, the question for the tribunal was the discrete one which we have sought to identify.Mr Hand on behalf of the appellants, first submits that the Industrial Tribunal did not approach the question correctly. He submits that they should have first identified the duties of office of the Justices' Clerk, then identified the duties of the respondent, and finally determined whether or not the duties of the respondent assisted the holder of the office of Justices Clerk in the performance of his duties of that office. Second, the appellants submit that what the respondent was doing in so far as he was assisting the Justices' Clerk was not in the performance of the duties of the office of Justices' Clerk, but in the performance of his duties as Collecting Officer. It is submitted that the duty of the Justices' Clerk as a collecting officer is distinct and different both in form and substance from his duties as a Justices' Clerk.We do not need for the purposes of our decision to determine the second matter raised by Mr Hand, and we expressly do not determine it. It is quite plain from the findings of fact made by the tribunal that part of the respondent's duties and no doubt a substantial part of them, fell entirely outside the scope of any duty concerned with a collecting officer. Since the Regulations apply to any person who was "either for the whole or a part only of his time " [our emphasis] assisting the Justices' Clerk then plainly his employment qualified in that respect.In our judgment the tribunal did address the question that they were required to answer correctly. They identified the duties of the respondent and they found as a fact that by performing those duties he was assisting the clerk in the duties of the clerk's office for the purposes of Regulation 3. That was in our judgment, as is submitted to us by Mr Burke on behalf of the respondent, a question of fact for the tribunal on the evidence adduced before it. It cannot properly be described as an unreasonable or perverse finding, indeed to hold to the contrary would, in our judgment have been more properly categorised as perverse.What, however, puts the matter beyond any doubt is an advantage enjoyed by this tribunal which the Industrial Tribunal did not enjoy. There has been produced to us a schedule dated 9th August 1993 signed by Mr McNeill, Clerk to the Justices, by which he exercised his powers under Rule 4 of the Justices' Clerks Rules 1970 (as amended) specifically to authorise that certain things which could be done by, to, or before a Justices' Clerk could be done by certain named persons in post at his Court. This was effectively a sub-delegation of powers given to the Magistrates which are delegated from the Magistrates to the Justices' Clerk and then further delegated by him as he considers proper. Rule 4 of 1970 Rules provides as follows:
"(1) The things specified in the schedule to these rules being things authorised to be done by to or before a justices' clerk, may be done instead by, to or before- (a) a person appointed by a Magistrates Courts Committee to assist him; (b) where he is part-time justices' clerk any member of his staff who has appointed by the Magistrates Courts Committee to assist him as such; or (c) any officer appointed by the Committee of Magistrates to be his deputy or to assist him."
The repeated use of the words "to assist" in those Rules is plainly considerable support for the proposition that those persons to whom the powers were delegated plainly fell within the scope of Rule 3.The persons so authorised by Mr McNeill were the Deputy Clerk to the Justices, the Principal Court Clerk, four named Court Clerks, the Listing Officer, the Enforcement Officer, the Chief Cashier (that is to say the respondent), and the Deputy Chief Cashier. The document gave authority to the respondent to allow further time for the payment of a sum enforceable by the court, to vary the terms of instalment order, to transfer a fine order and to make certain orders under Section 44 of the Criminal Justice Act 1967 in relation to means enquiries. This was a highly material document. It should unquestionably have been disclosed to the Industrial Tribunal. It demonstrates in our judgment beyond any possible doubt that the respondent was assisting the holder of the office of Justices' Clerk at the material time.It is argued by Mr Hand that the delegated authority conveys to the respondent power and not duty. In the context of this case that is a distinction without a difference. The power delegated to the respondent carried with it the duty to exercise that power in appropriate circumstances. We are unanimously of the view that the responsibilities delegated to the respondent by Mr McNeill have the effect of bringing him within Regulation 3.The tribunal held that the Regulation was not limited to those assisting the Clerk in his judicial and advisory duties, but extended to those staff who carry out even the mundane duties of administration in collection of monies. Plainly the Regulations cover the senior members of staff who were exercising to a greater or lesser extent the powers conferred on the Justices' Clerk by virtue of his office, as in this case specified in the schedule to which we have referred. Whether they go further may be a matter for future determination, but it is not required in our decision today, and we do not seek to go beyond confirming as we already have that the Industrial Tribunal were, in our judgment, correct in holding that the Regulations applied to the respondent.We turn to consider Regulation 7. If the Regulations do apply, as we have held they do, the appellants submit that the respondent is not entitled to either resettlement compensation or long-term compensation because he does not meet the conditions which must be satisfied under Regulation 7(1)(f)(i). This Regulation relates to re-settlement compensation and provides:
"(1) Without prejudice to any other requirement of these regulations, the conditions for the payment of re-settlement compensation to any person are that- (f) he has not after he has received from the Magistrates Courts Committee either written notice that his office was to be terminated, or written notice of termination of his office been offered in writing- (i) any relevant employment which is reasonably comparable with the office he has lost."
There are parallel provisions in identical terms relating to long term compensation which is provided for in Regulation 11. It is said that the applicant had been offered in writing relevant employment which was reasonably comparable with the office he had lost. We assume, without making any finding to that effect, that the post of cashier offered to the respondent fell within the wide definition of `relevant employment' which is to be found in Regulation 2. The Industrial Tribunal decided that the post of `cashier' was not "reasonably comparable". Indeed, in the course of his evidence on behalf of the appellants, Mr McNeill conceded as much. It is perfectly plain that the level of responsibility, the duties involved, the salary and the status, all combined to make the post not `reasonably comparable'. This was a question of fact for the tribunal. They were entitled to find as they did.It is submitted that by excluding from their consideration of this matter; security of tenure, the protection of salary for three years or the offer of training that had been made to the respondent, the tribunal fell into error in failing to take into account all the proper balancing factors which they should have done. We do not agree. The tribunal were entitled to take into account such factors as seem to them appropriate in forming the judgment as to whether or not the post of cashier was reasonably comparable. In our judgment no error of law is disclosed in the approach they took and we so find.We turn to consider Regulation 7(1)(f)(ii). In the alternative, the appellants submit that the respondent failed to meet the condition imposed by this Regulation which provides, as before:

"Any employment specified in paragraph (2) which is suitable for him."

7(2):
"For the purposes of paragraph (1)(f)(ii), the following employment shall be deemed to be suitable- (a) in the case of a person holding the office of Justices' Clerk, the holding of another such office, and (b) in the case of a person assisting the holder of the office of Justices' Clerk, the holding of the office of Justices' Clerk, or employment assisting the holder of such an office:
provided that the said employment shall be at the same place or in the same locality as that where the person who has lost office was employed immediately before his loss."The post of clerical assistant was, as we understand the job description which is before us as it was before the Industrial Tribunal, simply to assist in keeping the records and other paperwork required to monitor the collection of maintenance payments. To bring Regulation 7(1)(f)(ii) into play, the appellants must first offer to the respondent either the office of Justices' Clerk or employment assisting the holder of such an office. The Industrial Tribunal made no finding as to whether the post that was offered to the respondent fell within the scope of assisting the holder of the office Justices' Clerk. For the purposes of this appeal, we are invited to assume that the job offered did assist the holder of such an office. We make that assumption without by so doing intending to conclude one way or the other whether it did in fact so assist. That would be a question of fact for any tribunal subsequently concerned with such a situation.The respondent submits that on true construction of paragraph 7(1)(f)(ii), in order to escape the provision of Regulation 7 as regards settlement compensation, the employment offered must not only be "suitable" within the meaning of Regulation 7(2) but must be "suitable for him ", that is to say for the respondent. In other words, there is first an objective test, namely whether the employment offered falls within the definition of "suitable" to found in Regulation 7(2), and then a subjective test as to whether in the particular circumstances the employment offered is suitable for the respondent.The appellants submit that such a construction is not appropriate. They say that the words "for him" are there to give grammatical elegance to the section, rather than to import any specific meaning to it. That submission does not attract us. The words plainly are there for a purpose and in our judgment, that purpose is to introduce a subjective element to the question of whether the suitable employment is in the particular circumstances suitable for the person to whom it is offered.Whilst the tribunal did not address the first issue, they plainly addressed the second issue, and found as a matter of fact, that the post was not suitable for the respondent because it involved demotion, and a substantial salary cut, and thus was thoroughly unsuitable. There is no error of law disclosed in that finding. We therefore do not accept that the tribunal's decision can properly be criticised in respect of its findings in relation to the Regulations at all.We turn then to consider unfair dismissal. The Industrial Tribunal considered this question in its extended reasons at considerable length, setting out and analyzing the evidence in great detail. The tribunal found that the reason for dismissal was redundancy, and correctly directed themselves on the requirements of Section 57(3) of the Employment Protection (Consolidation) Act 1978 . Having done so, the tribunal concluded that whilst the decision to select for the new posts by way of application and interview was reasonable, the selection process itself was in effect a sham. The decision to dismiss it found was unfair because the respondent was unfairly selected for redundancy, there was no proper consultation, and no proper consideration of alternative employment. The Industrial Tribunal expressed itself in strong language.
"46. ... We have concluded that the management team had made up their mind about Mrs Ashley, Mrs Atkinson and the applicant before the applicant's interview. We do not accept that the "new" posts were so different that the respondents were entitled to reject the applicant for them on those grounds without a trial at least. We come to the conclusion that the selection process was so subjective and muddled that it was seriously flawed. We come to the conclusion that the whole exercise was so seriously flawed that we cannot say that the applicant only had a percentage chance of retaining employment had a fair selection procedure been adopted. It is not only procedural unfairness. It was profoundly unfair. ..."
Those are strong condemnatory words of the appellant's conduct in conducting the selection process.Mr Hand submits, that the tribunal approached the matter the wrong way. This was not, he says, a real redundancy case at all. This was a watered down redundancy case and the tribunal should not in those circumstances have considered the question of reasonableness in the way it did. In our judgment it was a clear case of redundancy. Here were two courts being merged into one, with one clerk, one organisation and one set of staff. Whereas before there had been two Chief Cashiers and two Deputy Chief Cashiers, in the new structure there was in effect to be only one of each post. It was inevitable that there would be some redundancies arising out of the restructuring which we have described. The interviewing process was in effect both a selection of employment and at the same time a selection for redundancy since anybody who failed to be selected for employment would be rendered redundant.This was a redundancy case, and the tribunal approached the matter in proper way. It is submitted that the tribunal erred in law in reaching the conclusions it did because its conclusions were perverse in the sense that they were irrational and there was no basis upon which a reasonable tribunal could have made those findings. We reject that submission. There was plainly evidence entitling the tribunal to reach the conclusions it did.For those reasons this appeal is dismissed.MR JUSTICE BUTTERFIELD : Mr Burke on behalf of the respondent applies for an order for costs against the appellants either in whole or in part on the ground that some of least of the matters raised in this appeal were either unnecessary or unreasonably brought.We have given this matter, as Mr Burke has invited us to do, not simply a first thought but a second thought as well. But both are thoughts which produce the same result.We reject the application. There will be no order for costs.