MacBride v London Borough Of Hammersmith & Fulham & Ors [1998] UKEAT 187_98_0210

EAT

MacBride v London Borough Of Hammersmith & Fulham & Ors

[1998] UKEAT 187_98_0210 · 1998-10-02

JUDGE J HICKS QC:

Mrs MacBride the Appellant was a teacher employed originally by the Inner London Education Authority from 1 May 1991 and subsequently, on the abolition of that authority, by the Hammersmith & Fulham London Borough, until she was dismissed on 31 December 1995, the reason given by the employers being redundancy.

She lodged three originating applications following that dismissal, one complaining of unfair dismissal, one complaining that she was dismissed and discriminated against or suffered a detriment by reason of her Trade Union Activities and one that she was dismissed or suffered detriments by reason of matters which fell within those provisions of the legislation which deal with Health and Safety and broadly speaking protect employees who are carrying out functions under the Health and Safety Regulation or, on the other hand, who themselves are in circumstances of danger and reasonably believe the danger to be serious and imminent.

The history behind those complaints was lengthy, complex and detailed and it is not necessary for the purpose of this judgment that I rehearse it. The decision of the Industrial Tribunal, as set out in a preamble to their Extended Reasons, was first that Mrs MacBride was not unfairly dismissed by reason of redundancy. That was mainly addressed to the application based on the complaint of unfair dismissal. Secondly, the Tribunal decided that she was not dismissed or discriminated against, nor did she suffer any detriment by reason of her trade union activities, and that plainly was directed to the application relating to those matters. There is no express decision in the document on the third application, relating to Health and Safety, although Health and Safety matters are dealt with in the body of the Extended Reasons.

The Reasons themselves run to 49 paragraphs and deal in some detail with the history. The Notice of appeal, after six introductory and formal paragraphs, sets out what are in effect grounds of appeal in paragraphs 7 - 122, so that there are ostensibly 116 grounds for this appeal. The appeal was, as is the practice in this Tribunal, listed today for a Preliminary Hearing and Mrs MacBride, who is represented by husband, Mr MacBride, as she was before the Industrial Tribunal, was informed, again according to the invariable practice of this Tribunal, that an hour was allotted for the purpose, this being a Preliminary Hearing.

Mr MacBride was aware of that and at our invitation very helpfully addressed his submissions to us to what he regarded as the most central and weighty points of the appeal. Although he concentrated, therefore, on those points it is our duty of course to take into account all the grounds of appeal alleged, none of them having been formally abandoned, and we have read them and given attention to all those grounds, not only to those which have been argued. It is indeed that which is the reason why this judgment is delivered at this time of the day, although the oral appearance before us concluded by about 12.30.

It is therefore probably convenient, and certainly I propose, to deal with the grounds of appeal in the order in which they appear, although I shall group together grounds which can be dealt with in that way. I say in advance that there are some grounds on which we propose to order that the matter proceed to a full hearing and others which we consider either to be covered by the grounds which are going to proceed or else not to raise any separate and arguable objection to the decision of the Industrial Tribunal, and which we shall therefore dismiss.

Grounds 7 to 35 are general and introductory; insofar as they raise arguable grounds for appeal they are covered by the specific orders which we make later and there is no need to deal with them separately in this judgment.

There is then a section headed "The Unfair Dismissal Case", starting at paragraph 36, and a number of matters are raised under that heading down to paragraph 70. There are three of those paragraphs which we direct to proceed to a full hearing. The first is number 42, which itself is somewhat lengthy but which, as we understand it and as argued by Mr MacBride, covers two areas. One can be summarised in this way, that the complaint is that the Tribunal in considering, as it was required, whether the requirements of the employers' business for employees to carry out work of a particular kind had ceased or diminished, paid attention only to the school at which Mrs MacBride was employed whereas, in Mr MacBride's submission, the business which should have been under consideration and within which the issue of redundancy therefore fell to be considered and should properly have been considered, both by the employers and then by the Tribunal, was the whole group of schools under the Respondent education authority, at least in so far as they were directly controlled schools. There may well have been schools within their general ambit but having a different relationship with the education authority but at least, says Mr MacBride, there was a single business consisting of all the schools directly under their control. That we considered to be an arguable point which should go forward to appeal.

The second distinct matter - as I have said paragraph 42 is rather long, but the second distinct matter which we identify within it - is that the dates at which the test of redundancy should be applied should include the date at which the final Notice Of Dismissal was given, 22 December 1995 Mr MacBride says, and not merely the earlier date at which the redundancy situation arose. That also in our view is an arguable point to go forward to appeal. We do not propose to redraft ground 42, but we say that much to indicate the two particular points within it which we believe are arguable, and therefore proper to proceed to appeal.

The next paragraph within that group which we propose to send forward to a full hearing is paragraph 50, and that can very simply be summarised as complaining that the Tribunal did not direct itself separately and properly, or if it did then it erred in the answer it gave, on the question whether even if there was a redundancy situation Mrs MacBride's dismissal was caused wholly or mainly by the cessation or diminution of business. The wording of ground 50 is in itself perfectly clear and it is quite satisfactory in our view that it should go forward as the formulation of that ground of appeal.

Paragraph 67 is the third within that group which we direct shall go forward for appeal. It is concerned with the alleged failure, as Mr MacBride puts it, of the Tribunal to consider properly whether the procedure followed by the employers had been fair. The remainder of the paragraphs in that whole section, 36 to 70, are in our view sufficiently dealt with by sending forward those three grounds, because they are either introductory to those three grounds or elaborations of them or particulars of them, or insofar as they do not come within that category they do not in our view raise separate and arguable grounds of appeal.

There is then a section in grounds 71 to 93 concerned with Health and Safety, and here we do accept that there are some grounds that should go forward to appeal, but we have formed the view that there is no satisfactory way in which they can be identified by picking out particular paragraphs, nor would it be helpful either to Mrs MacBride or to the Respondent or to the Tribunal which hears the appeal that they should simply go forward en bloc. It is better in our view that we should reformulate them in a way which draws attention to what we consider to be arguable grounds, and I shall therefore read the reformulated ground within that area which we direct shall go forward. It is not necessary that it should be taken down by Mr MacBride because it will be recorded and will appear in a transcript of this judgment which will be issued and, in any event, I shall check that transcript against the notes from which I am reading. So I do not purport to do it at dictation speed:

"The Industrial Tribunal erred in law in:

(1) failing to record any decision on the originating application of 21 March 1996;

(2) finding contrary to the acknowledgement of receipt issued by the Industrial Tribunal (London North) on 21 March 1996 that the originating application of that date was not received until 28 March 1996 and consequently was out of time for events occurring before 29 December 1995;

(3) failing therefore to consider as relevant to the Health and Safety complaints events occurring on and between 22 December and 28 December 1995, in particular the Applicant's grievance letter of 22 December 1995 and her dismissal by the Respondents on the same date;

(4) asking themselves in paragraph 38 of their extended reasons whether the "serious disciplinary problems" at the school were a serious and imminent danger, instead of whether they were circumstances of danger which the Applicant reasonably believed to be serious and imminent;

(5) wrongly directing themselves that only fire or other similar hazards were capable of being circumstances of danger, or of founding a reasonable belief of serious and imminent danger;

(6) wrongly addressing their attention only to the "serious disciplinary problems" in general, instead of also to the specific instances in which the Applicant believed herself to be in serious and imminent danger."

Other paragraphs under that heading are either summarised in our reformulation or are elaborations or particularisations of them, or in our view raise no separate or arguable ground of appeal. In particular, whether or not it appears among that group, the oral submission made by Mr MacBride that the Tribunal did not address the question of detriments other than dismissal is in our view not an arguable ground of appeal. The Tribunal does find as a fact that there was no other detriment and therefore dealt with that point and, of course, we are not entitled to entertain appeals purely on findings of fact.

After that section there is a section in paragraphs 94 to 101 dealing with what is described as the trade union case, namely the originating application concerned with dismissal or detriment because of trade union activities. Before I proceed to that, there was one other point under the Health and Safety section which I should have mentioned because it was separately argued by Mr MacBride, whether or not it appears in the specific grounds of appeal, and that is that the Tribunal, in finding that there was not a situation in which Mrs MacBride was without a Health and Safety representative, failed, he says, to take account of the fact that after a date (I think August 1995) she was no longer employed at the school but on the general redeployment list of the authority. We do not consider that that raises an arguable separate ground of appeal because, as we understand the history, there were no fresh incidents of danger, let alone a belief of serious and imminent danger, after that date.

That does bring me to the trade union case, in paragraphs 94 to 101 of the notice of appeal, and in our view there is no arguable ground of appeal there, because we find that the Tribunal correctly dealt with this matter in law in paragraph 36 of their Extended Reasons and, in particular, in the last sentence of that paragraph where they summarised their conclusions by saying:

"However, Mrs MacBride does not appear to have acted in any different way from any other trade union member in her situation regarding negotiations as to her future employment."

Then there is a section headed "Wrongful exclusion of evidence" in which a number of separate matters are raised. Mr MacBride concentrated on three. One was the exclusion of the evidence of Mrs MacBride's doctor, Dr. Peter Hayward - at least, not a doctor in the sense of her general practitioner, but a consultant who had been responsible for treating her. The reason for which Mr MacBride at the Tribunal wished to adduce that evidence was to show that Mrs MacBride's state of health, her illness in the summer of 1995, was caused by the way in which she was treated by the Respondent's agents and servants. So, as we understand it, that evidence would have gone to negative any justification for the employers' relying on that state of health as a ground for dismissal, but that evidence was ruled out and, in our view, rightly ruled out because it added nothing - or at least this is how we see it, whether or not that is exactly how its put by the Tribunal - to the argument of Mr MacBride on Mrs MacBride's behalf that the employer's use of redundancy was a cover for a dismissal which in reality and truth was motivated by Mrs MacBride's sickness, and indeed also by the disciplinary proceedings which were on foot against her. That is capable of being raised and argued, and was raised and argued before the Tribunal, and can be raised and argued before the Employment Tribunal at a full hearing under the grounds we have already directed to proceed. This evidence would therefore add nothing to that point and this ground is not needed as an additional ground of appeal.

Secondly there was a complaint that the evidence of Christine Blower as to the provenance of a letter put in evidence by the employers and dated 26 October 1995 was excluded. The truth of the matter in fact, as emerged in discussion between Mr MacBride and ourselves in the course of his presentation, was that it was eventually admitted into evidence and indeed the record plainly shows that. The gravamen of this complaint is in reality somewhat different. We accept that properly phrased there is an arguable ground for appeal under this head and rather than lengthen this judgment by describing it at length I propose simply to read the terms in which we direct that this ground go forward, because they themselves really tell the story.

The way in which we direct that this ground shall go forward - and as before I shall not slow down to dictation speed for the reasons I have already given - are as follows:

"Having received unchallenged evidence from Christine Blower that the version put in evidence by the Respondent of a letter purportedly written on 26 October 1995 to the Applicant by the respondent's head of personnel was in a form last saved on the respondent's word processor system on the 9 January 1996 after three revisions, and having been informed by Counsel for the Respondent that the Respondent no longer needed to rely on that document for the purpose of establishing when notice was given, the Tribunal should either have disregarded it or found that it was not sent in the form tendered in evidence or (as the Applicant testified) had not been received, and could not properly find, as it did, that by that letter the Applicant was on 26 October 1995 given notice of the termination of her employment to expire on 31 December 1995."

The third matter that Mr MacBride particularly argued is covered at some length in grounds 104 to 113 but the central point, as we understand it, can be stated very shortly. He had issued a witness notice against a Fran Setter, who indeed was the Head of Personnel who had written the letter of 26 October 1995 to which I have just referred. The Tribunal declined - I am not sure whether they formally set aside that notice, but in substance they declined - to direct that Miss Setter appear and give evidence. As Mr MacBride very fairly and properly accepts, one of the principal reasons which seems to have motivated them in coming to that decision was that Miss Setter would inevitably be a hostile witness as far as Mr MacBride was concerned. He could not cross-examine her, which was what he really wanted to do, of course, and therefore it was not in the best interests of Mrs MacBride that she should be required to give evidence on Mrs MacBride's behalf, when anything she said would on the face of it be evidence that Mrs MacBride herself through Mr MacBride was advancing.

That is an understandable ground and there is no reason in our view to have the slightest doubt of the Tribunal's intention of being helpful to Mrs MacBride in giving that ruling, and as we understand it Mr MacBride himself understood the reasoning behind such a ruling. What he says now is that, even if he could not, as he puts it, "question Miss Setter", the Tribunal could. Of course there would be no bar on his questioning her; what there would be a bar to was his cross-examining her by challenging her or asking her leading questions. However that may be, his argument to us is that the Tribunal could have, as he puts it, "questioned" her, but then again that would have been of no use to him unless they in effect conducted a cross-examination on his behalf, and it is not a satisfactory state of affairs for a Tribunal to descend into the arena in that way. So we for our part see no error of law in the way in which the Tribunal exercised its powers to direct that Miss Setter not be required to attend as a witness on Mrs MacBride's behalf.

That deals with the matters which Mr MacBride specifically argued, but as I said at the outset we recognise that there are a number of other heads under this general category of wrongful conclusion of evidence which, no doubt for time reasons, but also presumably because of reasons of relative importance, he did not develop orally before us. We have considered them all and it suffices to say that we do not consider that any of those other matters raises an arguable ground of appeal.

In paragraph 114 there is a heading, "Misunderstanding of evidence", and large numbers of examples are given. This also was not developed by Mr MacBride in oral argument, and again we do not hold that against him in view of the time element. We have considered this category. It suffers from the general difficulty, of course, that matters of fact and of interpretation and the understanding of evidence are pre-eminently ones for the Industrial Tribunal and not for us. Only if they erred in law can we interfere and we see nothing in anything that is raised in paragraph 114 that approaches an error of law.

Paragraphs 115-118 are headed, "Conduct of the Hearing", and there criticisms are raised in particular of the conduct of the Chairman of the Tribunal in a number of respects. Those respects were in accordance with the practice of this Tribunal directed to be the subject of an affidavit by Mrs MacBride, which she swore and which we have read, and then were sent to the Chairman of the Tribunal for her comments and she did comment and we have read her comments. Having done so we are satisfied that there are no arguable grounds of appeal raised in that section.

Grounds 119-122, finally, are concerned with the striking out of certain other individual Respondents. That again was not developed in oral argument. It is quite apparent in our view that the Tribunal not only did not err in law but was plainly right in its decision that the party responsible for the actions of which Mrs MacBride complained, or at least responsible under the statutory provisions on which she relied, was and was alone the employer Hammersmith & Fulham London Borough and not the individual officials and they were therefore rightly struck out.

That deals with all the grounds of appeal and we therefore direct that the appeal go forward to a full hearing on the grounds which we have identified either by reference to the Notice of Appeal or by reference to our own formulations in this judgement.