MISS C FOX v MCCH SOCIETY LTD [2000] UKEAT 1364_99_2003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1364_99_2003Case No Appeal No. EAT/1364/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS C FOXAPPELLANTMCCH SOCIETY LTDRESPONDENT
Before
Mr Justice Burton Mr P M Smith Mr T C ThomasDate 20 March 2000
[1]APPEARANCES For the Appellant MR W BEGLAN (of Counsel) Messrs Kenneth Elliot & Rowe Solicitors 162-166 South Street Romford Essex RM1 1SX MR JUSTICE BURTON : This is a preliminary hearing of an appeal by Miss Fox, the Appellant, against her dismissal by MCCH Society Ltd, which is a charity running various homes, by whom for a short period the Appellant was appointed first acting manager and then manager of one those homes. The Tribunal found that Miss Fox had been fairly dismissed. The circumstances of the dismissal arose out of intervention by the London Borough of Redbridge, the regulatory authority in this case, which pointed out that the Appellant did not have the relevant qualifications to run the home to which she had been appointed with the knowledge and of course at the initiative of the Respondent, notwithstanding the absence of such qualifications, but with the expectation that she would nevertheless be able successfully to manage the home and in due course would have the relevant training. A number of problems arose with the home, and that resulted in the intervention of the London Borough of Redbridge.[2]As a result of that intervention, which did not specifically require the dismissal of the Appellant, but simply required the resolution of the situation in which an unqualified manager was acting at the helm, the Tribunal concluded that the Respondent acted reasonably in, first, considering and then concluding upon one of three options which appeared reasonably available. It concluded that the option was to remove the Appellant as manager, but redeploy her with the appropriate training in charge of those with learning disabilities. That was not done without a considerable amount of discussion and involvement of the Appellant, but in due course she rejected that option that was given to her and the result was the expiry of her notice period without resolution, and consequently her dismissal.[3]The grounds of appeal, put forward with perseverance by Mr Beglan before us today, effectively boil down to three. First, that the Tribunal was perverse in its conclusion that the Respondent acted reasonably in acting on what seemed to be the requirements of the London Borough of Redbridge. It is suggested by Mr Beglan that on the evidence the Employment Tribunal heard they were bound to find that the Respondent had in fact misunderstood the requirements of the London Borough of Redbridge. That was an argument that was put before the Tribunal at paragraph 24(iii) of the Tribunal's reasons, it deals with that argument. It says:
"The Applicant has submitted that the requirement of the Regulatory Authority had been misunderstood fundamentally. We cannot accept this submission. …"
Mr Beglan submits that even that conclusion must be explored further on the ground that it must have been perverse, given the evidence that was put forward, which he submits should have led to a conclusion that the Respondent in fact did not consider the relevant letter of 26th January 1998 and its appendix, because had it done so it must have acted otherwise than it did. The Tribunal, it appears to us, did consider that argument too, when later in the paragraph they reiterate:
"We do not agree that the Respondent misinterpreted or misunderstood the paragraph. …"
There must be implied within that conclusion the supplementary conclusion that the Respondent did actually consider the paragraph in order to arrive at a reasonable interpretation or understanding of it. It is a heavy burden which an Appellant seeks to undertake when he suggests that the Tribunal was perverse, but in this case it seems to us particularly difficult, given the express way in which the Tribunal addressed an argument which he himself, as he accepted, put forward in written submissions, by reference to evidence which he specifically drew to the attention of the Tribunal, only for them to reject it.[4]The second ground of appeal is that the Tribunal erred again or, it seems to us it must be, were perverse in concluding that the Respondent employer acted reasonably in considering the three options that were put before it and electing for one of them. The submission that Mr Beglan makes, again which he did put before the Tribunal, is that there was inadequate consideration by the Tribunal of the fact there was inadequate consideration by the Respondent of the two options which the Tribunal concluded the Respondent had reasonably not followed. They are set out in paragraph 10 of the decision:
"appointing someone of relevant expertise and qualifications to give clinical/specialist support to the Applicant and her team; redeploying the Applicant and replacing her with such a qualified person; and buying-in external consultancy from an appropriate expert."
The first and third, were, the tribunal concluded, reasonably rejected by the Respondent. They come to that conclusion in paragraph 24(iv), and again it was a submission that was expressly made by Mr Beglan to the tribunal: "Criticism is made that the Respondent did not take up other options …" and was rejected by the Tribunal. We conclude that the Tribunal, having heard the evidence over two days, reached a conclusion that was perfectly open to them.[5]The third ground of appeal, which really blends into the second, is that the Tribunal did not properly apply the principles of Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 and in particular the principle set out there that employers should take adequate account of injustice suffered by an employee where they are being driven to dismiss as a result of the intervention of a third party. It appears to us that the Tribunal did not act inappropriately in concluding that the employers acted reasonably in the way they did. Indeed, the findings of fact by the Tribunal are such that the Respondent did indeed consider injustice to the Appellant, and that is why the options were considered, and the particular option of redeployment which would have, had it been accepted, resulted in a satisfactory continuation of the Appellant's employment was fully considered by the employer.[6]We see no grounds whatever for interfering with this decision. We accordingly dismiss the appeal.