Afful v London Borough Of Lambeth [1998] UKEAT 647_98_0107

EAT

Afful v London Borough Of Lambeth

[1998] UKEAT 647_98_0107 · 1998-07-01

JUDGE J HULL QC :

This is an appeal to us by Mr Timothy Oseko Afful. He appeals to us against a decision of the Industrial Tribunal sitting at London South under the Chairmanship of Mr Milton with two industrial members. That Tribunal heard his complaint against his former employers, the London Borough of Lambeth. His employment with them began on 8 July 1986. He was first employed as a Premises Management Officer.

Some time after he was employed the borough came under great pressure to make economies, there were apparently very serious over-expenditures in various ways. We are not remotely concerned with the causes of it but it was apparently well known to the Tribunal and accepted on all sides that the borough was not only entitled to retrench but, indeed, bound to do so. That was a process which evidently continued over quite a substantial period with successive economies being made including, of course, reducing staff who, one assumes, would be one of the principal expenses if not the principal expense of the authority.

In November and December 1995 one of the pieces of reorganisation took place and that involved, after proper consideration, consultations and so on, the removal of the post of Premises Management Officer which Mr Afful occupied and discharged. As his post had been removed he was suspended and various steps took place. The borough has - so the Tribunal found - an elaborate and careful procedure in cases such as this and, indeed, one assumes they must have because they have, to judge from what we have read, a considerable experience of such situations. There were suggestions that Mr Afful might apply for other jobs. There were, of course, certain duties of Mr Afful which had by no means ceased; they were transferred to a Miss Vince, she took many of his duties. As an administrative officer she took other duties too. That led Mr Afful, at various stages, to suggest that, in fact, there was no redundancy, that his job was still there to be done. That was one of the matters which the Tribunal had to consider.

Mr Afful did not, in fact, apply successfully for any jobs. I am not sure that he applied at all, but however that might be, there eventually came a time when it was considered that there was no work for him to do. It had not been possible, either by his efforts or by those of the authority, to find him any work to do and, therefore, he was given formal notice of redundancy effective on 14 November 1996. He had been suspended for something like a period of ten months or so. His actual effective date of termination was 14 February 1997.

He complained to the Industrial Tribunal that he had been unfairly dismissed and he claimed compensation. The employers put in their appearance. They denied unfairly dismissing Mr Afful and they said, in due course, that he was fairly dismissed by reason of redundancy. Fair dismissal for redundancy, of course, involves consultation with the employee concerned or with his representative; the consultation must be genuine consultation. The employer must act reasonably in that and other respects, must act reasonably in deciding who to make redundant. The employer must seek opportunities to re-employ the employee, if he is genuinely redundant, in other capacities; there are a number of steps which are well-known, one hopes, to all large employers and certainly were evidently well-known - so far as the Industrial Tribunal has told us - to this borough. Nonetheless, Mr Afful, having been dismissed, applied, as he was entitled to, to the Industrial Tribunal.

Pending the hearing Mr Afful applied to the Industrial Tribunal saying that he wanted witness orders. That is a letter of 2 December (with our papers at p28) and in that letter he said that he wanted what he called a "hostile witness order" for the following people, and then there was a list of, I think, ten people, or more, and among the "hostile witness orders" he wanted was one against a Mr Ed Hall. Mr Ed Hall was not, on the face of it, a "hostile witness" if that is what was intended to be conveyed, he was a trade union representative and had helped, or endeavoured to help Mr Afful.

There was a reply to that very substantial request and among the things which the Tribunal Chairman wrote in reply was this:

"I must explain that a Witness Order is not usually granted for a witness whom a party wishes to cross-examine. This is because if you call a particular witness to give evidence, the Tribunal is unlikely to allow you to cross-examine that witness. On the other hand, the Tribunal will, of course, allow you to cross-examine any witness called by the other side."

Then, pointing out the obvious, that if the other side fails to call an available person to give evidence that person will not be able to contradict your own evidence as to those matters, the Chairman says:

"You may renew your request if you wish. In doing so you should outline exactly what the witness can give evidence about and why that evidence is relevant to the issues."

Mr Afful did come back. In his letter of 9 December 1997 he wrote again to the Chairman; he said:

"Further to your letter... and my letter... I would like to refer you to paragraphs. [and he lists them] of my enclosed statement. These clearly show the relevance of Mr Hall's evidence and why he must be compelled to give evidence."

Saying that Mr Hall will not be able to deny what he had told him, Mr Afful attaches to that letter a statement, which is a very long one, and only part of it was sent. There are paragraphs as follows; in paragraph 44 Mr Afful proposes to say that he had been to see Ed Hall and "Ed Hall agreed to help me subject to my completing the trade union application to re-join", and then took certain steps. Then, later, paragraph 48:

"Ed Hall said in response he told Peter Gould [ another gentleman of the Council] that they must (Peter & Ed) get things straight and what was all this nonsense suspension about and when would I be called to be interviewed as part of the investigation. He said Peter Gould told him in strict confidence, that if I had done anything that warranted disciplinary action they would not be wasting money by offering him voluntary severance. They would rather be taking swift disciplinary action, and that my suspension was a bid to frighten me into accepting voluntary severance because I had been raising lots of issues over the deletion of this post."

So that was one of the matters which was laid before the Chairman. We are told that what happened was that when the Tribunal sat on 25, 26 and 27 February, at some stage Mr Afful renewed his application for a witness summons to Mr Hall. Mr Mills has told us that, who has appeared before us today to pursue the Application. He says that there are two grounds on which this appeal should proceed.

First of all, he says, the Industrial Tribunal should have compelled Mr Hall to give evidence by issuing a Witness Summons. Mr Mills says his instructions are that Mr Afful told Mr Hall that he wished to apply for an alternative job with the authority and that Mr Hall saw Mr Gould, of the Respondents, and came back and reported that what Mr Gould had said was that the Applicant must accept his voluntary severance payment and if not he would face disciplinary charges. The Applicant then said to Mr Hall that he would challenge those, if necessary, in the Industrial Tribunal. Mr Gould said if he does such a thing he will get no references in that event.

Well, of course, this was, as Mr Mills has said, a case of double hearsay but that was what Mr Hall told Mr Afful that Mr Gould had said. It is strikingly different from what is said in the statement which was sent to the Chairman and no explanation has been given to us of why that should be so. At any rate, the Chairman and members of the Tribunal, having considered this further request - and we are relying entirely on what Mr Mills tells us on his instructions - decided not to issue a Witness Summons.

The issuing of a Witness Summons is, of course, a discretionary act for any Tribunal. Before it issues a Witness Summons the Tribunal must be satisfied of two things; first of all, the Tribunal must know what the witness is likely to say, in the form of a signed statement, if possible; and, of course, that it is of value to the case; relevant and important. Secondly, that the witness will not voluntarily come without a Witness Summons. Those matters being satisfied, then it becomes a matter of discretion for the Tribunal.

There is no record in the decision of exactly why that decision was taken but when we look at the extended reasons it becomes apparent that this Tribunal conducted a most lengthy and careful investigation of all that was laid before it. Among the things that were laid before it were Mr Afful's own statement about what Mr Hall told him he had heard when he went to see Mr Gould not, apparently, once but more than once. So those matters were laid before the Tribunal. Perhaps more important than that, it was for the authority to show the Tribunal, if they could, first of all what the reason for the dismissal was and that it was, so to speak, a reason arrived at in good faith and correctly by the local authority. Secondly, they had to show - and this no light task - that they had throughout acted reasonably in treating that as a reason for dismissing Mr Afful.

The Tribunal say they heard evidence from the line manager, Mrs P Tinsley, from the assistant chief executive, Mr Hart and from the head of personnel, Mrs Clarke. They say they had referred to most extensive documentation; hundreds of pages of documentation. They say that there is a vast quantity of memoranda and letters generated by Mr Afful, which they have looked at and the only arguable point they can find raised by the Applicant in the whole course of the hearing was the Respondents' "approach to the reallocation of duties within the overall budget cut reorganisation exercise".

They go into that. They go into the question of Ms Vince's job and the reorganisation and they find those issues in favour of the authority. They consider the position of Mr Hall and his actions. Having referred to Mr Hall's activities at para 17, they say at para 18:

"It is quite impossible and unnecessary for us to speculate on what Mr Hall may or may not have said to the Applicant. We pointed out to the Applicant that in our industrial experience both from the work place and from sitting on a variety of cases involving the sorts of issue before us it is not unknown for a union official or representative to seek to persuade his member that it is in the member's interest to take the benefit of an enhanced retirement/redundancy package rather than to seek alternative employment within the organisation in question. We believe that it is not unknown for a trade union official perhaps to take the view that it is kinder and more beneficial to an employee to suggest to that employee that he is better advised to take a financial package and to avoid perhaps having to spell out to an employee that his chances of redeployment, for example in a competitive interview with three other managers, are not very high. Whatever may have occurred however between the Applicant and his union representative we are quite satisfied that the Respondents' management behaved absolutely correctly and properly in following through the ring fence exercise and inviting the Applicant to put himself forward."

From what we have been told, they had clearly been told two differing stories about what Mr Hall had told Mr Afful had been the substance of his conversations with Mr Gould. They then make this very common sense comment, which would probably be echoed in a different form by any barrister or solicitor engaged in litigation, about the way he has to seek to persuade his client, on occasions, to be reasonable, and has to dangle in front of the client's eyes some very unattractive possibilities if he goes on in the way that he is going on; the barrister or solicitor may say to his client "well all sorts of things may happen if you really insist on going on with the action, or the defence of the action, or whatever it may be, and experience encourages me to tell you that you really should settle at this stage on the basis of what is offered." That can give the client a very unfavourable view of things. He may not like what his solicitor and barrister tells him and he may, as a result of the way in which a gruesome picture is painted for him, take the view that his employers, as in this case, are far worse, perhaps, than they are because the duty of the lawyer is to paint a possible gloomy picture.

Well, that was what they said there and then they went on to their conclusions. They had heard a lot of evidence and, if not the formal legal burden then at any rate the responsibility of telling them how the employers had tried to cope with this situation was very much on the employers, in the hope that the Tribunal would consider that they had behaved reasonably. The Tribunal comes down like this, para 26:

"On the issues which we had to determine in relation to the Respondent's decisions to restructure the department in which the Applicant formerly worked, to restructure the departments referred to in the Council Committee's report at R20; to reallocate the job duties and job functions connected with that restructuring exercise, to assimilate Karen Vince to the post of Administrative Officer; to appoint Ms Sadik to the post of Office Services Manager, to carry out meetings with the appropriate trade union bodies and to issue the correct statutory notices HR1s in and about that reorganisation exercise, to supply the Applicant subsequently with information as to alternative job vacancies; and ultimately to take the decision to operate a notice of dismissal for redundancy we are quite satisfied that those concerned with all these procedures acted completely fairly, validly, in accordance with the relevant Council's procedures and practices and without any conscious or unconscious intention to disadvantage the Applicant."

They say that the procedure was designed to be as fair as possible. The way it was implemented was faultless. They refer to a number of very unhappy and unfortunate allegations of an extravagant sort which were made by Mr Afful against various people. They say then that in his cross-examination these were not pursued. They make comments very favourable to several of the authority's witnesses They say they accept Mrs Clarke's evidence:

"We find that she must have been subjected over a considerable period of time to a great degree of stress and anxiety as a result of the very extreme allegations made by the Applicant over the December-February period and indeed since that time. We consider that she has behaved throughout the entire period with enormous restraint and tolerance in view of the completely unwarranted attacks which she has received from the Applicant."

Then they go on to Mr Hart, he is the assistant chief executive who gave evidence to them, they say:

"Mr Hart we find also over the entire period in question treated the Applicant with extraordinary understanding, tolerance and restraint, in his handling of all the massive variety of allegations and matters put forward by the Applicant over the whole period from January 1996 until these proceedings."

Then, in para 31, they say:

"Dealing with the overall reasonableness of the Respondents' decision as a whole to dismiss the Applicant ultimately for redundancy we have no hesitation in finding that the Respondents' decision demonstrated extraordinary compassion and tolerance of the stance being adopted by the Applicant throughout the whole period. We find that Senior Officers of the Council spent an enormous quantity of time and trouble dealing with every single matter raised by the Applicant many of which were (as we have given examples above) self-contradictory, inconsistent or inherently implausible."

They say the decision to dismiss the Applicant was "correct and eminently reasonable". Then, in para 32, they come to the unhappy fact that Mr Afful has become unwell; that he is not fit for work; and he himself had told them that he was "unfit for work on a long-term basis" and "confirmed today", they say, "that he is unfit for work in the foreseeable future". Then they say, finally, on the case as a whole:

"33. ... we can think of no employer in the land who would not have been reasonably entitled to reject such an implied request [that is for an agreed retirement] in view of the persistently provocative, inflammatory sweeping and inherently implausible allegations, assertions and arguments being put forward by the Applicant in letter after letter."

So those were their conclusions having heard the material witnesses from the authority. It was not a case of not having heard about what Mr Ed Hall might or might not say, that was conveyed to them by the Applicant himself and dealt with in the way which I have indicated. It is said in addition - this is the second matter that Mr Mills relies on - that the Chairman should have allowed a tape recording of what Mr Ed Hall had said to Mr Afful to be played to the Tribunal. That was a situation carefully set up by Mr Afful in which he covertly took a tape recording of what Mr Ed Hall said to him about this. To do that he went and provoked Mr Ed Hall into repeating matters, or assenting to matters, by going and telling Ed Hall what he, the Applicant, had heard from Mr Hall previously and he says the tape recording would have confirmed that.

The Industrial Tribunal again was exercising a discretion. They had heard a lot of evidence and they had heard what Mr Afful had told them about what Mr Ed Hall had said about what Mr Gould had said. They are not bound to exercise their discretion in any particular way. They had a lot of evidence, as I say, they are required to hear witnesses and to make such inquiries as they think right; they are not bound to attend to every piece of hearsay or double hearsay which anybody wishes to lay before them. If they had had any doubt about the integrity of the authority, the witnesses they heard and were going to hear, if they thought that Mr Afful might or might not be right in his recollection of what Mr Ed Hall had said, then they might very well have said "yes, we will hear the recording to see about that" but otherwise, why should they? It was a matter for them. Only they could say whether they would, on a broad view, be likely to derive benefit from listening to this covertly obtained tape recording.

So there were two exercises of discretion. It must be very exceptional for an Industrial Tribunal, having heard all the evidence, to form such a wholly favourable view of the activities of an employer and to say, as they did, that the employer was going far beyond anything required by the duty of reasonableness and showing an extraordinary degree of patience, care and compassion towards the employee in his illness and unhappiness. This Tribunal was clearly entirely satisfied by the evidence which it had heard from the Respondents and was clearly dissatisfied with what they had heard from Mr Afful. In our view no point of law which is fairly arguable is raised before us. The discretion belonged to the Tribunal in both these matters. It does not belong to us. When we looked to see if there was material on which the Industrial Tribunal was entitled to exercise their discretion in the way that they did we are quite sure that there was. It is perfectly obvious. There was masses of material on which they could so exercise their discretion. When we ask ourselves the irrelevant question, would we have exercised the discretion in the same way? - (It is not, of course, a question which we have any right to ask) - it is hard to see that we ourselves would have exercised it in any other way. However that may be, it is clear to us that there is no fairly arguable point of law raised by this appeal as explained to us and, as I say, we are very grateful for this, by Mr Mills.

The other points are not pursued. They involve saying that this Tribunal misbehaved in various ways - we do not go into those. It is clear that the appeal cannot succeed if there is no arguable point of law because we have no right to go into questions of fact. Therefore we say that this appeal must be dismissed now rather than going to a full hearing. Those are the reasons of us all.