MR C HARTIGAN v (1) THE MAYOR & BURGESSES OF THE LONDON BOROUGH OF LEWISHAM (2) MR R CANDY (3) MR D CORMACK (4) MR R J HILL [2000] UKEAT 864_00_0812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 864_00_0812Case No Appeal No. EAT/864/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C HARTIGANAPPELLANT(1) THE MAYOR & BURGESSES OF THE LONDON BOROUGH OF LEWISHAM (2) MR R CANDY (3) MR D CORMACK (4) MR R J HILLRESPONDENT
Before
Mr Justice BellLord Davies of CoityDate 8 December 2000
[1]APPEARANCES For the Appellant MR IAN WILSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE BELL : This is a preliminary hearing in respect of Mr Hartigan's appeal against the decision of the Employment Tribunal held at London (South) on 24th and 25th November 1999 and 1st February 2000, although the decision was not promulgated until 26th May 2000. Mr Hartigan's complaint was that he had been unfairly dismissed by the respondent, Lewisham Direct Team. His application was dismissed. There were three co-applicants whose similar claims were also dismissed. Three of them, Mr Hartigan, Mr Candy and Mr Cormack were members of UCATT and represented by a union officer, Mr Hehir. The fourth man, Mr Hill, was a member of TGWU. He was represented by a union officer, Mr Blennerhassett. The respondent was represented by Counsel. The essential history is that the four applicants were each employed by the respondent as roofers in their Task Force Roofing Section. That section formed part of the respondent's direct labour organisation which carried out mainly major roofing works and roof renewals. Ordinary roofing maintenance work was carried out in the Repair and Maintenance Section, based in neighbourhood offices.[2]The respondent's capital programme for 1996/97 contained virtually no provision for roofing work and a decision was therefore made to close the section in which the applicants were employed. The respondent's case was that it was originally intended that the roofers in the Task Force Section and the roofers in the Repair and Maintenance Section would be combined into a single redundancy pool but that they were persuaded by the trade unions, including Mr Hartigan's trade union UCATT, that redundancy should be confined to the task force roofers. As a result of that decision all 12 roofers, including the four applicants employed in the Task Force Roofing Section, were identified for redundancy and became eligible for redeployment under the respondent's redeployment procedures. Mr Candy and Mr Cormack chose not to take advantage of those procedures. Mr Hartigan and Mr Hill did become redeployees, but no suitable alternative employment was found for them and, accordingly, the employment of each of the applicants was terminated on 29th June 1996 on grounds of redundancy.[3]By their Originating Applications, each presented on different dates, the four applicants contended that the decision to dismiss them was unfair.[4]A tribunal held on 26th November 1998 held that it had power to consider the applications of Mr Candy and Mr Cormack, although the respondent contended that they were out of time. The respondents appeal against that decision was allowed by this Appeal Tribunal, differently constituted, and all four applications came on for rehearing on 24th November, on the time point and on the substantive issues.[5]The new tribunal held that Mr Candy and Mr Cormack were out of time; that there was no good ground for extending time and so their claims failed for want jurisdiction.[6]The tribunal went on to hear the merits of the claims of Mr Hartigan and Mr Hill. The tribunal heard evidence from witnesses called on behalf of the respondent. It heard evidence from Mr Hartigan, who gave evidence about the events of the redundancies as they affected him and about what he regarded as inadequate efforts by the respondents to advise him about the redeployment process and to find him alternative work. The tribunal also heard evidence from Mr Hill and it examined a number of documents, one of which was a memorandum in March 1996 stating that after consultation with UCATT and TGWU officials it was their view that the redeployment process should be confined to the Task Force Roofing Section. Confinement of the constituency for redundancy/redeployment, it is clear, was agreed by those unions with the respondent, and one of the UCATT officers who took part in the negotiations ending with that agreement was in fact Mr Hehir.[7]Returning to the tribunal's enquiry and decision on the merits of Mr Hartigan's application, it recorded that it accepted the evidence of the main witness of the respondent in respect of choosing the Unit for redundancy in accordance with the clearly expressed wishes of the trade unions concerned and understandably and rightly in our view held that in those circumstances that question could not, in effect, be reopened. The tribunal went on to say that the applicants were clearly extremely upset when they saw subcontractors completing work on which they had been engaged after their dismissal. But Mr Warren, the respondents' witness, gave an acceptable explanation of why that should be so and why that was still consistent with genuine redundancy.[8]The tribunal then turned to the question of corporate redeployment. It found that it was particularly difficult to find suitable vacancies for manual workers with high earnings such as Mr Hartigan and Mr Hill. It recorded that both Mr Hartigan and Mr Hill had completed redeployment profiles and went on to say:
"19. … We consider that the Respondents' corporate redeployment procedure is effective to match redeployees to possible vacancies and that, in applying that procedure to the Applicants, the Respondents took reasonable steps to find alternative employment for the roofers made redundant as a result of the decision to close the Task Force Roofing unit."
[9]The tribunal reject Mr Blennerhassett's submission that the efforts made by the respondents in respect of Mr Hill's redeployment were inadequate. It then turned specifically to the question of the redeployment of Mr Hartigan. It recorded at paragraph 22 of the extended reasons for its decision:
"Mr Hartigan said in his evidence that there were suitable vacancies available during the redeployment period for which he would have met 50% of the matching criteria. Mr Hartigan also said that there should have been more discussion or advice given to the workforce on redeployment."
[10]The tribunal then in paragraph 23 considered the evidence of Miss Bartlett, a respondents' witness, who dealt with each of the jobs which had been identified on Mr Hartigan's behalf as being suitable. The tribunal then continued at paragraph 24:
"Miss Bartlett also dealt in detail with the other vacancies identified on Mr Hartigan's behalf. We are satisfied that each of the jobs within Mr Hartigan's abilities were at a considerably lower wage than he earned as a Roofer and would therefore not have been suitable for him unless he was prepared to accept a substantial reduction in his income. Mr Hartigan referred in his evidence to his financial commitments and we are not satisfied that he would have been prepared to accept a much less well paid job. We are also satisfied that Mr Hartigan did not possess the administrative and clerical skills needed to carry out any of the jobs paid a salary comparable to his earnings as a roofer."
The next paragraph which, for what we think must be a typographical error, is numbered 8, reads:
"For those reasons, we reject Mr Hehir's submission that the Respondents did not do what was reasonable to find alternative work for Mr Hartigan."
The conclusion numbered, again in error, 9, reads:
"For the reasons given above, the claims of each of these Applicants fail. The Respondents have applied for costs and the Tribunal has directed that that application should be dealt with by the Chairman alone after promulgation of this decision. …"
[11]Mr Hartigan originally prepared grounds of his own and a skeleton argument which was put before the tribunal, and the basis of his grounds and the skeleton argument was that he was inadequately represented by Mr Hehir who was no match for Counsel acting for the respondent and, moreover, that in the course of time it appeared that Mr Hehir had taken part in the negotiations leading to selection of the constituency for potential redundancy and redeployment and therefore, in effect, there was some kind conflict of interest between doing that and representing Mr Hartigan who potentially at least had suffered as a result.[12]Mr Ian Wilson has appeared for Mr Hartigan this morning under the auspices of ELAAS. We are very grateful to Mr Wilson as indeed Mr Hartigan should be also. Mr Wilson found it difficult to pursue that point on Mr Hartigan's behalf and in our view his judgment in that respect was correct. Only in exceptional circumstances could this tribunal consider that a hearing before the Employment Tribunal was unfair for the purposes of ordinary domestic law or for the purposes of Article 6 of the European Convention on Human Rights by reason of the party's representation. In our view the matters put before us do not come remotely near circumstances which would make such a conclusion even arguable in this case. Reading through the tribunal's decision it appears clear to us that Mr Hehir really took every reasonable point which could have been taken on Mr Hartigan's behalf. In any event, at a comparatively early stage it must have been apparent to Mr Hartigan the role which the union of which Mr Hehir was a representative and an officer had played and he took no objection, certainly no objection before the tribunal, as we understand it, to his representation by Mr Hehir. Even if he had taken any such objection, he would have at best been given an option of representing himself and we cannot see in any respect in which doing that would have improved his situation. Like Mr Wilson, we really see nothing which merits further argument on that point.[13]However, Mr Wilson this morning asked leave to substitute an amended ground of appeal as follows:
"The Tribunal misdirected itself by substituting its own views as to whether or not the applicant was likely to accept a lower paid position if offered (paragraph 24) without enquiry whether the respondent had (a) actually considered offering lower paid posts and/or (b) had offered the Appellant any such posts."
Mr Wilson's argument was that it was not open to the tribunal to say that if Mr Hartigan had been offered an alternative post, whatever modest rate of pay, he would not have accepted. There was an obligation upon the respondent to offer all available posts to Mr Hartigan and to leave it to him to decide whether he should accept the post or not. Mr Wilson says that his instructions are that Mr Hartigan was very keen to remain on the respondents' books. We note particularly the sentence in paragraph 24:
"Mr Hartigan referred in his evidence to his financial commitments and we are not satisfied that he would have been prepared to accept a much less well paid job."
Mr Wilson says that there was some mention of Mr Hartigan's financial commitments but not in the context with which paragraph 24 deals. If actually asked at the hearing whether he would have accepted one of the lower paid jobs, he would have replied in the very positive affirmative.[14]The difficulty with that argument it seems to us was that all these issues were at large before the tribunal and the tribunal would have been perfectly entitled to say, as it clearly would have done looking at the way paragraph 24 is expressed, that whatever Mr Hartigan said at the time of the hearing it was absolutely clear that he would not have accepted a job which involved a substantial reduction in his income. Mr Hartigan may well disagree with that now, no doubt he does, but it is the sort of decision which tribunals have to make day in and day out and which they are entitled to make if there is evidence before them to support it. An alternative way of expressing Mr Wilson's suggested ground of appeal, as he accepted, would be to suggest that the sentence which we have quoted from paragraph 24 was a perverse conclusion in the sense that there was no evidence to support it. It is clear that over the three day hearing, this tribunal had a wealth of evidence about the various jobs, about what the remuneration in those jobs was, and indeed in relation to what Mr Hartigan had been earning and what his financial commitments were. We cannot see, despite Mr Wilson's arguments, for which we are grateful, that the tribunal in this case took a course which was not open to it on the evidence, or reached a conclusion which was not open to it.[15]For all these reasons, this appeal must be dismissed at this stage. It is not doing a kindness to anyone, least of all Mr Hartigan, if we allow a matter to go ahead just because we have sympathy for him, as we do, only for it inevitably to be dismissed after a full hearing.[16]We should add, because it has so far been omitted from our judgment, that we understand that an order has been made against Mr Hartigan recently to pay £500 towards the respondents' costs of the tribunal hearing. That must have technically been on the basis of his unreasonable behaviour. But it is in no sense the result of his unreasonable behaviour personally. As we understand it from Mr Wilson, and indeed there is some indication in correspondence which we have before us that that must be so, it was entirely because of the unreasonable behaviour of Mr Hehir at the tribunal for which Mr Hartigan has been held responsible. Mr Wilson says that the order was because at one stage in the proceedings Mr Hehir completely lost his self-control. We do not see anything in what we have been told about that which affects our decision on the ground of appeal raised by Mr Hartigan himself. We very much hope, indeed we have every confidence, that Mr Hartigan will not have to pay anything towards those costs, but that they will be borne by the union concerned. We understand that it is not so much the amount of costs, although that is obviously important, but the way in which the order reflected on Mr Hehir's representation of Mr Hartigan. But as we have said it appears to us that everything which could reasonably be said on Mr Hartigan's behalf was said at the tribunal before it came to the decision which it did.