Ike v London Borough Of Islington & Anor [1997] UKEAT 727_96_1606

EAT

Ike v London Borough Of Islington & Anor

[1997] UKEAT 727_96_1606 · 1997-06-16

MR JUSTICE KIRKWOOD : Mr Ike was employed by the Islington Borough Council as a Quantity Surveyor. His employment began, I think, in 1990. In the following years there was a need for the restructuring and trimming of the organisation of quantity surveyors in the department, both, because of reduction in the amount of work and for funding reasons. In 1994 Mr Ike was declared redundant. He applied to the Industrial Tribunal at Stratford complaining of unfair dismissal and discrimination on the ground of race.

The hearing was a long one occupying the whole of the week of 4th December 1995 and running into the following Tuesday. The Industrial Tribunal found against Mr Ike on both grounds and it held:

"49 On the question of redundancy, it is overwhelmingly obvious that there was a redundancy situation in this case in accordance with Section 81(2) of the 1978 Act and there is again a very large body of evidence that the reason for dismissal was redundancy.

50 Turning to the provisions of Section 57(3) of the Act, we are satisfied bearing in mind the size and resources of Islington Borough Council that the system was carried out fairly, that there was proper consultation at all stages and in so far as there were other detriments and anxiety caused to the Applicant, they were entirely of his own making."

Those findings came at the end of the extended reasons of the Industrial Tribunal which were sent to the parties on 10th May 1996. Those extended reasons, seem to us, to be very careful and very full. The Industrial Tribunal preferred the evidence of the respondents where it conflicted with that of the applicant. It dealt point by point with the matters raised by the applicant. The tribunal was forthright in rejecting the applicant's allegations of unfairness and of discrimination.

Mr Ike appeals from that decision.

The respondents to the appeal, as they were to the Originating Application, are the London Borough of Islington and Mr David Taylor. Mr Taylor was the Director of Technical and Environmental Services of the London Borough of Islington. Of Mr Taylor the Industrial Tribunal said:

"41 Mr Taylor has had to put up with some quite unpleasant allegations by the Applicant concerning his racist tendencies and the fact that he was part of a conspiracy to make sure that the Applicant was not employed. ... We find the allegation without any merit at all. It is obvious from reading the account of the appeal and from listening to Mr Taylor's evidence that this Applicant was given every consideration and we cannot in any way fault the system or the bona fides of the people who conducted it. We reject the allegations against Mr Taylor in toto."

Earlier in the reasons, and referring to a matter that occurred at the end of Mr Ike's period of employment, which we do not need to go into in detail, the Industrial Tribunal say:

"19 Mr Taylor is to be congratulated for the humane and very generous way in which he treated the employee who on any view had acted quite disgracefully."

In his Notice of Appeal, Mr Ike raised these grounds. Firstly, that the Industrial Tribunal erred in law in finding that he was redundant; and, secondly, that the tribunal misconducted the hearing in a number of respects, namely:

(a) Mr Ike was given only 30 minutes to read the 18 page witness statement of one of the witnesses, Maryam Armstrong-James;

(b) he was not allowed to argue a case of indirect discrimination;

(d) that he was not allowed to call certain witnesses;

(e) he was not allowed to develop his cross-examination of a main witness, a Mr Brown;

(f) that he did not have the statement of one of the witnesses at all, namely, Mr Crawley; and

(g) that the Industrial Tribunal was clearly contemptuous of him.

Mr Ike in fact asked for a review of the Industrial Tribunal's decision on the basis of his not being allowed to call witnesses and that was refused.

Dealing with the procedural ground of appeal first, we have Mr Ike's affidavit of 18th August 1996, in which he swears to the points to which I have referred. As to the first of them, we remind ourselves that the exchange of statements of witnesses in advance of hearing is not by any means universal practice. In the early days, and even today before some tribunals, the witness gives oral evidence not only without any advance notice of its contents to the other side, but also without any copy of it being furnished. However, a very common practice, and the one that was adopted here, is to furnish a copy of the witness statement to the other side, and for that statement then to read out aloud by the witness as evidence-in-chief. The practice of which Mr Ike complains is thus common-place. We note, however, that in addition Mr Ike was exceptionally given half an hour or so to peruse it before it was read into evidence; that he cross-examined the witness for the rest of the morning and all afternoon and then into the following morning. So that in respect of that witness, he plainly had an ample opportunity to digest that evidence-in-chief.

The second point is as to amendment. It is clear that Mr Ike had an argument that he wanted to put forward of indirect discrimination. In his written reply on behalf of the respondent, Mr Tayler says in fact that no application to amend was made, but however that may be, the Industrial Tribunal in fact considered the point and dealt with it in paragraph 11 and surrounding paragraphs of their extended reasons. I do not intend to read the relevant paragraphs into this judgment, but I do refer in particular to paragraphs 11, 12,13, 14 and 15.

In paragraph (f) to which I have referred, Mr Ike says that he did not have the witness statement of a witness, Mr Crawley, on whose evidence the tribunal relied to a very limited extent.

Mr Tayler told us that what happened was that before the hearing began, he offered Mr Ike a bundle of all his witness statements. But Mr Ike told us that in order to inform himself of the procedures in the Industrial Tribunal, he had gone along as an observer on a previous occasion or occasions and had noted in the hearing he was observing, there was not a release of witness statements. So when he had Mr Tayler's offer of the bundle, he rejected it. Mr Crawley was not in fact called to give oral evidence, and Mr Tayler told us with complete frankness that while he finds it inconceivable that Mr Ike was not in fact given Mr Crawley's statement at the appropriate time, it is just possible that there was oversight there and that Mr Ike did not receive it. However, the manner in which the Industrial Tribunal dealt with Mr Crawley's evidence was to deal with it specifically very shortly in these terms:

"10 In November 1992, Ian Crawley, who gave evidence which we accept [ and that is an error if it is intended to import oral evidence ], the Assistant Director of Technical and Environmental Services and had responsibility for Architectural Services, took a leading role in considering how both staffing reductions could be achieved and how Architectural Services could be organised. Meetings occurred which are set out in the statements of Mrs Armstrong-James and issues were resolved."

So to the extent that reliance is placed upon that material by the tribunal, it was of a very general background nature and does not go to the issue in the case to which I shall come in a moment.

For the rest, Mr Ike says that he was not allowed to cross-examine fully. Nor was he allowed to call witnesses. On the cross-examination point, Mr Ike refers particularly, as I have said, to the evidence of Mr Brown who was an important witness. We have been told that in fact he cross-examined Mr Brown from 10.30 a.m. until nearly 3.30 p.m..

On the subject of witnesses, the Industrial Tribunal adjourned the hearing on Friday, 8th December, over the week-end, especially to allow a witness to be called by Mr Ike, but that witness was not then called.

Now, in the usual way, Mr Ike's affidavit alleging irregularities has been sent to the Chairman of the tribunal and thence to the members who sat with him. The Chairman's reply is in these terms:

"I have, today (December 12th) had sight of Mr Ike's affidavit. The case finished a year ago, and we gave detailed extended reasons.

Mr Ike was a difficult and to some extent disruptive litigant. However, he was given every opportunity to present his case and to cross-examine witnesses. We even adjourned the case for a day to allow him to call a particular witness.

The allegations in his affidavit are absurd. However, the lay members were both very experienced and should perhaps be asked to comment in case my recollection is incorrect."

The member, Mr Horn wrote:

"... the Chairman conducted the hearing in an exemplary fashion. taking cognisance of the fact that Mr Ike was in person. He gave the applicant all licence to conduct his case in his own fashion and was helpful in Mr Ike's presentation."

and then he deals with the witnesses:

"I found the respondents witnesses to be truthful in their recollections and found Mr Ike's testimony based on emotion in place of fact. Because of this Mr Ike at times was disruptive and his allegations of racism seemed out of spite at his position, instead of any real substance.

Mr Ash [ the Chairman ] continued to be helpful throughout the hearing allowing Mr Ike space that would not have been allowed if he had been represented. ..."

Miss O'Sullivan, the other member, wrote:

"I remember this case very well in its broad terms, ...

The Tribunal, far being "contemptuous" of the Applicant as he was "in person" virtually fell over backwards to assist him in the presentation of his case, but he persistently and arrogantly ignored the advice offered to him.

The Applicant claims ... he was "cut short". This is not true. The Chairman allowed him great latitude to say what he wanted to and it was only after he had repeated himself persistently, and after several reminders not to do so, that the Chairman said 'enough'. My fellow Tribunal member and myself intervened more than members normally do in an attempt to get him to understand a point or explain what was required of him. To no avail."

It is one of those cases in which the applicant, that is Mr Ike, represented himself. The case had, as was plain to us, clearly exercised his mind. He has perceptions about it which do not all fall within the framework of law concerning redundancy or of unfair dismissal; and he has a good deal to say.

We think the likelihood to be that the Chairman did his best to assist Mr Ike in staying on the issue, and in what was a long hearing reached a state, as he was entitled to do, of excluding irrelevant or repetitious material. It may have come to Mr Ike's mind during the hearing that his perception of what was relevant and material, and his perception of what amounted to redundancy, did not accord with that of the Industrial Tribunal. But having listened to the argument that is put before us and considered such material as we have, we are entirely unpersuaded that there was any material irregularity or unfairness in the conduct of the hearing.

Mr Ike's first ground of appeal - an error of law - turns on this line of argument that he presented. Prior to the selection for the redundancy process, there was in his ring-fenced group a team of three full-time and two part-time quantity surveyors filling the equivalent of four full-time quantity surveyor posts. The aim was to reduce that to three full-time quantity surveyor posts. Those would or could be filled by two full-time and two part-time quantity surveyors. There was thus a need to reduce the group from five to four.

In the assessment process Mr Ike came fourth out of five. Fifth was a part-time quantity surveyor, Mr Ali Nafaria, so if Mr Nafaria went, that would leave four. True that would have left the equivalent of three and half full-time posts, but Mr Ike should have been offered and would have accepted continuing his job on a half-time basis which he would have subsequently have sought to enlarge to a full-time one.

What actually happened was that in being notified of his redundancy and of the steps the employer was taking to assist with redeployment, Mr Ike was informed that there was in fact a half-time post available. I refer to the letter of 10th May 1994 which says this:

"... I am therefore giving you notice of termination of your present contract of employment, on the grounds of redundancy, with effect from 10th May 1994. In accordance with the Staffing Arrangements, your notice period is three months.

. ..

In accordance with the Staffing Arrangements, you can opt to seek alternative employment during the three-month notice period. I attach a copy of the Council's Employee Profile form, which is used to assist identifying suitable redeployment opportunities. If you wish to seek redeployment, please complete the form as soon as possible, and return to Paul Byrne, Staffing/Welfare Officer, ...

A part-time post of Senior Quantity Surveyor [ that was corrected later, because the word "Senior" should not have been there ] within Architectural Services is available, on a 17½ hour per week basis, and this can be formally offered to you. During the redeployment period, efforts will be made to find you further part-time or alternative full-time employment. If it were not possible to find full-time work for you within the three months, however, you would be offered a part-time contract of employment with the Council."

But what happened was that Mr Ike declined to accept that because he would not accept that his full-time post was redundant, and because he read s.84 of the Employment Protection (Consolidation) Act 1978 as showing that if he was treated as redeployed, there would be a trial period.

The section of the Act that sets out the provision as to the right to a redundancy payment is s.81 of the 1978 Act, and subsection (2) reads as follows:

"(2) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to-

. ..

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular king in the place where he was so employed, have ceased or diminished or are expected to cease or diminish."

There is very recent decision of the Employment Appeal Tribunal in the case of Safeway Stores v Burrell

[1997] IRLR 200

. In that case His Honour Judge Peter Clark, in another division of the Employment Appeal Tribunal, considered s.81(2)(b), and also reviewed the decided cases. Having considered the section, the learned judge said this at paragraph 23:

"... The relevant definition ... is contained in s.81(2)(b) of the 1978 Act (now s.139(1)(b) of the 1996 Act).

(b) of the RPA, and it is this:

'(2) for the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to-

...

(b) the fact that the requirements of that business for employees to carry out work of a particular kind ... have ceased or diminished or are expected to cease or diminish.

Free of authority, we understand the statutory framework of s.81(2)(b) to involve a three-stage process:

(1) was the employee dismissed? If so,

(2) had the requirements of the employer's business for employees to carry out work of a particular kind ceased or diminished, or were they expected to cease or diminish. If so,

(3) was the dismissal of the employee ... caused wholly or mainly by the state of affairs identified at stage 2 above?"

At paragraph 69 of that report onwards the learned judge, having considered the various decided cases on the question, said this:

"... we return to our original approach and conclude first that it was correct, and secondly that no binding authority causes us to abandon that position. ..."

He then sets out a summary of it, and in that summary he gives various illustrations to demonstrate the correctness of the approach. In particular he said:

"(e) This explains the concept of 'bumped redundancies'. Take this example: an employee is employed to work as a fork-lift driver, delivering materials to six production machines on the shop floor. Each machine has its own operator. The employer decides that it need to run only five machines and that one machine operator must go. That is a stage 2 redundancy situation. Selection for dismissal is done on the LIFO principle within the department. The fork-lift truck driver has the least service. Accordingly, one machine operator is transferred to driving the truck; the short-service truck driver is dismissed. Is he dismissed by reason of redundancy? The answer is yes. Although under both the contract and function tests he is employed as a fort-lift driver, and there is no diminution in the requirement as a fork-lift drivers, nevertheless there is a diminution in the requirement for employees to carry out the operators' work and that has caused the employee's dismissal."

The learned judge then gives examples in demonstrating that the test as formulated by the Court is a correct one.

There is no particular science, I say with respect to Judge Peter Clark, about the tests he has formulated, because it follows simply and plainly the wording of the statutory provision.

In the case before us, it is quite clear that Mr Ike was dismissed. It is quite clear that the requirement of the employer's business for employees to carry out work of a particular kind had diminished; and it was quite clear that Mr Ike's dismissal was caused by that state of affairs.

In postulating the 'counting heads' test, Mr Ike may have been guiding himself by 'a rule of thumb'. He says that as the same number of people were engaged after his dismissal as before, and it matters not, he says, whether they were full-time or part-time, or otherwise on what basis, then there is no redundancy. But that, as we have indicated, is not the test the Act of Parliament lays down. In short, Mr Ike has applied the wrong test and come to the wrong conclusion, and the Industrial Tribunal applied the right test.

The tragedy of this case is explained by the Industrial Tribunal in paragraphs 16 and 17 of its extended reasons, and this is what the tribunal said:

"16 After the 1994 redundancy exercise the Applicant was given notice of dismissal by reason of redundancy in a clear and unequivocal letter dated 10 May. We are satisfied the Applicant chose deliberately to misunderstand it. He would not from then listen to others. He was convinced that he was the best Quantity Surveyor and that he was entitled to keep what he considered to be part of his job. He did not seem to understand, and still does not understand or will not understand, that the post has disappeared. The council followed procedures fairly and clearly and tried to redeploy him by offering him effectively a half time post and also trying to interest him in another half time post with the possibility and indeed, we accept, the probability, that he would have in due course have had full time employment.

17 We do not in this decision propose to go through the correspondence and the various meetings that are set out in the witness statements and appear in the bundles. No member of this Tribunal can remember coming across an example of someone so determined to cut off their nose to spite their face. Again and again the council tried to persuade him to take a job but the Applicant for reasons of pride, prejudice or obduracy would not listen and would not accept the job. He has only himself to blame for his present predicament. No blame attaches at all to his employers. ..."

In order to succeed in an appeal to the Employment Appeal Tribunal, an appellant has to satisfy the appeal tribunal that the Industrial Tribunal made a material misdirection of itself in law or reached a decision on the facts that was unsupported by the evidence and was perverse. The findings of fact are a matter for the Industrial Tribunal, and it is not for this appeal tribunal to interfere with findings of fact unless perversity is demonstrated.

We have reached the conclusion that Mr Ike wholly fails to satisfy us of any material misdirection of the law; and, equally, entirely fails to persuade us that the findings of fact of the Industrial Tribunal cannot stand. Accordingly, this appeal will be dismissed.

Application for leave to appeal to the Court of Appeal refused.