Halton College Of Kingsway v Keen [1999] UKEAT 576_98_1901

EAT
Halton College Of Kingsway v Keen
[1999] UKEAT 576_98_1901 · 1999-01-19

JUDGE PETER CLARK:

This is an appeal by the employer, Halton College of Kingsway (the College) against a majority decision of the Liverpool Employment Tribunal sitting on 3 & 4 November 1997 and 2 February 1998, that the applicant employee , Mr Keen, had been unfairly dismissed. That reserved decision with Extended Reasons was promulgated on 4 March 1998.

The Facts

The Applicant was employed by the College as a technician from May 1974 until his dismissal on 29 August 1997. At all relevant times he was a senior steward representing his fellow members of UNISON employed by the College.The Tribunal unanimously found, by way of background to the events of 1997 and the Applicant's dismissal that there was antipathy and antagonism between Mr Jenkins, the College Principal, and the recognised unions, including UNISON. Mr Jenkins was well aware as to the Applicant's position in relation to proposals that he, Mr Jenkins had for the future of the College. The Applicant opposed them.In early 1997 there was a reduction in funding for the College. In April the budget was notified to the College. In May the Human Resources Committee met and as a result it was decided that 63 part-time lecturer posts would be made redundant. The unions were informed of this decision on 20 May. On 5 June a different committee met to consider the budget for the following year. As a result of that meeting it was proposed that a number of full-time "permanent" staff would be made redundant.On 20 June the College wrote to all employees, and to the unions. On the same day a Form HR1 was provided to the Department of Trade & Industry by the College indicating the potential loss of 83 jobs, that is 63 part-time and 20 full-time jobs.The first meeting between management and the unions by way of consultation took place on 27 June. It was made clear that there would be 22 vacancies within the College to which those potentially redundant might be redeployed.A number of meetings ensued between management and the unions and also the College Staff Consultative Council. During those discussions it became clear what were the College's intentions concerning the five technician posts in the Faculty of Business, Humanities, Science & Technology, one of which was held by the Applicant. The intention was to declare all five posts redundant and to create three positions of "Instructor". Specifically, the Applicant was one of three technicians in the School of Technology, from whom one instructor was to be appointed.The Applicant opposed those proposals in his capacity as trade union representative during the consultative meetings. Nevertheless, the plan proceeding and the Applicant applied for the Instructor post.A job description and person specification for the post of Instructor was developed by Ms Tyler, Head of Faculty, Mr Massie, Human Resources Manager and Mr John Morris, the Head of the School of Technology. Each of the three applicants for the post, the Applicant Mr Jeremy Morris, a part-time lecturer, and Mr Lycett, was interviewed on 22 August 1997. We interpose that Jeremy Morris was the brother of John Morris, the Head of School, and accordingly the latter played no part in the selection process. Each Applicant was scored against the matrix of criteria formulated by the College. The marking was carried out in part by Ms Tyler and Mr Massie and as to the remainder by Ms Tyler alone. Jeremy Morris scored highest of the three and was appointed Instructor; the Applicant came second on the scoring matrix. On 29 August the College wrote to the Applicant dismissing him on grounds of redundancy.

The Complaint

By his Originating Application the Applicant set out the grounds of his complaint. He said in terms:
"My complaint is primarily that I have been chosen for dismissal on the grounds of redundancy because of my activities as an accredited trade union representative......"
Later he alleged;
"...There is clear evidence of anti-trade union policies and activities in the College which I believe have been instigated directly by the Principal."
He also contended that his dismissal was unfair for other reasons and summarised his case in this way:
"I believe that:
1. The justification for redundancies in terms of diminishing work was inadequate;2. The consultation which had taken place with my trade union prior to the dismissal was not meaningful, was not carried out in good time or at the earliest opportunity.3. My selection for redundancy dismissal was not made on objective criteria.4. My selection for dismissal was made because of my activities as an accredited trade union representative."By its Notice of Appearance the Respondent contended that the Applicant was dismissed by reasons of redundancy and that dismissal fair. It was specifically denied that the Applicant was "targeted" in any way.

The Tribunal Decision

The Tribunal found, contrary to the Applicant's case, that a redundancy situation did exist. The majority found that the dismissal was automatically unfair under the provisions of s.153 of the Trade Union and Labour Relations Consolidation Act 1992 (the 1992 Act); the minority member disagreed. Further, the majority would, in the alternative have found that had the reason for dismissal been simple redundancy, then the dismissal was unfair under s.98(4) of the Employment Rights Act 1996. Again, the minority member disagreed. He or she would have found the dismissal to be fair. The identities of the minority and majority members of the Tribunal are not disclosed. Having so found, the Tribunal adjourned the question of remedies.

Remedies Decision

The remedies hearing took place before the same Tribunal on 1 May 1998. The Tribunal's decision with summary reasons was promulgated on 12 May 1998. There is no quantum appeal against that decision as such.Based on the majority's finding that the dismissal was automatically unfair under s.153 of 1992 Act the Tribunal concluded:(1) that the Applicant was not entitled to a basic award, having received the statutory redundancy payment, which we assume exceeded the minimum basic award provided for in s.156 of the 1992 Act .(2) The Applicant sought an order for reinstatement or re-engagement. The Tribunal declined to grant that relief, but since he had requested reinstatement or re-engagement he received a special award under ss.157 and 158 of the 1992 Act of £27,500.(3) In addition, he received a compensatory award of £6,415.56, together with a sum representing loss of pension rights to be agreed between the parties.

The Appeal

Mr Hogarth accepted that no point was taken below, and therefore none is taken before us, that the Applicant and Jeremy Morris were not relevant comparators for the purposes of s.153. He also accepted that unless he could successfully challenge the majority's finding of automatic unfair dismissal under s.153, the appeal against the majority's finding of unfair redundancy dismissal under s.98(4) of the 1996 Act was rendered academic. In these circumstances we heard argument on the s.153 point first. Having considered those submissions we do not find it necessary to consider that part of the appeal which challenges the alternative finding under s.98(4).The thrust of the College's case before us is that it was not open to the Tribunal majority to draw the inference that the Applicant was selected for redundancy, when Jeremy Morris was not, by reason of his trade union activities, in circumstances where it was not put to the Respondent's witnesses, particularly Ms Tyler and Mr Massie, during the course of the hearing that that was their reason for selecting the Applicant for redundancy dismissal.The order of the division of this Appeal Tribunal presided over by Judge Hull QC at the preliminary hearing held on 17 July 1998 contains an express direction that the Chairman's Notes of Evidence were not necessary for this full appeal hearing. Mr Hogarth, who appeared on behalf of the College at that ex parte hearing is unable to recall whether he made application for those notes.We are therefore left with the witness statements, exchanged between the parties prior to the Employment Tribunal hearing, and forming the basis for the witnesses evidence in chief and extracts from the notes of Miss Whyte's cross-examination below, taken by her instructing solicitor. Mr Hogarth does not dispute the content of those parts of the notes which have been read out to us.It is quite apparent that the respondent's witnesses were aware of, and given every opportunity to deal with the allegation that the Applicant's trade union activities, and the attitude which he displayed to the Principal's vision for the future of the College, influenced their markings of him under the selection process. First, that case was pleaded in the Form IT1; second, the witnesses Massie and Tyler categorically denied that the Applicant's role as a trade union steward had any influence on his selection for redundancy in the witness statements which they read out as forming their evidence in chief before the Tribunal; and thirdly we are satisfied, those denials were properly tested by Miss Whyte in cross-examination below. The witnesses had ample opportunity to demonstrate to the Tribunal that their marking was objective, and uninfluenced by the Applicant's trade union activities. The minority member accepted those denials; the majority did not.We remind ourselves, first, that in cases of alleged discrimination, whether on the grounds of race, sex or trade union activities or membership, to which may now be added disability, it will be rare for there to be direct evidence of discrimination. Usually, it will depend on what inferences the fact finding tribunal draw from the primary facts. See Zafar v Glasgow City Council [1998] IRLR 36 . Secondly, that this is essentially an appeal based on the perversity ground. The parameters of that ground of appeal have been tightly drawn, see for example Piggott Bros & Co Ltd v Jackson [1991] IRLR 309. It is not our function to retry the factual issues.Was the majority entitled to draw the inference of selection for redundancy by reason of the Applicant's trade union activities? We are satisfied that they were. Against the background of the Principal's anti-unionism, directed, among others against the Applicant, it was open to them to find that that attitude had percolated down to those charged with carrying out the marking exercise and that, despite their denials, their view of the Applicant's trade union activities and the attitude which he displayed towards the Principal's vision of the future of the College, was the reason for their selecting him for redundancy. Further their reasoning is adequate looking at the Tribunal's reasons as a whole against the background of the totality of the evidence before the Tribunal. In these circumstances the appeal must be dismissed.