Aikman v Biotechnology Biological [1999] UKEAT 1069_98_2101

EAT

Aikman v Biotechnology Biological

[1999] UKEAT 1069_98_2101 · 1999-01-21

JUDGE H WILSON :

This has been the full hearing of Dr Aikman's appeal concerning the decision of the Employment Tribunal about the circumstances of his dismissal from the Respondent Council. He has conducted his own case and the Council has been represented by Mr Fisher.

The matter came before the Employment Appeal Tribunal (the EAT) on 30 September 1998 by way of a preliminary hearing. At that hearing Judge Hicks, the Chairman, referred to Dr Aikman's statement that the Employment Tribunal had allowed the employer to use its ignorance of his capabilities to excuse its failure to offer him what is known as job 1000W. Judge Hicks said the EAT took that to be a way of putting a point which lawyers would perhaps put more technically than in that way. He referred to paragraph 2.16 of the Tribunal's reasons, where it was stated that, with regard to job 1000W:

"Dr Aikman gave evidence that he could have covered all the areas of the job specification of job 1000W and it is our assessment that that is probably right."

A little later on, after discussing whether Dr Aikman would have needed refreshment of certain capabilities, the decision of the Tribunal continued:

"Nevertheless we are satisfied it would have been practicable for the Applicant to have done that job from a skills and experience point of view."

However they also said:

"We do accept that the Respondents were not aware at the time the recruitment process was under way [recruitment for job 1000W] that the Applicant was interested in it. Nor did they have any belief at the time that it might be suitable for him and we are obliged to find that their approach to the recruitment process was in good faith."

They went on to say:

"Had we not considered the recruitment process to have been conducted in good faith we may have taken a different view."

The thrust of that objection, said the EAT at the preliminary hearing, expressed perhaps in rather more technical legal terms than Dr Aikman used, seems to us to be the thrust of the point. That is to say, the Tribunal should have acted on their own assessment of the practicability of his being offered that job and not simply found against him on the basis that the employers were acting in good faith in the judgment they reached.

The EAT said that that ground of appeal was an arguable point and it has been fully argued today. But they placed boundaries on the ground which was to come forward for full argument. In particular they had an eye on Dr Aikman's wish to attack the finding of good faith itself. But that was a finding of fact made by the Employment Tribunal on the evidence before it and there was absolutely no ground whatever for supposing that the Tribunal had erred in law in reaching it and there is no appeal to this Tribunal on grounds of fact. The EAT therefore directed that the appeal should proceed on one ground only, the terms of which were expressed as follows:

"The Tribunal erred in law in determining the issue of practicability of re-engagement in relation to job 1000W by reference to whether the employer acted in good faith, instead of by making and/or acting on their own finding of fact in that regard."

We have heard from Dr Aikman, in person, with plentiful references to his documentary evidence and submissions and it was clear that he found it difficult to observe the constraints imposed upon him as to the boundaries of the appeal by the terms on which leave had been given. In essence, Dr Aikman says that all the necessary information about his qualifications and his abilities were available to the Research Council in December 97/ January 98 from his CV and the other records about him which they held, and he relies on the finding by the Employment Tribunal about Professor Stoddart and the fact that Professor Stoddart's original view appeared to be changed under cross examination: his original view being that, for a variety of reasons, only one of which was to do with qualifications, Dr Aikman was unsuitable for job 1000W. The Tribunal dealt with his apparent shift from that position under cross examination.

At paragraph 2.13 the decision states that:

"Dr Aikman cross examined the Professor mostly concerning job 1000W. The Professor admitted there was a close resemblance to aspects of the applicant's job. Further, the applicant demonstrated that if he had had the opportunity, he could have pointed out that he had lectured in the subject of plant physiology. When he received a copy of the Professor's report on approximately 20 January, he endeavoured to have the process of appointment to the job held up, but unsuccessfully..."

There is an exchange of letters between Dr Aikman and the Tribunal in which he seeks the equivalent of an injunction to be placed on the Council and is told that the Tribunal has no such power.

"...The applicant wrote to the tribunal and the Chairman was obliged to point out that the tribunal had no powers to stop recruitment. That reply was not received by the applicant until 26 January. The respondents, too, would not have received until then a copy of the applicant's letter which accompanied a copy of the Chairman's [letter]. This was the first notification to them that the Applicant felt himself to be qualified to carry out the job.

2.14 As a result of the applicant's questions, the professor seemed to accept in cross examination that he was not in possession of sufficient information concerning the applicant's background when reaching the conclusion that there was a mismatch in the applicant's breadth of experience. In particular, he was not aware at all of the applicant's sensor background. Our impression was that he retracted his first opinion to a degree. Certainly, he confirmed that he would have given the position more consideration if he had known more details of the applicant's experience which he seemed to concede was in a wider field than he had hitherto thought.

2.15 However, the status of the job at the end of January was that they were proposing to interview shortlisted candidates. They did interview, on 22 January, and made a job offer on the 23 January. That was accepted by letter dated 26 January, received in all probability in the same post with notification of the applicant's interest in the position, albeit the successful applicant would not be starting until May 1998.

2.16 Dr Aikman gave evidence that he could have covered all the areas of the job specification of job 1000W and it is our assessment that that is probably right, although he would have been less experienced, or a little rusty, in relation to certain aspects of the job, probably more so than the respondents would have wished. Nevertheless, we are satisfied that it would have been practicable for the applicant to have done that job from a skills and experience point of view. However, we do accept that the respondents were not aware at the time the recruitment process was underway that the applicant was interested in that job. Nor did they have any belief at the time that it might be suitable for him, and we are obliged to find that they approached the recruitment process in good faith. The situation now is [that is, at the date of the hearing] that there is someone under a binding contract to undertake that job and who will either shortly start in it or, more likely by the date of promulgation of this decision, have started in it.

2.17 Had we not considered the recruitment process to have been conducted in good faith, we may have taken a different view but we do not see that there is any material difference in the Cold Drawn Tubes v Middleton situation where an employee is under contract to start or has started. The principle of causing great inconvenience and overmanning is still the same, there would not be enough work to go round and accordingly we do not find that it would presently be practicable to appoint two that vacation or indeed any other position with the respondent organisation or to grant the Applicant any remedy but compensation."

That is the position and that is the basis upon which the Tribunal came to its conclusion. In our view it illustrates the reality of the fact that the Tribunal proceeded in determining the issue of practicability on the basis of the facts which they found proved from the evidence before them.

It follows therefore that in all material ways we find that Mr Fisher's submission, which is based upon extracts from the decision of the Tribunal which I have read, is the correct one. The fact that the Tribunal found Dr Aikman could have, as a matter of practicability, done the job is not enough in itself because the job itself, at the time that finding was made, was no longer available. That was another fact found by the Tribunal quite accurately.

All that the Tribunal accepted was that the employer did not know that the Applicant was interested and also the finding - which we can not go behind although it is not accepted, quite clearly, by Dr Aikman - that the Tribunal acted in good faith. Accordingly, therefore, we find no error in law by the Tribunal and the appeal must be dismissed.