Alexander v Northampton Borough Council [1997] UKEAT 469_97_1010

EAT
Alexander v Northampton Borough Council
[1997] UKEAT 469_97_1010 · 1997-10-10
MR JUSTICE MORISON (PRESIDENT) : The purpose of this appeal is to determine whether there is an arguable point of law which the Appellant, Mr Alexander, can raise in his prospective appeal against a unanimous decision of an Industrial Tribunal, which dismissed his applications.The Tribunal's decision is set out in extended-reason form, running to 29 paragraphs and was sent to the parties on 21 February 1997.At the hearing Mr Alexander represented himself. The other party to the proceedings, Northampton Borough Council, his former employers, were represented by Mr David Bean of Counsel.The Applicant alleged various discriminatory recruitment and selection practices operated by the Council, in particular by the chief executive and chief personnel officer, Mr. Morris and Mr Parvin respectively. He also complained about his relocation in terms of reporting accountability from the existing chief executive division to the central personnel unit under Mr Parvin and he also alleged that he had not been allowed to work full time and that the actions of the Borough Council were racially motivated. He also, finally, claimed that when he resigned on 29 April 1996, his resignation was effectively a response to breaches of contract and amounted to a constructive dismissal.The Applicant started work in July 1992 as an equal opportunities officer, working on a part-time basis for 20 hours a week. He was initially in the chief executive's department, reporting to the assistant chief executive and, ultimately, to the chief executive himself. The equal opportunities unit was so located that they had access to the chief executive if the whistle needed to be blown on any activity of the Council itself in its recruitment and promotion policies.It was the Applicant's view that by transferring the line responsibility from the assistant chief executive to the chief personnel officer, he would be less effective in his position because he would be less effectively able to monitor the authority's own recruitment and promotion activities because those fell within the personnel function. It is right to record the fact that the Applicant made his views crystal clear to the authority and it is also right to record the fact that they were not prepared to accept the full validity of the arguments which underlay the dispute and believed that it was correct that he should be reporting to the chief personnel officer.The row over the correct reporting officer rumbled on for a number of months and in due course there was a meeting of 27 November 1995 where Mrs Davies, who was also in the same unit, appeared to indicate that for the time being she did accept that Mr Parvin did have line management responsibilities over her. Initially the Applicant did not appear to accept the position but at the conclusion of the meeting Mr Martindale, the Union representative, on behalf of both equal opportunities officers, declared that they accepted at least for the time being that Mr Parvin was their line manager.What happened subsequently was that Mr Alexander, the Applicant, wrote a forceful letter on 20 March 1996 to Mr Martindale, stressing forcibly his opposition to the management structure and indicating that he would have to seek to resolve the dispute at an Industrial Tribunal.On 19 April the chief executive wrote both to Mrs Davies and to the Applicant asserting that Mr Parvin was, indeed, their line manager and they should accept it and, in the case of the letter to the Applicant, he was required to give a specific 'yes' or 'no' answer. The reply which came back jointly from both officers was not an unequivocal yes, because it was qualified by asking the chief executive to await the outcome of further consultation with the Union's regional office, and on 30 April the Council received the Applicant's letter of resignation, claiming constructive dismissal.There were a number of complaints, as I have indicated, which were dealt with separately by the Industrial Tribunal. There is no dispute that the Tribunal purported to direct their minds to the legal test to be applied in a constructive dismissal case in paragraph 23 of the decision, and in paragraph 24 they dealt with the alleged breaches of contract. They found as a fact that there was no breach of the implied term of trust and confidence in the Council's refusal to increase the Applicant's part-time position to a full-time position and the Tribunal said this:
"The Tribunal were not aware of any specific request for full-time hours direct to Mr Parvin other than a passing reference in a letter to the Chief Executive dated 30 November 1995. There was no vacancy for a full-time post. There were budget restrictions and resource implications in any event."
We are not persuaded that that was a finding which they were not entitled to make on the basis of the evidence and written material presented to them.They then addressed the question as to whether the change in line management was a contractual breach and concluded that it was not, although they accepted the evidence by Mr Parvin that the change had not been managed in an appropriate way. The Tribunal considered the rival arguments as to whether there was a diminution in the status of the Applicant as a result of this change and concluded that there was not. He was still in 'dotted-line' communication on the management structure with the chief executive. His duties included the monitoring of the personnel practices adopted by the authority and there is no evidence, as we understand it, to suggest that the Applicant was impeded in doing his duty by the change in reporting officer.Mr Alexander has submitted to us this morning that it looks as though what the Council were trying to do was to disassociate the equal opportunities unit from the recruitment and promotion policies of the Local Authority and relies on what has happened a year after he left their employment, where it would appear that the Local Authority are leaving recruitment and promotion matters to the chief personnel officer. That officer will assume responsibility, presumably for ensuring that his employers do not offend the Race Relations and Equal Opportunities legislation. Within the chief executive department there will be retained one equal opportunities officer full time. What the Applicant says is that this seems to indicate that they were planning to do the very thing that he was fearing they were planning to do whilst he was still employed by them, namely, to remove the equal opportunities unit from personnel matters.It seems to us that whilst what happened afterwards leads to the conclusion in the Applicant's mind that that was so, we are not prepared to infer that that new evidence casts doubt on the approach of the Industrial Tribunal as set out in paragraph 24(b) of their decision.The Tribunal then turn to the question of whether Mr Alexander was right in his contention that the Council had been guilty of discriminatory recruitment and selection practices. They did that not because it was of direct relevance to the issues before them, because such complaints would fall under sections 28 and 29 and can only be brought by the Commission, but they did so because the allegations were made and could not be left outstanding, and, further might have proved valuable background material to the complaint of victimisation to which I will turn in a moment.In paragraph 27 the Tribunal indicated that there was nothing in the internal advertisements which suggested that persons of any particular racial group would either be preferred or excluded and they recorded the fact that they heard no evidence to substantiate the allegations which were being made and they noted that:
"Mr Morris the Chief Executive and Town Clerk gave detailed evidence justifying internal advertisements on the basis that the Council considered by that method that suitable candidates were likely to be found within the existing workforce and that proved to the case."
Against that background they turned to the victimisation claim. It seemed to us at one stage that this might be a point which could give rise to legitimate argumentation fit for a full hearing because there is no doubt that the Applicant had threatened to take the Borough Council to the Industrial Tribunal. But, on analysis, it appears to us clear from paragraph 28 of the decision, that the Industrial Tribunal have carefully weighed the circumstances of Mrs Davies, on the one hand, and the Applicant on the other, to see whether there was anything attributable to race or the doing of a protected act which will have played a part in the difference between the terms of the two letters, which were sent to them. What they have sought to do is to see if those matters are the only matters of difference, because if they were, then they would readily be able to infer that the actions were attributable to race or the doing of a protected act. But they have concluded, on analysis, that the reason why she was sent a different letter from him was because he had written on his own account a different letter from that which she had been a party to. The response of the Authority was directed to the fact that he was now expressly asserting that he could not accept or recognise the present position, despite what might have appeared to have been agreed at the meeting in November.Because of that challenge to the authority, if you will, of the chief personnel officer in the hierarchy, the authority required a yes or no response from the Applicant, which he felt unable to give.In those circumstances, we conclude that it was open to the Industrial Tribunal to say that the circumstances of the two individuals were not the same and that the case for discrimination and victimisation had not been made out. We are grateful to Mr Alexander for his submissions to us today.The appeal is dismissed.