London Borough of Hackney v. Mears [1999] UKEAT 50_99_1503

EAT

London Borough of Hackney v. Mears

[1999] UKEAT 50_99_1503 · 1999-03-15

MR JUSTICE HOLLAND Mr R C Mears was employed from 4 November 1991 to 24 September 1997 as an Estate Cleaner with the London Borough of Hackney. Following the termination of his employment and by way of an IT1 dated 15 December 1997, he complained of unfair dismissal.. That complaint came before an Industrial Tribunal held at Stratford in an between March and June 1998 with the end result that the Tribunal ruled that he had been unfairly dismissed and further directed that a remedies hearing be held on 21 October 1998. There was no appeal against that finding.

On 21 October, the remedies hearing took place as directed and it resulted in a unanimous decision as follows:

"(1) the applicant be reinstated by the Respondent in his job as an Estate Cleaner and he shall be treated in all respects as if he had not been dismissed.

(2) the order for reinstatement be complied with on or before 2 December 1998.

(3) the applicant's application for back pay be restored before the tribunal on a day convenient to the parties with a time estimate of two hours."

The Borough appeal against this decision and that appeal has come before us this morning by way of a preliminary hearing. In conducting the preliminary hearing, our concern is as follows:

Is there a point of law arising out of the decision of the Tribunal, such as could find an appeal to this Tribunal? If we discern such a point of law, our direction has to be that there will be an inter-partes hearing, that is, a hearing at which the Applicant, Mr Mears would be represented so that this Tribunal can have the advantage of submissions by both sides. If on the other hand we cannot discern a point of law, then is our task to dismiss this appeal. This Tribunal has only jurisdiction with respect to points of law.

Turning then to the way the appeal is put, it is necessary to look first briefly at the approach of the Tribunal. It is important to note that the evidence that they heard was recorded as follows:

Paragraph 4

"The only oral evidence we heard was given by the Applicant and by Mr A Saunders, the Contracts Manager of the Respondent at the Andrews Road Deport and who gave evidence before us at the earlier hearing. Making our findings of fact, we have concluded that the evidence given by Mr Saunders does not assist us in deciding issues before us and his evidence that it would be impracticable to reinstate Mr Mears must be rejected. His knowledge of the available cleaning job vacancies in the Borough was incomplete as he could only give evidence of the situation prevailing at his own depot."

Turning then to the findings by the Tribunal, they are brief in terms and it is sensible to go immediately to them.

"The London Borough of Hackney is a major employer in its area and has 3 depots at which cleaning staff are employed. Cleaning staff are employed to clean estates, the streets and to collect refuse. The cleaning staff are employed in a pool and also in permanent positions. The remuneration paid to the pool staff is less than for permanent employees. At the Andrews Road Depot, there are nearly 200 employees employed doing various cleaning jobs and there are others employed in the other 2 depots, but the numbers involved in those depots are slightly less.

Following an agreement between the Respondent and the JNC made recently, pool staff are being recruited to fill permanent positions as and when they become available. Thus, there are no permanent positions currently available at the Andrews Road Depot. However the position at the other depots is far from clear. We find that the Respondent will be able to reinstate Mr Mears immediately or at the very latest, when the next vacancy in a permanent post becomes available. The reason given by the Borough as to the impracticability of employing Mr Mears as an Estate Cleaner on the basis that permanent vacancies are not available or that there will not be sufficient supervision were he to be reinstated, are untenable. On the Borough essentially concerned with is that maybe difficulties of Mr Mears providing proper service within the Borough and that any failures on his part might have far reaching consequences for everyone employed in cleaning services. We do not feel that the Borough are justified in coming to this view in the light of findings made by us on liability in this case and we find that it would be practicable for the Respondent to comply with an order for reinstatement."

The point taken by Mr Heath on behalf of the Borough is centred upon section 116 Employment Rights Act 1996. So far as material, this reads as follows:

"(1) in exercising its discretion under section 113, the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account (a) whether the complainant wishes to be reinstated; (b) whether it is practicable for the employer to comply with an order for reinstatement; and (c) where the complainant caused or contributed to some extent to the dismissal, whether it be just to order his reinstatement.

(2) if the tribunal decides not to make an order for reinstatement, they shall then consider whether to make an order for re-engagement and if so, on what terms."

Mr Heath's short point is this, that the Tribunal misdirected itself. In particular it misdirected itself as to the burden of proof that arises with respect to the application of section 116. His submission is that on a careful reading of the extended reasons, the Tribunal appears to have proceeded on the basis that throughout the burden of proof was on his clients. He would submit that in applying 116, there must be a burden of proof on the Applicant, that is on the person seeking reinstatement. He acknowledges that there could come a later stage covered by section 117 at which his clients would have a burden of proof. That point has not, he would submit, so far arisen.

We have listened carefully to this argument, courteously advanced, but we have to reject it. Insofar as there is a burden of proof point here, in our judgment the Tribunal was entirely justified in regarding it as fulfilled. The findings of fact already made by that Tribunal and already cited in this judgment, served to show that the Borough is a major employer with a substantial number of staff and a presumed regular turnover of such arising through the normal course of events. In such circumstances, leave aside any argument of practicability on the part of the employers, there must be ample scope for reinstatement more particularly when, as the Tribunal added, a permanent post becomes available. It is through that finding that the Applicant, in our judgment, discharges whatever burden of proof is put upon him by section 116. Thereafter it was for the Borough, if it saw fit, to rebut the presumptions thus arising. This it sought to do by evidence from Mr Saunders, but as the passages in the extended reasons - (again already cited in this judgment) demonstrate, it found his evidence less than convincing when it came to rebuttal. Thus it was that they felt entitled to make the finding that is under appeal. We cannot impugn that entitlement.

As we observed in the course of argument, it would have taken a fairly remarkable set of findings of fact on the part of this Tribunal to enable it to reject reinstatement as an option given on the one hand, the experience of Mr Mears in this field and on the other hand the size of the Respondent's organisation, the number of cleaning staff and the inevitable turnover on such on a regular basis. All that is by way of comment: essentially for this appeal, we cannot discern the point of law that Mr Heath invites us to find exists, and thus it is that we can see no basis here for an inter-partes hearing. That leads us, as already explained in this judgment, to the only remaining course open to us and that is to dismiss this appeal.