MR R CARTER v THE GOVERNING BODY OF CANNOCK CHASE [2001] UKEAT 1427_00_2206

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1427_00_2206Case No Appeal No. EAT/1427/00 & EAT/0347/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R CARTERAPPELLANTTHE GOVERNING BODY OF CANNOCK CHASERESPONDENT
Before
His Honour Judge J Altman Ms J Drake Mrs D M PalmerDate 22 June 2001
[1]APPEARANCES For the Appellant MR DAVID JOHN CLANCY (Representative) JUDGE ALTMAN This is an appeal from the decision of the Employment Tribunal sitting at Birmingham on 23 August 2000 and it is also an appeal from the Employment Tribunal sitting at Birmingham to deal with remedy, following a finding of unfair dismissal on 11 December 2000. These two matters clearly run together.[2]There are, in relation to the remedies hearing, grounds of appeal that the Appellant would wish to raise in relation to the refusal of the Employment Tribunal to order reinstatement or re-engagement and the quantification of some of the heads of loss. But we have not considered that in any detail because that all really follows from the original finding of liability, which we consider does contain arguable points of law which merit an appeal hearing in full. It is perhaps helpful just to pinpoint one or two of the factors.[3]The appeal essentially is in relation first, to the finding of the Employment Tribunal that the reason for dismissal set out in paragraph 20 of the decision of the Employment Tribunal was the Appellant's:
"…refusal to carry out work in connection with the June 1999 examinations. Such a refusal came within the definition of conduct and not redundancy."
[4]The second matter is that there is an argument that the Employment Tribunal erred in its approach to the question of contribution, set out at paragraph 22 in which the Employment Tribunal found:
"We have decided that Mr Carter had contributed to his dismissal by refusing to carry out the duties required of him for the June examinations."
[5]In relation to the first it appears that the Appellant was employed in electronics and electrical technical work. There was an issue as to whether he had been given a new job as a result of receiving job descriptions, new contract of employment and job title and increased salary. The matter that the Employment Tribunal had to deal with came about because in March 1999 the Appellant refused, so the Employment Tribunal found, an instruction from his head of section, Mr Jackson, to do some specific task ready for the examinations in June.[6]The Tribunal made important findings in paragraph 8 but it appears that there was an issue as to whether the duties the Appellant was being asked to perform were in fact those that he was obliged to do or whether they fell outside his contract of employment and it was a matter in relation to which he wished the intervention of his Union, Unison, to assist in resolving.[7]The form of the dismissal was expressed to be redundancy. In paragraph 8 the Tribunal said he was dismissed:
"…curiously on the grounds of redundancy."
Although later in the paragraph it is said that Ms Bell dismissed on the ground of a refusal to carry out duties for the examinations.[8]There was evidence that we have just had a glance at, before the Employment Tribunal. For instance, at page 167 of our large bundle of documents there is a memorandum from Mr Jackson, the head of section, to all staff describing the Appellant as having accepted voluntary redundancy.[9]Furthermore, at page 280 is a witness statement from a Mr Williams, who was the Chairman of NATFHE at the college, who was in fact told by Ms Bell, on the day of dismissal, that the Appellant had accepted a voluntary redundancy package, with which he was very happy and that there had been no dismissal.[10]Furthermore, there is a phone message memorandum at page 164 which shows that the day before the dismissal a phone message was left for Ms Bell seeking a meeting with the Union and Mr Clancy, who has presented the arguments clearly before us on behalf of the Appellant, said that there was evidence before the Tribunal that Ms Bell had made no attempt to contact the Union before dismissal.[11]In paragraph 8 of their decision the Employment Tribunal found that:
"Ms Thompson was unable to meet with Ms Bell in the presence of Mr Carter before Ms Bell terminated Mr Carter's employment on 28 April 1999."
But they do not appear to have addressed the reason why this was not possible.[12]Against that material we note that it is the Appellant's case that during the hearing itself Mr Clancy was repeatedly seeking to cross-examine witnesses about their references to redundancy, but was stopped from so doing by the Chairman. Indeed it is suggested that there was a form of bias being demonstrated in that, in effect, the issue of the reason for dismissal, which was clearly central to the task of the Tribunal in this case, had been pre-determined at an earlier stage of the hearing and investigation about it was being stopped.[13]Where issues of bias are concerned, the Chairman is frequently invited to make his comments. Obviously this Tribunal cannot, in general, go about an adjudication on evidence based on the one hand on an affidavit from an Appellant and on the other from a letter from a Chairman. Such communications from a Chairman are often of very great assistance to the Employment Appeal Tribunal in making it possible to see the complaints made by an Appellant where bias is alleged against a broader context, because very often litigants in person are puzzled by some features of a Tribunal's procedure which are well known and common to those experienced in it. But in this case the Chairman has elected to make no comment, as of course he is perfectly entitled to do.[14]In considering whether there is a point of law, it seems to us we are driven to approach the matter on the face value content of the skeleton argument and grounds of appeal. It therefore seems to us arguable that the Employment Tribunal did not properly address the issue as to the reason for dismissal.[15]There is a difference, sometimes, between what is the reason for dismissal, on the one hand, and what could have been the reason for dismissal. There may be two situations. An employer may in reality be dismissing for misconduct but make a mistake, as so often happens, and use the word 'redundancy' loosely, as a form of dismissal.[16]On the other hand an employer may have at the back of his or her mind an issue of conduct but decide, for reasons of his or her own, that in fact the dismissal is going to be for redundancy. It seems, we understand, that the latter is the Appellant's case; that knowing that an error had been made; knowing that perhaps she had acted impulsively and knowing that it may be that the Union intervention would demonstrate that the Appellant was in his rights to refuse the instruction, the Respondents, through Ms Bell, constructed a dismissal for redundancy. In those circumstances, if that was an issue, it really fell to be considered with some care by the Tribunal and it seems to us arguable that that was not done.[17]Although there was a finding of unfair dismissal, the reason for dismissal is something, even without entitlement to compensation, an Appellant is entitled to have adjudicated by a Tribunal and of course it can be of great importance, as we understand it is in this case, for the prospects for future employment are, generally speaking, better for someone who is dismissed for redundancy than someone who carries with them the stigma of misconduct.[18]Accordingly we give leave to appeal first on the ground that the Employment Tribunal failed properly to address the task of ascertaining the reason for dismissal and the evidence in the case on that issue.[19]Secondly, so far as the finding of contribution is concerned, much depends on the view of the final Employment Appeal Tribunal body as to the main issue of liability and so we say little about it except that of course, depending upon the reason for dismissal, the issue of contribution may vary very considerably. It seems also arguable to us that if there was to be a finding of contribution there would have to have been some assessment of the factual issues surrounding the reasonableness of the Appellant seeking Union guidance on the matter and the reasonableness of the Respondents in having proceeded without consulting the Union.[20]Accordingly we allow this matter to proceed to a full hearing in relation to those two matters. It will be listed for a day in Category C. We would ask the parties to furnish skeleton arguments not less than 14 days before the main hearing.