MRS J K MACBRIDE v LONDON BOROUGH OF HAMMERSMITH & FULHAM [1999] UKEAT 187_98_2005

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 187_98_2005

Case No Appeal No. EAT/187/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS J K MACBRIDEAPPELLANT

LONDON BOROUGH OF HAMMERSMITH & FULHAMRESPONDENT

Before

Mr Justice Lindsay Mr R Sanderson

Date 20 May 1999

[1]) The Solicitor London Borough of Hammersmith & Fulham Town Hall King Street London W6 9JU MR JUSTICE LINDSAY: This is the Appeal of Mrs J K MacBride (Joanna or sometimes Anna MacBride) in the matter MacBride against the London Borough of Hammersmith & Fulham. Remarkably, the case took 14 days to be heard at the Industrial Tribunal at London (North) under the chairmanship of Mrs M H Don. Mrs MacBride was then represented by her husband, who has also appeared for her today. He has addressed us fully and with, if we may say so, skill and intelligence and with moderation. The London Borough has appeared before us, as it had before the Industrial Tribunal, by Mr Stilitz. The decision, which was promulgated on 8th December 1997 reads as follows:

"The unanimous decision of the Tribunal is that Mrs MacBride was not unfairly dismissed by reason of redundancy. She was not dismissed and discriminated against or suffered any detriment by reason of her trade union activities."

In fact, as will be seen, Mrs MacBride failed also on some health and safety issues as well.

[2]There was a massive Notice of Appeal lodged on 15th January 1998. It is said that it advanced 116 grounds of appeal. Fortunately, from our point of view, there was a Preliminary Hearing on 2nd October 1998 when the EAT under His Honour Judge Hicks referred to the 116 grounds ostensibly specified and concentrated them and reduced them by focusing on some points and rejecting others and what emerged were 5 broad areas in which the appeal was allowed to go forward.

[3]On that occasion, Judge Hicks gave a very brief summary of the background which we gratefully adopt. What he said was this:

"Mrs MacBride was a teacher employed originally by the Inner London Education Authority from 1st May 1991 and subsequently on the abolition of that authority, the Hammersmith & Fulham London Borough, until she was dismissed on 31st 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 detriment 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."

[4]We shall go through the 5 broadly specified permitted grounds that were identified at that Preliminary Hearing, although as we go through them it will be quite apparent that some of them are themselves broken down into further issues.

[5]The first (which, during the course of the hearing we called "1a") was described at the Preliminary Hearing as follows:

"The complaint is that the Tribunal, in considering, as it was required, whether the requirements of the Employer's 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 that 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 insofar 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."

So that is ground 1a.

[6]Looking to the school itself, the school at which Mrs MacBride worked, it was overstaffed but the Tribunal held in their para 11 as follows:

"Because of the difficulties which the school had been experiencing the student role had been decreasing and there had been a commensurate drop in budget. It was considered that in consequence, the school was overstaffed. The structuring operation had been designed for a much larger institution. It became apparent that a new structure needed to be implemented and Mr Allen worked on this structure with Mr Ingledew. The outcome was that Mrs MacBride's department was abolished." 7 The Tribunal said in para 12: "

The Business Studies Department was abolished and Mrs MacBride was affected in consequence because she had been the head of that department."

[8]Also, the Information Technology Department was abolished. The Tribunal say the separate Business Studies Department and the Information Technology Department were abolished and accordingly, a new job description was circulated. Mr Davis was Mrs MacBride's principal rival, perhaps only rival, for the new job and it was he who got the job. What the Tribunal said as to that is this:

"On 24th May 1995 representations were considered from Mr Davis and it appeared to the first group of the officers that the duties of his current post more closely matched those of the new Information Studies/Business Studies post. He was written to on 26th May confirming that he would be slotted into the new post. Mrs MacBride was written to on 25th May confirming that she would not be slotted into the new IS/BS post 14."

[9]Mrs MacBride appealed against that. It is said, rightly or wrongly, that at first she dropped the appeal and asked instead to go onto the Borough's Redeployment Register and it is the case that on 1st June 1995 her name was put onto that Redeployment Register, but then she restored her appeal (or, if it had not been dropped, continued with it) but it turned out not to be successful. The Employer's allegation that there was no possibility of her being redeployed was specifically accepted by the Employment Tribunal. What they said as to that was this:

"In the event her employment was terminated on the grounds of redundancy on 31st December 1995 there having been no possibility as alleged by the Respondent of Mrs MacBride being redeployed in that she was on suspension at the time. She was the subject of disciplinary proceedings and had been on long-term sick leave. They held that there had been a redundancy situation."

[10]In their para 44 they said:

"We find as a fact, pursuant to Burrell [which is a reference to Safeways Stores Plc -v- Burrell [1997] IRLR 200 ] that there was a redundancy situation pursuant to Section 139 1(B) of the 1996 Act. Clearly there was a diminution in the work for employees to carry out work of a particular kind. There had to be a contraction within the school owing to the forming role and subsequent decrease in financial resources. We then considered whether the dismissal of Mrs MacBride was caused wholly or mainly by that state of affairs. Clearly we find as a fact that this was so. The Respondent had to reduce their numbers. Two posts had to be combined."

[11]It is against that background that this first point 1a. emerges. It has an impact in two ways, as it seems to us. Was the redundancy situation simply at the school at which she worked? Was that the relevant place of work to look at, in terms of establishing whether there was a redundancy situation that affected Mrs MacBride? On that issue, Mr Stilitz has taken us to Hightable Ltd -v- Hurst

[1997] IRLR 513

and that makes it clear thar it is very much a matter of fact for the Tribunal to look into and to be left to their good sense to determine. Whether we would have come to some sort of broader consideration is neither here nor there.

[12]The other aspect of this first point is redeployment. How broadly did redeployment need to be considered? Was redeployment relevant only if it could be offered at the school at which Mrs MacBride worked or was it relevant to look to the whole of the Hammersmith & Fulham school range? It cannot be said that the Tribunal did not look at the whole range. What they say in their para 45 is this:

"We considered whether in so doing [and this is just after the Tribunal had set out the passage about the two posts which had to be combined] The Respondent had behaved reasonably, pursuant to Section 98(4) of the Act. We were concerned that when Mrs MacBride was dismissed the redeployment process had not, in fact, been explored or activated. There may have been vacancies at the school or at the William Morris Sixth Form Centre."

[13]The Tribunal was quite plainly, therefore, looking beyond the school itself. But then they continue:

"The reason the Respondent gave for not considering Mrs MacBride for redeployment was that she was on suspension and subjected to disciplinary proceedings and that in their view she was absent on long-term sickness and that her state of health precluded her from employment. We note that indeed, Mrs MacBride is still unable to pursue her employment as a teacher, although she maintains that, if she had been given employment, her health would have dramatically improved."

[14]So it is the case that the Tribunal looked beyond merely the possibility of employment at the school itself and looked into the position, beyond, that at other centres, but the difficulty was that Mrs MacBride had not co-operated so far as concerned medical information. The Tribunal held, looking at para 46 that:

"She was interviewed by the Respondent's Occupational Health Physician to ascertain whether she was fit to attend a hearing, but at all times, she refused after 8th October, to provide any medical certification regarding her state of health."

[15]She had been on the Redeployment Register for 1½ terms and also the Tribunal held (and this is para 47):

"We note that during that period Mrs MacBride made no attempt to find a job within the Authority for herself. Even if the Respondent had been able to offer her a position, we doubt whether she would have been considered suitable because she was sick and under disciplinary suspension."

[16]Thus it was that they concluded:

"There was no alternative but to dismiss Mrs MacBride by reason of redundancy on 31st December 1995. We find as a fact that the provisions of Section 98(4) of the 1996 Act have been complied with. It was reasonable for the Respondent to have dismissed Mrs MacBride for reason of redundancy, bearing in mind the circumstances of the case."

[17]No employer is bound to go on with redeployment enquiries and possibilities against a background of almost total improbability of success. The position here was that Mrs MacBride had been relying on, or asserting to some extent, ill health, and yet would not co-operate in providing medical information. She was under suspension and one can understand that that would make life very difficult in terms of her being acceptable for alternative employment at other schools in the area, or indeed, in any area and she had already been on the Redeployment Register to no avail for 1½ terms. It seems to us that the Employment Tribunal was entitled to conclude, or at any rate it could not be said that there was no evidence on which they could properly have concluded, that the Employer had done enough to show that redeployment had been sufficiently enquired into to enable the Tribunal to be able to describe the dismissal as fair. This question, as it seems to us, is chiefly, as the High Table case illustrates, a matter of fact to be left to the good sense of the Tribunal. Had it been possible for the Appellant to show us that employment at schools other than the school at which she worked had never been considered, well then, the matter could have become a point of law. But the Employment Tribunal expressly dealt with that, as we mentioned, and it does not seem to us that there is here any question of law, properly so called, with which we could deal. Moreover, the argument, as it seems to us, fails on the facts in that the matter was thoroughly looked into and one cannot say that there was no reason given for the conclusion which was arrived at. That is the point we described as 1a in the Preliminary Hearings Judgment.

[18]Point 1b was this:

"The dates at which the test of redundancy should be applied should include the date at which the final notice of dismissal was given, 22nd December 1995. Mr MacBride says, and not merely the earlier date at which the redundancy situation arose."

[19]In the sense that Mrs MacBride had become one of two people after one job in the reorganised structure of the school and that she had been ruled to be the one of the two not to be offered the new job, well, in that sense, Mrs MacBride was redundant from the 26th May. The Tribunal, as to that, as we have already read that, Mrs MacBride was written to on 25th May confirming to her that she would not be slotted in to the IS/BS Post 14. She appealed against that and the appeal went against her on 22nd December and she was given notice specifying the 22nd December as her date of termination, although the Employment Tribunal accepted it should have said 31st December. The Tribunal did not determine the point as to redundancy or redundancy situation simply by looking at the position as at 26th May 1995. In terms, they referred to redundancy existing as at 31st December. Thus, in a passage we have already read, they said in para 33 "In the event her employment was terminated on the ground of redundancy on 31st December 1995". And, equally, in another passage already read, "there was no alternative but to dismiss Mrs MacBride for reason of redundancy on 31st December 1995". Moreover, the Employment Tribunal had entertained evidence as to the position in the Respondent Employer's case in between May and December. Thus, one sees reference to the 1st June 1995, where in para 22, they say "on the 21st June 1995 Mrs MacBride was placed on the Local Authority's Redeployment Register". There is also reference to July 1995 where, in para 26, they talk about "protracted negotiations". There is a reference to August 1995 and, looking at para 46, it is said "She was interviewed by the Respondent's Occupational Health Physician to ascertain whether she was fit to attend the hearing but at all time she refused after 8th August to provide any medical certification regarding her state of health". There is reference to November 1995 in para 29 where they say "On 20th November 1995 Mrs MacBride attended the Council's doctor who confirmed that she was fit to attend a disciplinary hearing".

[20]There is evidence (which I should have mentioned earlier to keep the chronological order) as to October 1995, where in para 46, they say:

"In October 1995 she appears to have had a bizarre conversation with Ms Penny Witham, which was tape recorded without Ms Witham's knowledge. The tape recording goes into many pages and Mrs MacBride does not appear to have been coherent during part of this conversation."

[21]It cannot be said that the clock, so to speak, from the point of view of the Employment Tribunal's examination of events, stopped as at May 1995. There were a whole raft of findings in relation to the period after May 1995 and as we have indicated, the clear determination was redundancy as at the 31st December 1995. So, again, the point fails on the facts. The Employment Tribunal did consider matters after 26th May and concluded that there was redundancy as at termination in December 1995. There would seem to be no error of law on which Mr MacBride can usefully rely in this part of the case.

[22]We then move on to ground 2 (working through the grounds provided by the Preliminary Hearing) and that was as follows:

" ...... 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."

[23]We will not take up time by expressly reading into this Judgment Section 139(1) and paragraph (b) thereof but that is to be taken as if read into the Judgment. The Tribunal said in their para 43:

"We then considered whether there was a redundancy situation pursuant to Section 139(1)(b) of the 1996 Act and in doing so we considered in particular Safeways Stores Plc -v- Burrell [1997] IRLR 200 , latest reported case on the issue of redundancy of the Employment Appeal Tribunal. It was held in that case that the correct approach for determining what is a dismissal by reason of a redundancy pursuant to Section 139(1)(b) involves a three-stage process: (i) was the employee dismissed, if so (ii) 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 (iii) was a dismissal of the employee caused wholly or mainly by the state of affairs."

[24]In the passage we have already cited they went on to conclude, as we have already mentioned, that they found as a fact, pursuant to Burrell, that there was a redundancy situation and they also asked whether it was caused wholly or mainly by that state of affairs and answered the question by saying:

"Clearly, we find as a fact that this was so."

[25]So they had expressly referred to the relevant section. They had been referred or referred themselves to appropriate authority and they came to a conclusion on the footing of that direction. We cannot see any error of law in that.

[26]Mr MacBride says that there was evidence that other people were taken on at the school or recruited to fill posts in other departments, but the Employment Tribunal had held that the Employer was justified in its view that Mrs MacBride could not be redeployed. The fact that there were vacancies in other departments does not of itself negate her redundancy or the impossibility, as the Employment Tribunal found it, of her being redeployed. Both of those are matters of fact and it is, of course, the province of the Employment Tribunal to find the facts.

[27]The next ground, ground 3 as I will call it in the Preliminary Hearing sequence is this:

"It is concerned with the alleged failure, as Mr MacBride put it, of the Tribunal to consider properly whether the procedure followed by the Employers had been fair."

[28]An elaborate process was available to be gone through in relation to redundancy and selection for redundancy. First of all, volunteers were sought; then representations were received as to "slotting in", as it was called; then there was consultation with the unions. That was done; there were some seven meetings that were implemented. If someone lost the first round, so far as "slotting in" was concerned, appeals against slotting were possible and, also, representation by union officials was open to employees in the course of the matter.

[29]Now the position was that the Employer was in a difficult position. Serious allegations had been made against Mrs MacBride by a pupil. We are not saying whether those were well-founded or without foundation: that is not a matter in any way for us. But a member of the staff had been given the task of looking into the complaint and three allegations had emerged as appropriate to be gone into as a matter of disciplinary investigation. What the Tribunal said at para 25 was this:

"The three allegations against Mrs MacBride were: (i) that on 17th May 1995 she assaulted a student, AA by kicking him; (ii) on 22nd May 1995 she improperly attempted to induce AA to withdraw the allegation by linking his allegation to an intention on her part to ask his parents for £45 in payment for computer equipment which she alleged he had damaged , and (iii) that on 22nd May 1995 she falsely claimed at the interview with Mr Atkinson that AA initiated the conversation that led to the attempted withdrawal to the allegation of kicking."

[30]Now we are not concerned in any with the truth or falsity of those matters, but, plainly, they put the Employer into a position in which the allegations had to be investigated. There were some later negotiations that seem to have run into the sand. In para 26 the Tribunal spoke of a protracted series of negotiations and there was an attempt, they said, to reach and negotiate an amicable settlement but Mrs MacBride rejected the Respondent's proposal and the Respondents rejected Mrs MacBride's counter-proposal. If Mr MacBride is right, as he has told us, they were rather abrupt "take it or leave it" negotiations but, at any rate, they failed and in the meantime, the position was that Mrs MacBride was suspended. It was not that the Employer deliberately or at all withheld or delayed matters. What the Tribunal said as to that was in para 46:

"We note that Mrs MacBride delayed the disciplinary process. The Respondent appears at all times to have been anxious to pursue this process but whenever a meeting was arranged it was deferred at the request of Mrs MacBride or her representative."

[31]They were the facts found by the Employment Tribunal and they are the masters of fact. There was a difficulty in that Mrs MacBride declined to provide medical information in support of her position. We have read already that she was interviewed by the Respondent's Occupational Physician and had refused, after 8th October, to provide any medical certification regarding her state of health. The Tribunal concluded, as we have mentioned, that it was reasonable for the Respondents to have dismissed Mrs MacBride by reason of redundancy, bearing in mind the circumstances of the case. The Tribunal had regarded the case, as it seems the Employer had, of being a case in which Mrs MacBride was suffering from (if that is the right term) long-term sickness leave, rather than merely being suspended. What the Tribunal says is:

"Although Mrs MacBride was on suspension we find it reasonable for the Respondent to assume she was also on long-term sickness leave."

[32]So that was found to be a reasonable conclusion. But Mrs MacBride would not or could not substantiate that to be the case because, as we have indicated, she refused to provide the medical certification that would support that. Mr MacBride says by way of complaint that the redundancy process was not fairly worked through and that it was not exhausted as it should have been. One should have had the whole process worked through, he says, but the reason why it was not exhausted, as found by the Employment Tribunal, was that Mrs MacBride was both suspended and claiming or suffering a condition that justified long-term sickness leave but would not provide the medical substantiation which one could reasonably expect in that regard. We have looked at the process that the Employment Tribunal itself examined. We do not find any indication of unfairness to the Applicant or, at any rate, more properly, we should say that we do not see any error of law available to Mrs MacBride in this third ground.

[33]That leads us then onto the fourth ground. This is a ground that was drafted by the Employment Appeal Tribunal that heard the Preliminary Appeal, specifically to concentrate the case into the appropriate areas. So the Employment Appeal Tribunal itself provided this draft of the complaint that was allowed to go forward and it was as follows:

"The Industrial Tribunal erred in law in: (i) Failing to record any decision on the Originating Application of 21st March 1996; (ii) Finding contrary to the acknowledgement of receipt issued by the Industrial Tribunal London (North) on 21st March 1996 that the Originating Application of that date was not received until 28th March 1996 and consequently was out of time for events occurring before 29th December 1995; (iii) Failing therefore to consider as relevant to the Health & Safety Complaints events occurring on and between 22nd December and 28th December 1995. In particular, the Applicant's grievance letter of 22nd December 1995 and her dismissal by the Respondents on the same date; (iv) Asking themselves in para 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; (v) 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; and (vi) Wrongly addressing their attention only to the" serious disciplinary problems" in general instead of also to the specific incidents in which the Applicant believed herself to be in serious and imminent danger."

[34]A rather comprehensive fifth ground! The issues of Health and Safety and questions as to the suffering of any detriment on that account had been raised by Mrs MacBride's IT application, 20676/96. What the Tribunal said was this:

"The third application is case 20676/96. She brought this application under Sections 44(1)(c) and (e) and 101(e) of the Employment Rights Act 1996. She maintained that she had been unfairly dismissed and suffered a detriment because she brought Health and Safety issues before the Respondent and was victimised because of this."

[35]That particular IT.1 form, 20676/96, is stamped as received on 28th March 1996 and it is described in the case as the third application. Mr MacBride says that it was stamped in London or handed in at London and there is a receipt that seems to indicate that as at the 21st March, but it is the case that the actual IT.1 is stamped as received on 28th March.

[36]The Tribunal came to a number of conclusions on this subject. They held:

"We do not find Mrs MacBride was subjected to a detriment because she had pursued with the Respondent issues as to Health and Safety. They said the time limit for presenting a claim for detriment on Health and Safety issues pursuant to Section 44 is formulated in the same terms pursuant to Section 48(3) of the 1996 Act. We refer to Section 48(4)(b) of the 1996 Act which states that it was a deliberate failure to act shall be treated as done when it was decided on."

[37]They held that all matters prior to 29th December 1995 were out of time pursuant to Section 44 and 100 of the 1996 Act and they said:

"We do not find as a fact that they are continuing acts of discrimination. They are individual acts. The Applicant maintained that the Respondent failed to investigate her complaints. Failure to investigate does not make an act a continuing act. The individual acts in themselves do not form a part of a concerted action on the part of the Respondent and this we find as a fact. The complaints are out of time. It was reasonably practical for them to have been presented in time. Mrs MacBride was in receipt of advice throughout."

[38]After referring to part of Section 44(1)(e) the Tribunal concluded:

"Mr Stilitz submitted that the disciplinary problems at the school and other Health and Safety concerns did not constitute an imminent danger within the meaning of the Statute. There is no doubt that there were serious disciplinary problems at the school. However, we do not find as a fact that they constituted serious and imminent danger. The risks must be immediate. We are talking about issues of fire or other similar hazards."

[39]They then referred to 44(1)(c) as well and after quoting 44(1) they said:

"Clearly, this is not applicable in Mrs MacBride's case. There was an active Health and Safety representative at the school, Ms Jenny Pamplin, who seems to have guarded her responsibilities jealously. She had in the past asked Mrs MacBride to work through her and informed her that Health and Safety matters were her responsibility and not Mrs MacBride's. We note that although Mrs MacBride was under suspension and had written to the Respondent concerning Health and Safety matters she could have, nevertheless, telephoned Miss Pamplin and could have communicated through her."

[40]The Tribunal had in mind the similar provisions of Section 100 as they refer specifically to that section. The Employment Tribunal rightly referred to "serious and imminent danger" and they referred in the passage we have quoted to "fire and other similar hazards", but they do not say that only "fire and other similar hazards" were capable of being reasonably believed to be serious and imminent. As we read it they were just giving a vivid example of what might properly be reasonably believed to be a serious and imminent danger and they were doing that by contrast with the more ordinary run of disciplinary problems. It is, of course, not enough for these purposes for Mrs MacBride to have believed there to be circumstances that represented a serious and imminent danger. She must have believed that reasonably . To that extent, it was relevant to say that there was no such serious and imminent danger. But in any event the position, as Mr Stilitz argues, seems here to be that the case failed on the merits. There was no finding that Mrs MacBride had reasonably believed that there was serious and imminent danger. The Tribunal, of course, mentioned disciplinary problems but it seems to us that it does that by way of showing the sort of thing that it would have been possible reasonably to have believed. They did find the school to have disciplinary problems and that is not in issue. Whether there was a reasonable belief in Mrs MacBride was not found as a fact and it was essentially a matter of fact for the Tribunal to have directed themselves to. The Tribunal had the appropriate sections of the legislation in front of them. They in terms refer to it; it cannot be said that it was not in their minds and they concluded, in the passage we have already read:

"We do not find that Mrs MacBride was subjected to a detriment because she had pursued with the Respondent issues as to Health and Safety."

[41]That is a conclusion on the merits, unaffected as it seems to us, by questions of date or of when time started running and which claims were within time and which claims were not. We are bound to say we have difficulty coping with Mr MacBride's position that seemed, at one stage, to be that the fact that Mrs MacBride had sent a grievance letter to the Employer on 22nd December could itself be regarded as some form of detriment she suffered but he made the matter clearer in reply. It is to be remembered throughout that the Employment Tribunal held that the dismissal was on the grounds of redundancy and not on Health and Safety grounds. Picking over the Employment Tribunal's reasoning with a fine tooth comb is precisely what the authorities tell us we must not do. Here Mrs MacBride's claims were investigated on the merits and dismissed on the merits, regardless, as it seems, of the particular date of their occurrence. There is nothing to suggest that the conclusion at which the Employment Tribunal arrived in this area was not properly arrived at or at any rate, certainly, there is no material which suggests that a Tribunal properly instructing itself could not have come to the conclusion to which this one came. We do not see any error of law in relation to what might broadly be called the Health and Safety angle.

[42]There was an objection that the decision itself (the very opening words) made reference to trade union activity but that the Extended Reasons were inadequate on the subject but, just to deal with the aspect of trade union activity, the Employment Tribunal did recognise that the first IT.1 had advanced a ground related to that subject because in their para 1 they say:

"In the first application, case No 20087/96, she [that is Mrs MacBride] maintained that she had been unfairly dismissed and suffered actual short of dismissal by reason of her trade union activities pursuant to Section 146(1)(b) and 152(1)(b) of the Trade Union and Labour Relation Consolidation Act 1992."

[43]The Tribunal did have that in mind and did come to a view on it. In para 35 they said:

"We considered firstly whether Mrs MacBride was discriminated against and suffered a detriment and dismissal by reasons of Section 146(1)(b) and Section 152(1)(b)" and on that, their eventual conclusion in para 36 was: ""

We do not find as a fact on the evidence that Mrs MacBride was treated in the way she was because of her trade union activities. We accept that an employee does not have to be a trade union representative in order to enjoy the protection of Section 146 and 152. 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."

[44]There seems to be no visible error of law in that conclusion.

[45]We come on to the fifth of the 5 grounds. This, again, was drafted for Mrs MacBride by the Employment Appeal Tribunal at the Preliminary Hearing. It runs as follows:

"Having received unchallenged evidence from Christine Blower that the version put in evidence by the Respondent of a letter purportively written on 26th October to the Applicant by the Respondent's Head of Personnel was in a form last saved on the Respondent's word processor system on 9th January 1996 after 3 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 tended 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 26th October 1995, given notice of the termination of her employment to expire on 31st December 1995."

[46]As to that, the Tribunal said this in para 28:

"On 26th October 1995 Mrs MacBride was given notice of the termination of her employment to expire on 31st December 1995."

[47]And they refer to an exhibit. Mrs MacBride claimed that she had never received this document, although it appears to have been sent to her correct address. As already cited more than once, they concluded that she had been dismissed by reason of redundancy. They held that the letter incorrectly referred to the date of termination of employment as 22nd December but that clearly the date should have been 31st December. If there was to be a termination of employment, termination was to take effect at the end of each academic term. It is acknowledged by the Respondents that the notification was incorrect and, as has been said, Mrs MacBride was subsequently given an extra term's payment in lieu of notice.

[48]This point is raised by Mr MacBride partly to raise an issue as to the general credibility of the Employer's witnesses. It is, of course, a matter for the Employment Tribunal to determine who is credible and who is not, but it would seem that close investigation of the letter that is here in issue does not reflect in any useful way on credibility because the only person who would seem to been responsible for sending it, if it were sent, or drafting it, was Fran Setter, the Head of Education Personnel, Hammersmith & Fulham. She was not giving evidence. The position was that an application had been made by Mr MacBride that a witness summons should be issued in respect of her or, at any rate, that she should be brought before the Tribunal, but that was declined so she did not give evidence and accordingly, not only failed to give evidence in chief but was not cross-examined either, so it is hard to see how the credibility of the Employer's witnesses generally could have been put in issue by that letter. In any event, the precise date of termination was, no doubt, important to Mrs MacBride's contractual claims but, as it seems to us, was of little if any significance in relation to the non-contractual claims. The contractual claims were withdrawn from the Tribunal. It did not deal with them. The non-contractual claims which were before the Tribunal, do not have, as it seems to us, any vital component dependent upon the date of termination being either 22nd or 31st December. The IT.1s themselves specify as alternatives the 22nd or 31st December 1995 as the date of termination. Mr Stilitz argues, on behalf of the London Borough of Hammersmith & Fulham, that in any event the way that the Employment Tribunal dealt with the point was that letter in issue "appeared to have been sent to the correct address". It seems to us a point of no real consequence; even were it right, it would not materially assist Mrs MacBride on her non-contractual claims as it doesn't negate the possibility of a dismissal on 22nd December 1995. It does not seem to benefit her in any material way even were the letter not as it seemed to be and, in any event, as Mr Stilitz urges, it does not seem to be the case that it can fairly be said that there was no evidence whatsoever given on the point because the Employment Tribunal did conclude that it "appeared" to have been sent to her correct address. We do not find any material error of law in this area. That is the end of the fifth of the 5 grounds.

[49]We have now exhausted such permitted matters that were allowed to come forward to a Full Hearing. We are bound to say we have a good deal of sympathy with Mrs MacBride's position. Mr MacBride tells us, and we have no reason to doubt, that she was not only a good teacher but one of the very best at the school in question. No doubt it is also the case that the adverse decision of the Tribunal has hung over her to substantial disadvantage in the years that have followed. That a good teacher should be denied a teaching position is obviously a matter with which one can very readily have a good deal of sympathy, but Mrs MacBride has to understand the very limited role that we have. We cannot re-find the facts. We have to face the facts as the Employment Tribunal found them to be. Of course, there can be extreme cases where there was no evidence whatsoever for a finding of fact, or that, given the evidence that there was, a particular finding could not possibly properly have been arrived at, but we have not been able to detect any such extreme position.

[50]Taking the facts as they were found to be and not as we might have chosen them to be, we have not been able to find any error of law on which we can find in her favour and accordingly, notwithstanding our sympathy, we have to dismiss the appeal.