London Borough Of Hounslow v Jones [1998] UKEAT 591_96_0403

EAT
London Borough Of Hounslow v Jones
[1998] UKEAT 591_96_0403 · 1997-11-21

JUDGE PUGSLEY :

This is an employer's appeal from a decision of the Industrial Tribunal sitting at London (North) that the applicant was unfairly dismissed.The applicant had been employed as a teacher at Busch House School, Twickenham Road, Isleworth in two successive year contracts running from 1st September 1991 to 31st August 1992 and from 1st September 1992 to 31st August 1993. The second contract was not renewed. It was accepted at the tribunal hearing that the applicant had the requisite continuity of service to maintain an action for unfair dismissal and that the non-renewal of the fixed-term contract constituted dismissal. The applicant therefore had the right not to be unfairly dismissed.The school at which Mr Jones taught was a school for pupils with emotional and behavioural difficulties ["EBD"]. Busch House was a day school for EBD pupils between the ages of 5 and 16 years of age and according to the tribunal's decision had some 93 pupils. Of these 93, 28 were Primary School pupils and 65 Secondary pupils. A review of the service across the Borough was originally intended to take place in 1992, it was not in fact completed until July 1993.In the restructuring the Borough closed down two all age schools with the intention of making schools more specifically suitable for pupils of particular age groups.The restructuring had an immediate effect upon the Busch House School. The proposal was that in late 1993 to remove the Primary School children and retain only the Secondary School pupils. According the tribunal's finding the applicant was concerned for 90% of his time with teaching Secondary pupils.By virtue of his limited service Mr Jones was not ring fenced or protected in any way. It was necessary for him to apply for such vacancies which existed together with other candidates including outside candidates. Mr Jones was interviewed but not appointed. He had received a glowing testimonial from the retiring headmaster of Busch House School (pages 103-104 of the bundle) but in accordance with the Borough's Equal Opportunities Policy that reference was not put before the interviewing panel.The applicant had been teaching at the school; he had spent 90% of his time in Secondary teaching at the school and the school was to become solely a Secondary School. He was required to be interviewed for the post and the testimonial he had showing the way in which he had performed in that post was not put before the appointing panel. In these circumstances it is not difficult to understand the sense of injustice anyone might feel in these circumstances.The tribunal in trenchant terms upheld Mr Jones' claim that he had been dismissal unfairly. It is worth quoting from the decision itself:"4 The Respondent contend that Mr Jones was redundant. However, on the evidence, his job at the Busch House School at Isleworth, that of teaching secondary school pupils EBD pupils was still there. This is the job he was contractually required to do under his contract of employment. In other words, in the wording of section 81(2)(b) of the Employment Protection (Consolidation) Act 1978, the requirements of the Respondent's business for employees (i.e. teachers) to carry out work of that particular kind in the place where Mr Jones was employed had not ceased or diminished. Sometimes there is a redundancy when the amount of "work of a particular kind" has remained the same because the number of employees carrying out that work has been reduced. There is no evidence of this in the present case. On the contrary, the evidence, is that outsiders were recruited to fill these posts, applications being considered in competition with the application of among others Mr Jones.5 It is therefore clear that, under section 81(2)(b) of the Act, there was no redundancy so far as concerned Mr Jones's job and therefore of Mr Jones himself. Ms Andrew, on behalf of the Respondents sought to suggest that there was a cessation of the Respondent's business at Islington [ Isleworth ], coming within section 81(2)(a) of the Act. However the Respondent's business at Isleworth, in our view, is that of running a school at the particular location of Busch House School. This business has not ceased. If we limit the nature of the business to that of an EBD secondary school our conclusion is the same; the business in which Mr Jones was employed, that is the secondary school, has not ceased. Ms Andrew relied on Robinson v British Island Airways Ltd (1978) ICR 304. In that case, the Respondents carried out a re-organisation which involved the replacement of the general manager, operations and traffic, by an operations manager who absorbed the duties of the flight operations manager. Captain Robinson was adjudged not to have suitable qualities for the new post of operations manager and he was declared redundant.6 The Facts in the present case are different. The job concerned is the same, Mr Jones's former job teaching EBD secondary school pupils. There is no different new post. Ms Andrew sought to rely on a statement by Mrs Riddell, a member of the panel interviewing Mr Jones for the job in 1993, that Mr Jones had in no way shown that he would be suitable for the post in question. Mr Hrekow, another member of the Panel, made a similar comment. However no comment to that effect was made at the time. These comments were clearly based solely on the way Mr Jones performed at the interview. Before making such reckless and untrue statements Ms Riddell and Mr Hrekow ought to have concerned themselves with the way Mr Jones had performed in the post in which he was employed. They ought to have looked at the very least, at the supporting letter of Mr Pritchard, the Headmaster of the School. In this letter, which is in the bundle at pages 103-104, Mr Pritchard describes Mr Jones as a highly versatile teacher, form tutor to one of the most difficult groups in the school, and says that Mr Jones has shown a most competent and highly professional approach to his work with the group. He continues to state that year 9 and year 10 pupils are often some of the most difficult in the EBD sector, that Mr Jones has managed to win their confidence and trust and has managed to achieve a positive atmosphere within the classroom. Mr Jones has also had the experience of SATS because he was in charge of the same group of children last year when they were in year 9. It is significant that Mr Pritchard has appreciated that Mr Jones does not perform well in an interview. However, this does not mean that he was unsuitable for the post he held, or would afterwards have held, which is what should be considered. We think that this should be a salutary lesson to Ms Riddell, in particular, that she should not rely to such an extent on the result of an interview in deciding who should be taken on for a post, particularly when considering someone who is already in employment with the Respondents. Ms Riddell said that it was not the Respondents' policy to look at references until after the interview had been completed. However Mrs Boys did not agree with this. We think that, in the case of an internal applicant, the last possible indication of how they would perform in a post is to look at the record of how they have in fact performed, in the view of the head of the department. Ms Boys, too, concluded, solely on the basis of Mr Jones' interview, that it was "inappropriate" to appoint him.". She wholly ignored Mr Jones' performance as a teacher, of which she was aware, but as to which she gave us evidence. She did not dissent from Mr Pritchard's views and did not, though Miss Andrew, seeks to challenge Mr Jones in his evidence.7 In any event, the Respondents ought to have consulted Mr Jones before they made him redundant, in application of the principles in Polkey v Dayton Services Ltd 1988 ICR 428. If they had done so he would have given them a description of his work at the school similar to the most impressive description he gave during his evidence, which was not challenged in the slightest by the Respondents. Mr Jones's evidence was supported by a further favourable statement by his headmaster. To conclude that such a successful teacher is not suitable for the post of teaching secondary school EBD pupils is in our view perverse. There was a faint suggestion that some of the outside pupils who might be brought in from outside might prove more difficult than the existing pupils. This statement was not in any way substantiated. In any event it is difficult to imagine pupils as being more difficult than some of those whom Mr Jones described in his evidence. Mr Pritchard too described Mr Jones as being form tutor to one of the most difficult groups in the school.8 At the end of her submissions, Ms Andrew became somewhat doubtful about relying on redundancy as a reason for dismissal and sought to rely instead of re-organisation. However a dismissal which is unfair for the reason of redundancy does not became fair by simply substituting the reason of re-organisation. An essential difference between redundancy and re-organisation is that in the former case somebody has to go, but in the latter nobody has to go. We do not think that the change concerned can be properly be described as a re-organisation, particularly in so far as Mr Jones was concerned since 90 per cent of his job remained the same. All that happened was that the primary school pupils, who were a very minor part of his job, were moved elsewhere. In any event the Respondent failed to consult Mr Jones concerning the alleged re-organisation. The lack of consultation is fully as serious as in redundancy cases and provides a further reason, as, in the redundancy case, for our finding that the decision to dismiss Mr Jones was unfair.9 Ms Andrew also referred us to the cases of Dickson, Constani, Throsby v Gwent County Council , as 1977 IRLR 33. These cases concerned appointments for new posts, not for the employees' existing posts, and also do not apply to the present case. In any event we are doubtful whether they apply to Mr Jones's case, where he had been continuously employed for two years. Furthermore the cases were decided as long ago as 1977, before the Polkey case . There is no reference to the consultation which is now considered usually necessary."In paragraph 10 the tribunal deal with the question of compensation. Paragraph 11 of the decision reads as follows:
"11 In conclusion we recommend Ms Riddell to read "Irrationality" by Stuart Sutherland."
Before us, Ms Andrews who appears for the appellant employer has made many criticisms of the decision. Her first contention is that the tribunal has erred in law in deciding that the employee was not made redundant. She contends that in concentrating on the job the appellant was doing rather than looking at the wider reorganisation as a whole, the tribunal misconstrued the statutory definition of redundancy.Although the statutory definition of redundancy has remained unchanged in the 30 years since its inception, there has long been a debate over whether the test to be applied is the contractual or functional test. In the case of Safeway Stores PLC v Burrell [1997] IRLR 200 the Employment Appeal Tribunal has sought to clear a path through the tangled undergrowth of conflicting decisions.In that judgment the Employment Appeal Tribunal stated that free from authority it considered the proper construction of the statutory provisions and raised three questions:

(1) Was the employee dismissed? If so

(2) Did the requirement 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 set out in Stage 2.After comprehensively reviewing the authorities, the Employment Appeal Tribunal came to the view that it was impermissible to rewrite the words of the statute to import a further stage, that there must be a diminishing need for employees to do the kind of work for which the applicant was employed . (Paragraph 38 at page 206).Ms Andrews argues that this tribunal took a simplistic view of the case and concentrated narrowly on the fact that this employee was doing a particular job at this particular school and made no findings in relation to whether there had been an overall reduction in the needs of the employees to carry out work of a particular kind.The second issue which Ms Andrews raises is that in deciding that there was not consultation the tribunal have ignored the passages in the evidence and the documentation which clearly indicate that the employers had consulted with the relevant staff associations and had offered counselling to the applicant.The third issue which Ms Andrews raises is that the tribunal has erred in law in substituting its own view of the interview process rather than considering whether the decision made by the employer was within the range of responses of a reasonable employer. Before us Ms Andrews has argued that the failure to engage a temporary employee to whom at all time it was pointed out that the post was temporary may not necessarily be unfair and cites North Yorkshire County Council v Fay [1985] IRLR 247 . Furthermore, the tribunal in its criticism of the interviewing panel for not reading the reference, have adopted their own view of the appropriate procedure and have failed to consider whether this is a procedure which a reasonable employer could adopt.Mr Jones addressed us with passion. He is one of nature's advocates. He argues quite rightly that it is not open to this tribunal to substitute findings of fact already made by the tribunal below. He points out that the employer is constantly shifting its ground and that they were seeking to argue points that were not really in issue at the tribunal below. We note that the tribunal made the criticism that the employers seemed to be changing their ground as to their case. He claims that at the tribunal hearing much turned on a distinction the employers were seeking to draw between the differences in the two schools. Mr Jones also points out that he was not allowed to develop an issue which he wished as to the legality of the interview panel.We have come to the view that this case should be remitted to a freshly constituted tribunal for it to reconsider the matter afresh. We accept that in considering the question of redundancy the tribunal adopted an over simplistic view of what constituted redundancy. There is no finding about the wider staff implications and there needs to be clear findings as to this issue and whether there was an overall reduction in needs of employees to carry out work of a particular kind. Moreover, in its criticism of the employers in paragraph 8 for oscillating between redundancy and reorganisation as a reason for dismissal, the tribunal fail to appreciate that what matters is the state of affairs which constitute the reason for the dismissal rather than the legal label which a party attaches to that state of affairs. The tribunal's analysis of the distinction in paragraph 8:
"The essential difference between redundancy and re-organisation is that in the former case somebody has to go, but in the latter case nobody has to go"
is simplistic. As Phillips J observed in Robinson v British Islands Airways Ltd [1977] IRLR 477 at 478:
"In truth, a reorganisation may or may not end in redundancy; it all depends upon the nature and effect of the reorganisation."
Furthermore, we consider the tribunal overstates the position in paragraph 7 as to consultation in the light of those parts of the documentation and evidence to which Ms Andrews has directed us. At a further hearing the tribunal should at least consider the extent of the consultation and whether it was adequate.We can all understand the sense of injustice that Mr Jones feels. It would be a sad day if the judiciary were not able to give vent to their feelings of injustice on behalf of a party to an action. But in this case the language used was intemperate and the clear impression left by reading the decision was that the tribunal was substituting its own view rather than considering whether the decision to dismiss was within the range of options open to a reasonable employer. The tenor and tone of this decision is redolent of a sense of outrage on the applicant's behalf, rather than a considered adjudication of the reasonableness of the employer's action. It is no part of the tribunal's function to give unsolicited advice to a witness as to which books she might find helpful and to do so in the terms set out in paragraph 11 is both patronising and inappropriate.It is only fair that Mr Jones should have the opportunity to raise any issue which he wishes as to the legality of the interviewing panel. In remitting this decision we wish to make it clear that we are not in any way seeking to influence the decision to which the tribunal should come.