1) LONDON BOROUGH OF BRENT 2) MS L THOMAS v 1) MS J WELLINGTON-DAVY [2000] UKEAT 0494_99_1605

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 0494_99_1605Case No Appeal No. EAT/0494/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) LONDON BOROUGH OF BRENT 2) MS L THOMASAPPELLANT1) MS J WELLINGTON-DAVYRESPONDENT
Before
Mr Justice NelsonLord Davies of CoityDate 16 May 2000
[1]APPEARANCES For the Appellants MR S DEVONSHIRE (of Counsel) Instructed by: London Borough of Brent Brent Legal Services, Town Hall Annexe, Forty Lane, Wembley HA9 9HD For the Respondents MR M WESTGATE (of Counsel) Instructed by: Legal Services UNISON 1 Mabledon Place London WC1H 9AJ MR JUSTICE NELSON: This is an appeal by the London Borough of Brent and Lucille Thomas against the decision of the Employment Tribunal on 24 February 1999 when it unanimously found that the four employees before it had been unfairly selected for redundancy and discriminated against on the grounds of race and in the case of one applicant, on the ground of sex as well. This appeal relates to only of those applicants, Mrs Jean Wellington-Davy. It is contended that the Employment Tribunal misdirected itself on law, made perverse findings and gave inadequate reasons for its decision, when finding that the applicant had not freely volunteered for redundancy, but had been forced into it by undue pressure from the employers. No appeal is made against the findings that the process of selection for redundancy was arbitrary and that racial discrimination should be inferred. In its decision the Employment Tribunal summarised the nature of the claim by Mrs Jean Wellington-Davy as follows: 4. "Ms Jean Wellington-Davy claims that she was unfairly selected for redundancy and also that she was discriminated against on the grounds of her race. In her case the Respondents deny that she was dismissed and allege that she volunteered for redundancy and left the Respondents' service by mutual agreement on 21 September 1997." In paragraph 6 of their decision the Tribunal state as follows: 6. "In the case of Ms Wellington Davy, she was unfairly targeted for redundancy and her subsequent resignation was to avoid the ignominy of dismissal. Discrimination it was alleged, occurred against all four applicants because other reasonable options which were discarded, meant that there was discrimination against the African and African-Caribbean staff with the intention by Ms Thomas of protecting white staff who were also protected by the cut-off date and the selection from a self-defined pool. If the pool had enlarged to include senior social workers and team workers and team managers there would have been more white staff in the pool for selection. There was also a failure to adopt or examine the last in first out principle and that white staff on temporary or short-term contracts were protected. White staff, it was alleged, were prevented from leaving, even though they had volunteered for redundancy. It was not normal policy to dismiss staff who did not have a social work qualification." Then at paragraph 8 of the decision the Employment Tribunal describes how Miss Lucille Thomas gave the principal evidence on behalf of the Respondents. They described the selection criteria for redundancy, the four criteria as follows: 8. "First, any employee who did not have a social work qualification; secondly, had a current disciplinary record or had been or was being dealt with through the incapability procedure; thirdly had a poor attendance record; or fourthly; had had a poor appraisal."[2]In the case of Ms Wellington-Davy, she was identified, as the Employment Tribunal rightly stated, by her record of sickness absences. In paragraph 10 of their decision the Employment Tribunal said that in their opinion, Lucille Thomas' evidence was:
"extremely unsatisfactory."
They described her as having a very selective memory about what had gone on and that she clearly supplied inaccurate data when answering the questionnaire. They concluded in relation to Ms Thomas' evidence by saying: 10."We did not, for these reasons, regard Ms Thomas as being a satisfactory witness, and it is in the light of these criticisms of her evidence that we pass now to a consideration of the selection for redundancy of the four Applicants, not forgetting that in the case of Ms Wellington Davy we do have what appears on the face of it to be a voluntary resignation." Their actual decision insofar as Ms Davy is concerned is set out in paragraph 13 of their decision. They said: 13. "We turn to the question of Ms Wellington Davy, against whom it is said that she freely and voluntarily resigned. There is certainly a letter to this effect in the papers shown to us which will be found at page 221 of the agreed bundle. This gives Ms Wellington Davy's reasons for wishing to resign. She had been interviewed and had been told that the reason for her redundancy was because of her sickness although it was agreed by Ms Thomas in her evidence that the whole of Ms Wellington Davy sickness was due to gynaecological problems which were properly certified. Ms Davy said in evidence that she had decided that so much pressure was being put on her together with the fact that she had definitely been told that she had been selected for redundancy, that she decided to volunteer. It is clear from the authorities and particularly the judgments of the Court of Appeal in Birch and another v The University of Liverpool [1985] ICR 470 that it is the duty of the Tribunal to look at the substance rather than the form. It is necessary to examine the facts of each particular case to see whether, if the defence of resignation and no dismissal is put forward by the employer, that the resignation has been completely free and voluntary and has not been affected by any pressure put on the employee to resign. Here our finding is that there was such pressure. It may not have been overt pressure but it was certainly covert pressure. Ms Wellington Davy has already been told she had been selected for redundancy and given the reasons for it and decided, for various reasons which she described in her letter, to resign. She elaborated in evidence by saying, as we accept, that she felt that unjustified pressure had been put on her in connection with her selection for redundancy and she therefore decided to resign rather than continue to remain employed for the period of notice. She also did not wish to receive a reference which indicated that she had been selected because of her poor sickness record. Our finding is that the resignation was not free and voluntary. It was forced upon this Applicant because of the actions of the Respondents against her and she must be regarded as having been dismissed. It was intended, apparently, to dismiss her for incapability because of unsatisfactory sickness absence. Our finding on this is that the Applicant had been absent from work but this absence was entirely certified and was due to gynaecological problems. There seems to have been no effort whatever to investigate this but simply a blanket of labelling of the Applicant as incapable because of sickness, whereas the matter ought to have been properly investigated, particularly as other records shown to us indicate a significant uncertificated absences. Our finding is that the dismissal was unfair."[3]In the matter was before the Employment Tribunal it was submitted on behalf of the now Appellant's, that on a true analysis there was no dismissal but a mutual termination by agreement as set out in IT3 and alternatively, Ms Wellington Davy was dismissed but having freely volunteered could not sensibly maintain a claim that she was unfairly selected or racially discriminated against by reason thereof. Before this Tribunal, only the second alternative ground has been put forward and contended for. The Respondent submits to this Tribunal that whilst, what is set out in the alternative was the correct question, it was in fact raised adequately by the Employment Tribunal and in effect considered by them, even if it had not been set out as such in terms. The Appellant contends that the Employment Tribunal only looked at causation, that is "the resign or be dismissed" issue and did not go on to consider whether the employer acted reasonably in all the circumstances: that is, was it reasonable to terminate the employment by reason of redundancy, when the Respondent had volunteered for redundancy and had been supported in that by the Union. In particular, the Employment Tribunal should have considered the special circumstances put forward by the Respondent in her letter of 18 July, i.e the risk of her not being made redundant if she did not volunteer, and her union support.[4]The three grounds of misdirection in law, perversity and inadequate reasons overlap and the evidence and material relevant to all three, is in essence the same. The Respondent was informed that she had been chosen for redundancy on 16 July 1997. A meeting took place between her and Ms Lucille Thomas at which redundancy was discussed. There is a dispute over precisely what transpired at that meeting and it is clear, that as a whole, the Employment Tribunal preferred the evidence of the Respondent to Ms Thomas. The next evidential matter is that on 17 July 1997 the Union wrote in the following terms. The letter was from UNISON and signed by Mr Stuart Barber, the Regional Officer and addressed to Ms Lucille Thomas. Mr Barber wrote as follows:
"With relation to the letters which have been sent to the various members of staff, 6 in total, I wish to make to the following comments; (1) Miss S.D. – Selected on basis of personal circumstances He then sets out the facts, as he understands them in relation to Miss S.D. "(2) Miss R.B. - Selected on basis of Incapacity (3) Miss J.W. - Selection on basis of Sickness (4) Ms S.M. - Selection on the basis of Lack of Qualifications (5) Ms B.O. - Selection on basis of Discipline"
In relation to those matters it is only necessary for this Tribunal to set out the detail of what was said in relation to Ms Wellington Davy and the quote from the letter from the Union is as follows:
"Miss JW –Selection on basis of Sickness To my knowledge this individual has met you and indicated that she (like Miss S.D) has her own 'special circumstances' and as such is volunteering for redundancy. I trust her application will be honoured."
It is to be noted from this letter at page 215 of the bundle that it appears that the only person who volunteered was Ms Wellington Davy. The next evidential matter is a letter of 18 July 1997 sent the following day to Miss Lucille Thomas from Ms Wellington Davy herself. That letter states:
"Dear Lucille Further to our meeting on 16 July 1997 to discuss the redundancy proposal, I indicated to you that I would like to be made redundant. You told me that making me redundant would be subject to a member of staff tendering their resignation. That is, if the person resigns, you will have to withdraw my redundancy notice. You advised me however, that if there was anything in my personal circumstances which warrants consideration, thus justifying my case to be made redundant, I should put it in writing and so should reach you no later than 5pm on Friday 18 July 1997 and I hereby adhere to this. I explained to you that my husband will be returning home to Jamaica where he has already secured a job and his delay in returning is due to my impending operation relating to my gynaecological problems. The plan is for our 6-year-old daughter to go home with my husband. Getting the redundancy would provide me with the opportunity to go home and settle my daughter in school and help her make the transition into her new life. I will also be able to take time out to fully recuperate from my illness. I do hope that you will favourably consider my case. I await your response. Yours sincerely Jean Davy."
[5]The first paragraph and the third and fourth paragraphs are not on the face of it consistent with the Respondent's case as they not merely make no mention of her feeling of undue pressure, as her reason for volunteering which she gave in evidence, which may as the Respondent here submits be capable of being explained by the nature and character of this Respondent and the circumstances in which she found herself, but the letter also gave positive reasons for her wishing to take redundancy. Clearly, these two letters were central to the Employment Tribunal's findings and indeed went to the heart of their decision, namely the Respondent's state of mind when considering what to do about redundancy. The Employment Tribunal considered the evidence and we have before us the Chairman's notes, which include notes of the examination in chief and the cross-examination of Ms Wellington Davy. At page 39 of the bundle, Ms Wellington Davy described the meeting on 16 July as being something she felt she could handle on her own.[6]There was a heated discussion, she was very upset, and no explanation was given about how it had been determined as to selection. She said:22. "In June I had been sick since April. I was disgusted by the referral to occupational health. The doctor also felt that I had been victimised."23. "Rumours were spreading that I had been suspended. I was feeling insecure. Everyone seemed to wanted me out. I felt panicked." 29. "The hidden agenda was to get rid of black staff." When she was cross-examined she said:
"I have been off sick for 73 days between 1 April and 4 July. My husband obtained a job in Jamaica about February 1997. My daughter was going also. I wanted to go to settle my daughter in. We would have discussed an extended holiday."
She said that she was aware of some correspondence by UNISON about redundancy and a meeting was arranged for 16 July. She said: 15. "I was told I was selected. I did not say in terms that I wanted redundancy. It occurred in a heated conversation. I had intended to ask for extended leave." In relation to the letter of 18 July from which I have just quoted at page 221 of the bundle, she said: 15. "This letter was written after a meeting." 15. "I did not consult with my Union before over this. I agree that I could have consulted UNISON. I volunteered under duress. The reason for not applying was not that I had volunteered to go. In hindsight I can see the Respondents could take it at its face value."[7]So that was the evidence that was before the Tribunal, together with the statements of the parties which constituted their evidence in chief and which raised the matters that have been given in evidence. In the case of Lucille Thomas' statement, she referred in that to both letters from the union of 17 July and from the Respondents of 18 July. I turn now to consider the three grounds of appeal. Firstly, misdirection as to law. We are satisfied that the Employment Tribunal should have and did not ask itself the question, whether on the evidence as a whole, the employer had acted reasonably in treating the redundancy as sufficient reason to dismiss the Respondent. It is however, as the Respondent submits, correct that imposing pressure or knowledge of an unfair decision made to dismiss, may render a voluntary redundancy unfair. Much will depend on the facts of the individual case. On balance, not without hesitation, we have concluded that although their approach to the question to be asked was on the face of it wrong, in that they did not ask separately whether the employer acted fairly and reasonably, the Employment Tribunal nevertheless effectively answered the correct question when considering whether the resignations were forced or voluntary. Next, perversity, which I consider in conjunction with the third ground namely inadequate reasons being expressed in the decision itself. It is, rightly as Mr Devonshire concedes, a high hurdle test; many different phrases have been used in order to describe what must be established before the Employment Appeal Tribunal can interfere with the decision on the facts of an Employment Tribunal, on the grounds of perversity. It has to be "certainly wrong" for example, or "plainly wrong" or "something which offends reason." It is not enough if this Tribunal thinks that it is wrong, there has to be more.[8]We are conscious of the fact that the Employment Tribunal heard oral evidence and we did not and that disadvantage alone, makes us diffident about finding that the decision was on the facts of this case perverse, even though it seems, on the face of it to fly in the face of the Respondent's own letter and the unions letter. We are however satisfied that the Employment Tribunal failed to give adequate reasons for their decision, so that it is not clear why the Respondent won or the Appellants lost. Nor does it appear to us that the Employment Tribunal properly took into account all the relevant material before it. We have had the case of Martin v Glynwed Distribution [1983] ICR at page 520 cited to us. This case reminds the Employment Appeal Tribunal that:
"It is no part of the duty of the Tribunal in setting out its reasons to record all the evidence. In practice in telling the story, the Tribunal will often advert to parts of the evidence , but no court having an appellate jurisdiction limited to questions of law is entitled to assume that this is the totality of the evidence." "
So far as the findings of fact are concerned, it is helpful for the parties to give some explanation for them, but it is not obligatory." It is submitted that on the facts of this case, adequate albeit not entirely full reasons were given, and that in the circumstances it would be wrong for this Tribunal to interfere. It has also been submitted to us that the case of Martin does not amount to the sum total of jurisprudence on the question of adverse findings and the extent of this Tribunal's power. A party is entitled for example to know, (this is trite law), why it has won or lost and be satisfied that all relevant material has been properly considered. The Respondent says the Employment Tribunal has implicitly referred to the union letter and expressly referred to the Respondents letter. But we are not satisfied that the Employment Tribunal had in mind the union letter at all, which in itself renders their decision flawed and we are not satisfied that they gave proper consideration to the Respondents letter.[9]There is absolutely no reference, expressed or in our view implied, to the union letter of 17 July 1997, yet without consideration of that letter in conjunction with the Respondents own letter of 18 July, we cannot be satisfied that the Employment Tribunal had in mind all material matters which, were relevant to its consideration of the evidence. It was, as is submitted by the Respondent, right to say that the union letter was indeed before them and they must have considered it, the Respondents submits, but we are not satisfied that this is so. There is a real danger that it was not considered at all or that its importance in conjunction with the Respondent's letter was overlooked. Why otherwise was it simply not referred to? The Tribunal does not appear to have considered when looking at the letter from the Respondent herself either the first or third or fourth paragraphs. The first paragraph far from suggesting a forced resignation suggests a decision to take the opportunity to resign and seek to ensure that it did not disappear. Nor in terms were the third or fourth paragraphs of the final letter considered; they refer to the circumstances for the Respondent wanting to take redundancy. We are not satisfied that this letter was given proper consideration from the reasons expressed in the Tribunal decision and we are not satisfied that any or any proper consideration was given to the union letter. A sensible reading of the decision as a whole does not make it clear why the letters were discounted, if in the case of the union letter it was even considered at all, and hence does not make it clear why the Respondent won and the Appellant lost.[10]For these reasons, it is the view of this Tribunal that the decision of the Employment Tribunal was flawed. In those circumstances there is no option but to quash it. The order that we have in mind, based on the submissions before us, is that the matter be sent to a differently constituted Employment Tribunal for a rehearing, but I will hear if any submissions wish to made on that, in particular by Mr Westgate.[11]It is our decision that this matter would be better remitted to a fresh Tribunal for rehearing and that is the order that we make.