MS JOY LEADER & OTHERS v LONDON BOROUGH OF BRENT [2001] UKEAT 329_01_0711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 329_01_0711Case No Appeal No. EAT/329/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS JOY LEADER & OTHERSAPPELLANTLONDON BOROUGH OF BRENTRESPONDENT
Before
His Honour Judge A WilkieDate 7 November 2001
[1]APPEARANCES For the Appellant MR GARY MORTON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE A WILKIE QC This is a preliminary hearing of the appeal by Joy Leader and Others against the Decision of the Employment Tribunal sent to the parties on 18 January 2001 in which, on a limited basis, the Tribunal upheld the complaint of unfair dismissal brought by Ms Leader and Ms Myers and Ms James, but dismissed those brought by Mr Grey and Mrs Mulholland. We have been greatly assisted by Mr Gary Morton of the ELAAS scheme.[2]The handwritten Notice of Appeal raises three issues as grounds for appeal, headed "Whistle blowing" "Consultation" and "Post availability". To those three grounds Mr Morton has, by way of his address, sought to add a fourth ground, namely, the pool for selection for redundancy. It is our clear view that on the issues of "Consultation", "Post availability" and on the "pool" issue, there is no arguable point of law, nor is there any question that the Tribunal, in dealing with those issues in the various paragraphs of their Decision to which we have been referred, has failed to make clear the reasoning which informed its decisions on these respective matters. Therefore we do not give leave for these three issues to proceed to a full hearing.[3]What underlay the applications before the Tribunal is made apparent by the terms of an Amended Originating Application which appears to have been sent to the Employment Tribunal on 8 January 2000. It has been given the description of "whistle blowing". What it amounts to is the allegation that the redundancy exercise was a sham, specifically designed to exclude from employment one or more of the Applicants who had drawn attention to what they regarded as potential, or actual, misconduct, or a conflict of interest in the position of Linda Gardner, the person, who it was said, made the relevant decisions resulting in dismissals by reason of redundancy.[4]The Employment Tribunal addressed the question whether the Respondent Council had demonstrated what the reason for the dismissal was and concluded that it was satisfied that the reason for dismissal was redundancy. That is stated in paragraph 31 of the Decision. In paragraph 32 of the Decision, before dealing with the question of fairness substantively, the Tribunal said in terms:
"The first matter to be confirmed is that the Tribunal did not believe that this was a dismissal as a result of 'whistle blowing'."
This assertion by the Tribunal carries within it no reasoning to support that conclusion and therefore we have to look back in the Decision to see what there is in the recitation of the facts, or in the way that the arguments were treated by the Tribunal, which might reveal the reason.[5]In paragraph 13, part of the recitation of the facts, the Tribunal say as follows:
"As a backdrop to these events at around this time complaints were being raised with Councillors and the local Member of Parliament that Miss Gardner was profiting from a private company with which she was involved. In fact, unknown to the Applicants making these complaints, this allegation was misconceived. Miss Gardner's involvement was with a charitable company limited by guarantee and she stood to make no profit for herself out of this company."
[6]In paragraph 26 of the Decision which sets out the submissions made by Ms Leader, one of the Applicants who is acting on behalf of all of the Applicants, the Tribunal record one of her submissions as follows: "She also submitted that the real reason for dismissal was because the Applicants had 'whistle blown' about the activities of Miss Gardner".[7]The Tribunal then go on to comment on this submission in the following terms:
"For the avoidance of doubt the Tribunal wishes to make it clear that the Tribunal concluded that the complaints about Miss Gardner were misconceived and that Miss Gardner had not acted in any way improperly with reference to the company with which she was involved which, at the Tribunal has stated in its findings of fact, is a company limited by guarantee."
[8]It seems to us that there is an arguable question to be raised whether these particular passages provide sufficient reasoning to support the assertion of the Tribunal's belief, as set out in paragraph 32. Further, it is arguable that they may demonstrate a failure by the Tribunal to address the proper question, namely whether, misconceived or no, the complaints being made were such as gave rise to animosity, sufficient in Miss Gardner, for her to initiate and carry through a sham redundancy exercise for the purpose of getting rid of those who were making the misconceived complaint against her.[9]Of course, at this stage, we do not express any conclusion on these issues. It does seem to us that on this narrow issue alone, there is a sufficient case to be carried forward to a full hearing of this Tribunal, and therefore that is our Order. It seems to us that the current Notice of Appeal, whilst it gives a hint of this ground of appeal, could perhaps be more clearly expressed. Mr Morton has succeeded in expressing the argument to our satisfaction this morning, and therefore we will give leave to amend the grounds of appeal to clarify this particular ground, and will give fourteen days to do so. Mr Morton, we think that this is a case which is a Category C case. We note that there is a handwritten request for notes of evidence. We do not see that really there is any assistance going to be given to the Tribunal at the full hearing of notes of evidence, but we do think that the report, which was the subject of the disclosure application which was before the Tribunal, ought to be part of the bundle.