MS K BEAUMONT v CUMBRIA CONSTABULARY [2000] UKEAT 1064_99_0404

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1064_99_0404Case No Appeal No. EAT/1064/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS K BEAUMONTAPPELLANTCUMBRIA CONSTABULARYRESPONDENT
Before
Mr Justice Lindsay Miss A MackieDate 4 April 2000
[1]APPEARANCES For the Appellant MR CHRISTOPHER GRAHAM (Solicitor) MESSRS FORD & WARREN Westgate Point Westgate Leeds LS1 2AX MR JUSTICE LINDSAY (PRESIDENT) On 22 April 1999, Karen Beaumont lodged an IT1 complaining of "unfair dismissal/interim relief on grounds related to trade union membership and activities."[2]To give the flavour of the complaint without necessary reading all of it (because there was quite an expanded box 11) she said that until her dismissal with effect from 16 April 1999 she had been employed as a Principal Researcher and was a member, shop steward and Executive Committee Member of the Respondent's recognised trade union.[3]She said that, prior to her dismissal, in July and August she had represented a member of the recognised trade union in relation to allegations of misconduct and as a consequence was criticised/challenged with regard to her right to time off work and accused of lying.[4]A little later she says that on 9 February 1999 she was notified that a decision had been taken to terminate her employment and that on 15 April 1999 the Respondent summarily terminated the purported consultation process and that the Applicant was advised that her employment was to be terminated the following day. Then further or in the alternative she said that her dismissal was unfair and, more particularly, that her dismissal was notified and implemented without proper warning or consultation whether (whether collective or individual) and that no information had been provided with regard to her selection. No or no proper consideration had been given, she said, to the availability of alternative employment within the Respondent's organisation. That is not the whole of her complaint but gives something, I think, of the flavour.[5]There is an undated IT3 that says that the Respondent will contend that the Applicant was fairly dismissed on 15 April 1999 on the grounds of redundancy, that she was made redundant together with the other Research Officer and other members of staff as a result of an anticipated significant reduction in the funding of the constabulary, a requirement to make "efficiency savings" and the re-organisation and rationalisation of the departments of the constabulary including the Planning and Review departments. Paragraph 5.20 of the undated IT3 says that by a letter of the 15 April1999 the Applicant was informed that her selection for redundancy had been confirmed and that since the consultation process had extended beyond the original date given for the termination of her contract, 7 April, her contract would be terminated on the grounds of redundancy on 16 April 1999.[6]Again, that is by no means the whole of the contest, but something of the flavour of the case should be understood from those references.[7]Ms Beaumont had asked for interim relief and on 13 May there was an application for interim relief heard by a Chairman alone, Mr Trotter; relief was then refused but directions were given and apparently were agreed that the hearing should begin on 7 June. On 7-10 June 1999 there was a hearing at Carlisle. Both sides were represented by Counsel.[8]On 1 July there were quite extensive Extended Reasons from the Tribunal, some 11½ closely typed pages. The decision was unanimous. It is the decision of the Chairman N W Garside and two members Mrs B Dunkerley and Mr M A Hubbold. The unanimous decision was that the Applicant was fairly dismissed.[9]On 10 August there was a notice of appeal. On 20 October there was an affidavit by a witness Mr Thomson, claiming that the Tribunal had been biased in favour of the Cumbria Police and there is another affidavit from Ms Beaumont saying, inter alia, that her side of the case, so far as concerned individuals involved, were intimidated by the Chairman. We have detailed comments from the Chairman and the only one I will read for the moment is this:
"Mr Horn who represented the Applicant presented [Ms Beaumont's] claim with vigour, effectively and very professionally. It was clear that he fully understood the evidence and had mastered his brief. The Applicant could have had no complaints at all in the way that she was represented at the hearing."
[10]We have considered the affidavit and the Chairman's response to it and, without going into detail through the pages of complaint and response to complaint, we do not see it as possible to hold that this is a case where there was material bias or misconduct. Indeed Mr Graham, who has appeared for Ms Beaumont today, has not emphasised that part of the case.[11]However, we have here in front of us two serious and effective series of arguments on Ms Beaumont's behalf. First of all those in the Notice of Appeal itself and secondly, that which Mr Graham has urged before us today. Looking at the Notice of Appeal, which was prepared by Ms Beaumont and specifies grounds which exist in the sense that they have not been formally abandoned by Mr Graham and hence which need to be commented upon by us it alleges reasons why, it says, the hearing was not fair. It says that "On the first day of the hearing, [7 June] my Unison representative (Mr Tim Carter) contacted the Tribunal office in Newcastle to let them know he would not be able to attend the hearing due to illness and agreed with staff at that office to send a medical certificate. Meanwhile at Carlisle I turned up at the hearing centre to be told by a local Unison official that my representative would not be attending due to his illness, but that he had contacted the Newcastle office to let them know." That complaint is amplified.[12]The actual hearing, in terms of the substance of the case as oppose to procedural discussions about delay and documents, did not commence until 2pm on 8 June which would have been, in the ordinary course, the second day of the hearing. There were compelling reasons for going ahead there and then with the hearing. They are set out in the letter of comments that we have from the Chairman and as it transpires, as is shown from the quotation we have made from the Chairman's notes, eventually Ms Beaumont's case was effectively and professionally laid before the Tribunal.[13]Ms Beaumont says in her Notice of Appeal. "The fact that the case went ahead at all, in my opinion is perverse. I was significantly disadvantaged and was not able to rely on evidence that was material to my case as Mr Carter had some of it. I believe that the case should be heard again." It has to be remembered that when a Tribunal is faced with a request for an adjournment it has to have in mind not just the interests of the applicant for that adjournment but the interests of both sides. It has a discretion to exercise; it is a very broad discretion. If it can be shown that in the exercise that discretion it took into account matters which should not be taken into account, or failed to take into account that which should have been taken into account, well then, the matter can be properly be described as an error of law. But what is the error of law here? There is no allegation that matters that should not have been taken into account were or that matters which should have been taken into account were not and, even if that had been said that it would have had to be properly proved. We see no error of law and we emphasise that it is only errors of law with which we can deal, in the Tribunal having dealt with the matter as it did. It heard an application for adjournment on 17 June; it arranged that the substantive hearing would begin midday 2pm on 8 June. There was, it is true to say, a renewed application on 8 June for a yet further adjournment but that was declined, but as we say, both sides' interests have to be considered in the exercise of the discretion and we have not been pointed to any reason of law that suggests that that decision was an error of law.[14]The second heading in the Notice of Appeal was "Evidence that was ignored by the Tribunal Panel. The panel overlooked a number of items of evidence in their assessment of this case, particularly that contained in both the Applicant's and the Respondent's bundles." It was also said "In addition a police officer lied on oath whilst giving evidence which I found disturbing and did not expect."[15]Then in the Notice of Appeal there follows a series of alleged errors of fact in the Tribunal's findings, including, for example, that the Respondents witness, Mr Kenny, lied on oath when he said that he was excluded from the process (meaning the process of selection for redundancy and termination). Now, again, we emphasise that we can only act upon errors of law. It is for the Tribunal to assess what evidence to believe and the weight to be given to particular parts of disputed evidence. Of course, if a material conclusion is come to for which there is no evidence at all or if a material conclusion is not come to even though there was unchallenged evidence which necessarily should have led to that conclusion, well then, there may be a situation in which an error of law grows out of the Tribunal's handling of fact but we have not been able to see that to be the case here.[16]Then there is a heading which Mr Graham did touch on, "New evidence since the hearing." Broadly speaking, events after a decision of a Tribunal or the hearing at a Tribunal are immaterial and stern tests need to be satisfied before evidence can be admitted after the hearing is concluded. We will have to return to that subject in relation to what Mr Graham has said to us today. It does not help, either, to seek, as Ms Beaumont does in her expanded Notice of Appeal, to play upon a simple confusion of names between Inspector Clayton and Inspector Crossley in the Tribunal's reasons.[17]Looking therefore simply at Ms Beaumont's Notice of Appeal we see no error of law but Mr Graham has urged further points upon us today and one of them is that when a further adjournment was refused, reasons should have been given for that and that it is an error of law not to have given reasons there and then. That represents, he says, an error of law on the part of the Tribunal.[18]We asked Mr Graham whether oral reasons were given for the refusal further to adjourn and he was unable to say whether that was the case or not. There is a newspaper report of the hearing on the first day but whether it is accurate or not we cannot say and it is not, in any event, in the form of evidence. It is not suggested that there was a request for written reasons to be given for the failure to adjourn and, as we have seen from the fact that Ms Beaumont's Counsel, Mr Horn, coped competently, effectively and vigorously with the case, that it would seem that no prejudice was suffered by reason of there not having been an adjournment, nor is any authority put in front of us that suggests that even in relatively transient interlocutory matters a written judgment needs to be given, even where it is not requested. We see no error of law in this area. True it is that parties are entitled to written reasons in many cases but where the case is simply an interlocutory decision to adjourn or not then we see no reason why it is an error of law not to give reasons where none is requested and where it is not shown that no oral reasons were given. It is worth commenting, in relation to postponement, we have heard nothing from Mr Horn. If Mr Horn had felt so seriously disadvantaged on 8 June at 2pm when the matter came forward again for hearing that he felt that he could not in justice present a fair case on Ms Beaumont's behalf, the proper course for him would have been there and then to apply for an adjournment and, failing getting it, to ask that the matter should be suspended so that there could be an immediate interlocutory appeal to the Employment Appeal Tribunal. Well, he did not get the adjournment but he made no such application and we have heard nothing from him as to the difficulties, if any, under which he was labouring. We do not find it possible to find any error of law in this part of Mr Graham's argument.[19]Mr Graham makes a case that fresh evidence should be admitted. The position as to evidence being adduced after the initial hearing has been concluded is broadly governed by a case know as Ladd –v- Marshall which has a number of tests within it and the first is that it must be shown that the evidence which is sought, late, to be adduced could not, had due diligence been applied, have been obtained and laid before the Tribunal by the time of the original Tribunal hearing.[20]The position seems to be that documents material to Ms Beaumont's case were in the hands of a Mr Carter, who had been the party who had originally been intended to represent her at the hearing. Mr Carter, late on it seems, went sick, but no one went to his house in order to get the documents and we have no affidavit before us today that indicates that even had due diligence been applied the documents could not have been laid before the Tribunal in time. Moreover, so far as time is concerned, the relevant time would surely have been at and after the 8 June, the second day of the hearing. There is no explanation at all why, during the continuing hearing, documents in Mr Carter's hands were not obtained and laid before the Tribunal. Had there been an explanation of exactly what attempts had been made to get them from Mr Carter and why they had failed a different view might have been taken but there is no evidence of that kind at all.[21]Mr Graham tells us that an affidavit could be obtained but we really have to judge the matter on the material that is presented to us today and on that basis we cannot find the first limb of Ladd –v- Marshall to be satisfied. Accordingly, do not need to move on to whether the other limbs of the test, such as relevance and the importance to the decision, would have been satisfied. If the first limb is not satisfied then the whole test is failed and, so far as we are concerned, judging the matter from the material put in front of us today, we must judge the first limb to have been failed.[22]It might be added that the papers said to be material to Ms Beaumont's case with which we are concerned are papers that were created, it seems, between July 1998 and April 1999 and there is no suggestion that they were refused to or hidden from Ms Beaumont or hidden from her advisers. It is simply that they were, as it seems, lying in Mr Carter's custody, but no approach was made direct to Mr Carter in the sense that his home was not visited to get them from him.[23]Then there is a point which Mr Graham frankly describes as a "perversity" point. It concerns the role played by Mr Kelly or Inspector or Superintendent Kelly. He obviously was at loggerheads with Ms Beaumont and, had he personally taken any significant role in her selection for redundancy and in the process that led to her dismissal, plainly there would be a strong argument available to Ms Beaumont that her position had not been fairly considered because it was being considered by someone who was hostile to her.[24]The Tribunal made findings of fact on this subject and in paragraph 26 of their long decision they say that "Because Mr Kelly had been excluded from her redundancy the procedure had to be carried out by Superintendent Taylor." In paragraph 25 they said "The decision to make Ms Beaumont and her fellow employees in the Research department redundant was carried out by others apart from Mr Kelly. We note that after the 14 December 1998, Mr Kelly was specifically excluded from any connection with Ms Beaumont's redundancy. He therefore, after 14 December 1998 had no influence whatsoever." Mr Graham contrasts that with paragraph 10 where there is a discussion of the appointment of the Training Evaluation Officer. Ms Beaumont was a candidate for that job, indeed a front runner, but eventually it went to Inspector Crossley and the Tribunal said of Inspector Crossley. He had been seconded to work in Pakistan and was due to return to the force in August 1999. He had previously been in the role of Training Evaluation Officer and had much experience. The Force Strategy and Policy Group approved Inspector Crossley to that post on 23 March 1999, Mr Kelly was a member of that group." So the argument runs that if Mr Kelly was member of the group that approved Mr Crossley, surely he had not been specifically excluded from any connection with Ms Beaumont's redundancy after 14 December 1998. The two passages are not mutually contradictory or exclusive; it is quite possible for Mr Kelly to have been a member of the Force and Strategy Group that approved Mr Crossley and yet still to have been fully excluded from anything connected with Ms Beaumont's redundancy.[25]It is of course the Tribunal that has to find the facts and in the two quotations that we have mentioned they specifically hold that Mr Kelly had been excluded. The somewhat delphic reference in the earlier paragraph to his having been a member of the Force Strategy and Policy Group is not fully explained. We cannot say that the Tribunal decision is necessarily internally inconsistent, still less can we say that there was no evidence from which they could have concluded that Mr Kelly had indeed been excluded from connection with Ms Beaumont's redundancy from December 1998.[26]Finally Mr Graham takes a point that Ms Beaumont had not had the representative of her choice at the hearing. We have no reason to believe that she did not choose Mr Horn who eventually effectively and vigorously appeared for her and impressed the Tribunal, as the quotation from the Tribunal indicates. Of course there are practical limits to the notion that one is entitled to the representative of one's choice. It does not mean, for example, that a person of limited funds can necessarily insist upon having the most expensive QC of the day. Equally if one selects as an adviser someone who cannot appear at an agreed hearing date, then, again, the selection has to yield to the practicalities. Here we have a position in which Ms Beaumont was eventually represented by Counsel, Counsel who was regarded by the Tribunal as effective and was having mastered his brief. We see no ground for holding that there had been any error of law in this area. Whether Ms Beaumont has been fairly treated by her union is another matter. There does seem to have been a degree of incompetence in the preparation of the case because, even assuming Mr Carter was ill (and he has said he was ill although that has not been proved by way of medical certificate in the way that seems to have been contemplated) there was a delay in the due preparation of papers and in the failure to attend at his house to get documents which might well have been there. That seems to us inexplicable. However, we are not concerned whether Ms Beaumont has grounds for a complaint against her union; we are more concerned with whether there are errors of law in the decision between her and the Cumbria Constabulary.[27]We are unable to find any arguable error of law and accordingly, even at this preliminary stage, we must dismiss her appeal.