MISS A OMOQUI v OTTO SCHIFF HOUSING ASSOCIATION [2001] UKEAT 454_01_1806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 454_01_1806Case No Appeal No. EAT/454/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS A OMOQUIAPPELLANTOTTO SCHIFF HOUSING ASSOCIATIONRESPONDENT
Before
Sir Gavin LairdDate 18 June 2001
[1]APPEARANCES For the Appellant MR JOHN HORAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR COMMISSIONER HOWELL QC In this case which is before us today for preliminary hearing, Miss Angela Omoqui seeks to pursue an appeal against the Decision of the London Central Employment Tribunal sitting on 29 and 30 January 2001 and set out in Extended Reasons sent to the parties on 14 February 2001 at pages 5 - 10 of the appeal file before us.[2]The proceedings before the Tribunal were a complaint by Miss Omoqui that she had been unfairly dismissed on the alleged ground of redundancy by her former employers, the Respondents, the Otto Schiff Housing Association which is an organisation that owns and manages a number of registered residential and nursing homes for elderly people, in particular in North London.[3]Miss Omoqui was working at one of those homes when it was decided by the Council of Management of the Respondent that another of the homes had to be closed, with the closure of 72 residential and nursing beds and a reduction of approximately 70 staff. As recorded at paragraph 6 of the Tribunal's Extended Reasons, as a result of that the Respondent found that it needed to reduce the total workforce in its homes by about 25% and therefore embarked on a redundancy exercise for selecting the care assistants in its various homes to be made redundant, in which all of the care assistants employed in all of its six homes, including the home in which Miss Omoqui worked as a care assistant, were to be regarded as the pool for potential redundancies. That was accepted as a proper basis for selection of the pool of employees for potential redundancy by the Tribunal, and no dispute is made about that on behalf of Miss Omoqui by Mr Horan who has helpfully appeared before us acting under the ELAAS scheme to argue the points of appeal on her behalf this morning.[4]The basis of Miss Omoqui's complaint to the Tribunal was that in applying the redundancy selection procedure the Respondent had acted unfairly towards her and allied to that was a separate complaint that she had been unfairly dismissed for making protected disclosures by having raised in the past, concerns about the treatment of particular patients in the home where she was working. The background to the issues we shall have to consider is that this involved her in disagreements, in particular with a Mrs Yap, who was the manager of the Leo Baeck House where Miss Omoqui worked, and played a part in the assessment procedure leading to her selection for redundancy.[5]The Tribunal's Decision began by striking out the majority of the Applicant's complaints of unfair dismissal for making protected disclosure, for reasons which appear from paragraphs 2 - 5 of the Extended Reasons, particularly that the Applicant had failed to comply with an Order as to giving further and better particulars of her allegations on that issue. However, in one respect, the Tribunal allowed the allegation of unfair dismissal on that ground to stand, as is apparent from paragraph 4 of the Extended Reasons, where they referred to a certain category of complaint as having been related to matters of procedure within a particular home in which Miss Omoqui worked and recorded that:- "Mr Lightburn the general manager of the Respondent at the relevant time was in the Tribunal and could give evidence about those procedures. Mrs A Yap was in the Tribunal attending under a witness order granted to the Applicant. She could also assist in relation to these matters. The Tribunal were satisfied that these two matters were general matters that could properly be addressed by the Tribunal and it was therefore the unanimous decision of the Tribunal not to strike out these two matters." With that exception, the complaint of unfair dismissal for having made protected disclosures was struck out, and the Tribunal then went on to consider the material facts and the major complaint of unfair selection for redundancy.[6]As they recorded in paragraphs 7 and following of their Extended Reasons, a redundancy policy was drawn up by the Respondent in November 1999. This document was circulated to all staff and listed the criteria for selection which were:- "Selection for redundancy will be based upon an assessment of relative capabilities, performance, reliability, conduct, attendance record and suitability for the work which remains." The policy also stated:
"A grid will be designed to help carry out the redundancy assessment and will be graded according to the results of a written questionnaire which will be completed by the home/department manager for each member of staff." 8 Miss Omoqui was off sick in November 1999 following an operation and did not return to work until 13 January 2000. 9 Mrs A Yap, manager of Leo Baeck House, where Miss Omoqui worked filled in some 20 to 25 of the written questionnaires. Mrs Yap completed Miss Omoqui's questionnaire on 19 January 2000 but did not identify Miss Omoqui apart from by number. This was the universal practice in relation to forms. 10 Mr D Lightburn, the general manager of the Respondent and Ms E Meyerson, the personnel officer of the Respondent collated the questionnaires, without, at that time, knowing the identity of the individuals. They used the numbered forms in order to collate the results. Miss Omoqui appeared fourth from the bottom of the list in terms of her total score scoring 36.5 out of 100. The lowest person who was retained was Lorraine Mbambo who scored 50.5, 14 points more than Miss Omoqui. The scores in relation to the individual criteria were weighted and in relation to those criteria the marks were multiplied by the weighting factor so that the questionnaire produced a score out of 100. The selection criteria were applied to all staff and the number of redundancies required for each group of staff such as care assistants had been identified previously and the lowest scores in each group corresponding to the number of compulsory redundancies required were thus identified. Some individuals took voluntary redundancy."
[7]How Miss Omoqui's scores and her consequent identification for redundancy were discussed with her appear in the next following paragraphs:- "11 On 2 February 2000 a meeting took place between Miss Omoqui, Mr Lightburn and Ms Meyerson at which Miss Omoqui was told that she had been identified for redundancy. Ms Meyerson wrote to Miss Omoqui on the same date, 2 February informing her that her post was one of those identified for redundancy and inviting her to a consultation meeting with Mr Lightburn on 8 February. 12 The consultation meeting did take place on 8 February and Miss Omoqui was given a copy of the questionnaire and a redundancy illustration as at 29 February when she only had four years service. 13 By a letter dated 11 February 2000 Miss Omoqui indicated to Ms Meyerson that she would be responding to the questionnaire and Ms Omoqui subsequently did so enclosing her response with a letter to Mr Lightburn dated 29 February. The response ran to four pages and comments on all aspects of the questionnaire and the answers in relation to Miss Omoqui.14. Mr Lightburn asked Mrs Yap to comment on the response to the questionnaire and obtained those comments with Mrs Yap's letter to him of 14 March 2000.15. A further meeting took place on 21 March 2000 between Miss Omoqui, Mr Lightburn and Ms Meyerson and following that meeting Mr Lightburn wrote to Miss Omoqui on 22 March stating, amongst other things, "I explained to you that your response had been passed to the manager in question and that I in turn had asked her to comment upon your written submission. Our meeting yesterday was not an appropriate place to explore these written submissions point by point. It is clear that you disagree almost entirely with Mrs Yap's assessment of the areas identified by the questionnaire a point by point review of your comments would not resolve these differences. I explained to you, that, as the person responsible, I had given due consideration to your and Mrs Yap's comment. I formed the view that Mrs Yap, when completing the questionnaire, had done so in a fair and objective manner using the same criteria as were applied to every other member of staff in accordance with the agreed procedures." The letter went on to confirm that the post was being made redundant and that Miss Omoqui had the right to appeal to Ms Shepherd the chief executive.16. Miss Omoqui appealed to Mr Shepherd the chief executive. Mr Shepherd obtained further comments from Mrs Yap and the appeal was heard on 13 April 2000. At the appeal all the points of concern raised by Miss Omoqui were considered.17. Mr Shepherd confirmed Miss Omoqui's redundancy by his letter of 8 May." The Tribunal went on then to accept that the closure of one of the Respondent's homes gave rise to a proper reason for redundancy and that the pool was taken from all of the homes run by the Respondent, and as we say there is no dispute before us about that.[8]They then dealt with the remaining issue as to protected disclosure and recorded in paragraph 19 of their Extended Reasons that it was for Miss Omoqui to prove that she had made a protected disclosure and that was the reason for her dismissal. They continued:- "There was no evidence that Miss Omoqui made any formal complaint relating to patients or matters which she says were protected disclosure during the five year period of her employment. Miss Omoqui says that she complained informally. Mrs Yap says that she did not, there is no corroborative evidence to support Miss Omoqui's contention and it is the unanimous decision of the Tribunal that Miss Omoqui has failed to show that she made a protected disclosure and, even if she had she has failed to show any causal link between that disclosure and her dismissal." Accordingly, the Tribunal unanimously determined that the reason for Miss Omoqui's dismissal was redundancy, which is a potentially fair reason for dismissal under Section 98(2)(c) of the Employment Rights Act 1996 . The issue before the Tribunal was therefore, on that basis, whether Miss Omoqui had been selected for redundancy by a fair procedure or not, and whether her dismissal on that ground was fair, having regard to all the circumstances to which they were required to direct their minds by Section 98 of the Employment Rights Act. The Tribunal found that Miss Omoqui's dismissal on the ground of redundancy had indeed been fair and that a fair procedure for assessment had been followed by the Respondent before her dismissal took place.[9]The Tribunal recorded that in reaching this decision they had taken the following factors into account, in paragraph 22 of their Extended Reasons:- "(a) The Respondent had a full redundancy policy set out for staff in November 1999 which listed the selection criteria and stated that a grid and written questionnaire would be used in order to produce the marking. (b) The questionnaire was produced by reference to a number rather than a name so that those collating the markings could not identify individual members of staff at that time. (c) Miss Omoqui says that she did not get on well with Mrs Yap, her manager but Miss Omoqui's own witness Mrs E Akhalu, told us in her evidence that Mrs Yap and Miss Omoqui had a good relationship. Mrs Yap also said she had a good relationship with Miss Omoqui. On the basis that two out of three witnesses have said that the relationship was good and that this includes one of Miss Omoqui's own witnesses there is no reason for this Tribunal to infer that the assessment contained in the written questionnaire and prepared by Mrs Yap was done in an unfair manner. (d) The questionnaires were collated by Mrs Meyerson, the personnel officer and Mr Lightburn the general manager. At the time of collating the questionnaires they could not identify the individual members of staff. (e) Upon Miss Omoqui's return from sick leave on 13 January a number of meetings took place between her, Mr Lightburn and Ms Meyerson on 2 and 8 February 2000. (f) When Miss Omoqui responded to the questionnaire with her letter of 11 February Mr Lightburn obtained comments from Mrs Yap. (g) A further meeting took place on 21 March at which Mr Lightburn made clear to Miss Omoqui that he had formed the view that Mrs Yap had been fair and objective in completing the questionnaire and that Miss Omoqui was being made redundant. (h) Miss Omoqui appealed. Her appeal was heard by Mr Shepherd who obtained further comments from Mrs Yap, on 13 April when he went through the points raised by Miss Omoqui. Subsequently the redundancy was confirmed by Mr Shepherd on 8 May. (i) The Tribunal must consider whether the Respondent acted reasonably and must not substitute their own view for that of the Respondent. We must consider whether there was a fair procedure adopted, whether the consultation was adequate and whether consideration was given to alternative employment. (j) We were satisfied that the procedure was fair. Clear criteria were adopted and an objective assessment carried out of all the individuals in the pool for redundancy. Anonymity was provided at the time when those who were selected were selected for redundancy. Whilst there may have been some flaws in the calculation of the points awarded to Miss Omoqui, Miss Omoqui would have had to have scored a further 14 points in order to avoid being made compulsorily redundant. She argues in relation to her score for reliability in respect of which she could have obtained a further three points and conduct which was scored on half points so she could have only scored a further four points. She has not particularised her claim in relation to performance. It is impossible for the Tribunal to see how Miss Omoqui could obtain more than 14 additional points. Even if these alleged flaws had been resolved Miss Omoqui would have been selected for redundancy in any event. (k) Miss Omoqui was adequately consulted. There was consultation with all staff from 9 November and with her when she returned from sick leave on 13 January. Miss Omoqui herself accepted in cross-examination that she was aware of the consultation. (l) There was no alternative employment available because the Respondent treated the entire workforce as a pool for redundancy."[10]Having taken those matters into account it was the unanimous decision of the Tribunal that Miss Omoqui was fairly dismissed by reason of redundancy. Against that Decision Miss Omoqui seeks to pursue an appeal on a number of grounds set out in her own Notice of Appeal dated 27 March 2001 at pages 2 - 4 of the appeal file, and helpfully amplified and refined on her behalf by Mr Horan in his submissions to us.[11]Mr Horan has put the case before us for allowing this appeal to go forward on four principal grounds, of which it is convenient to take the second first: that the Tribunal had wrongly failed to take into account Miss Omoqui's submissions that she had not been adequately consulted about the redundancy criteria when, as recorded in the Tribunal's findings of fact, the other staff were. When we pressed Mr Horan to amplify the basis of this ground of appeal he said that the complaint was that it was apparent that Miss Omoqui had not been individually consulted in November 1999 when the redundancy policy was drawn up by the Respondent, and the criteria for the redundancy selection was circulated to the staff generally. The reason that she had apparently not been individually contacted at that stage, and asked for her views, was that she was off sick. Nevertheless, we do note that it is recorded expressly in paragraph 22 (k) of the Tribunal's Extended Reasons that Miss Omoqui accepted in cross-examination that she was aware of the consultation with the staff from 9 November, and of course, there was individual consultation and discussion with her at the time when the individual scores for the staff had been prepared and the meetings took place involving her for discussion about her own scores following her return to work on 13 January 2000.[12]Whether or not there was consultation on whether there had to be redundancies at all appears to us beside the point. It was accepted as a matter of fact by the Tribunal that redundancies were inevitable and it was also accepted that all employees in the various categories in the different homes were within the proper pool for potential selection. There is no evidence before us that individual consultation with individual members of staff on the factors to be taken into account in the selection process took place in a way that excluded or in any way operated unfairly towards Miss Omoqui herself, and as we have said the complaint was simply that she does not appear to have been included in the "circulation" to all staff recorded in paragraph 7 of the Tribunal's Extended Reasons. Mr Horan agreed that it was not contended before the Tribunal, nor is it contended before us, that there was any unfairness in the criteria themselves, as recorded in paragraph 7.[13]In those circumstances, it does not appear to us that there is any arguable ground for saying that the Tribunal were wrong in accepting the criteria themselves as reasonable, or in failing to accept any express or implied submission that in not consulting with the Appellant individually about the criteria in November 1999, the Respondent had acted in any way unfairly towards her.[14]That leaves the three remaining grounds put before us by Mr Horan, which are all related in one way or another to the scores awarded to her in the form completed by Mrs Yap, as recorded in paragraph 9 of the Tribunal's Extended Reasons on 19 January 2000, following Miss Omoqui's return to work.[15]The first point taken was that in the course of the Tribunal hearing itself, the Chairman had wrongly intervened to restrict an attempted cross-examination of Mrs Yap on behalf of Miss Omoqui, with questions designed to show that Mrs Yap had acted unfairly towards Miss Omoqui in the scores she awarded because of personal animosity between them. The suggestion is that animosity existed due to Miss Omoqui having in the past, raised concerns about the treatment of patients, and about Mrs Yap's own behaviour and performance in looking after patients in particular, and it appears that that was the major subject matter of the letter of response to the questionnaire referred to in paragraph 13 of the Tribunal's Extended Reasons. It was confirmed to us by Mr Horan expressly that that document raising some 27 different issues, many if not all relating to complaints against Mrs Yap and in relation to Mrs Yap's own performance, was in evidence before the Tribunal and was looked at by the Tribunal.[16]This point, on the Chairman's apparent unwillingness to allow cross-examination of Mrs Yap on matters of her own performance as distinct from the assessment she gave to Miss Omoqui, is not in the original Notice of Appeal, but we deal with it nonetheless. Having listened to what Mr Horan said about it, we have not been persuaded that there is any arguable ground for saying that the Chairman acted perversely in having restricted cross-examination to questions relating to the Applicant's own performance, if indeed he did so. We have not, of course, had an opportunity of hearing what the Chairman had to say about what took place in the course of the hearing; but if he did restrict cross-examination, so that questions were not asked of Mrs Yap about matters relating to her own performance in the past as fully as Miss Omoqui would have desired, we think that was entirely within the proper area of a Chairman's discretion in the conduct of the proceedings.[17]Such matters were, of course, of secondary importance only, if relevant at all. We note that as recorded in the Tribunal's Extended Reasons at paragraphs 15 - 16, 19 - 20 and 22 (c) there was reference in the redundancy meetings and the internal appeal process to the matters of concern that had been raised by Miss Omoqui. Mr Horan confirmed that the issue as to whether Mrs Yap had been operating the procedure fairly, and the suggestion that she had not been doing so because of animosity between herself and Miss Omoqui was fairly and squarely raised before the Tribunal, and it is dealt with in the paragraphs to which we have referred.[18]That major issue of unfairness by reason of Mrs Yap having adversely marked down Miss Omoqui for personal reasons was the subject matter of the next main ground of suggested appeal, which was that the Tribunal had inadequately addressed the issue of unfairness; and in particular had inadequately taken into account evidence as to this animosity and, as Mr Horan put it, the scoring awarded reflected the fact that the Applicant had made complaints about the treatment of clients.[19]On the contrary, however, the Employment Tribunal's Reasons, which we have already read, do in our judgment make it clear that, so far as necessary, the issue of whether there was animosity leading to an unfair award of marks in the assessment was directly addressed by the Employment Tribunal and is the subject of an express finding, in particular in paragraph 22 of their Extended Reasons. There they reject Miss Omoqui's evidence as to animosity between herself and Mrs Yap, and expressly accept that there is no reason for the Tribunal to infer that the assessment, contained in the written questionnaire prepared by Mrs Yap, had been done in an unfair manner. That appears to us to be an issue of fact for the Tribunal on the evidence before them, and not to give rise to an arguable issue of law to warrant our directing this case to go forward to a full hearing of an appeal before the EAT.[20]We reach a similar conclusion on the fourth and final main ground argued before us by Mr Horan, which was that the Tribunal had failed to address with sufficient particularity a contention on behalf of Miss Omoqui that the employer had followed an inadequate procedure in not having addressed and gone into every single one of the 27 issues she had sought to raise in the letter of response she had written. In particular, issues where she had sought to go into the merits of individual incidents which had given rise to her complaints and her concerns that patients were not being adequately looked after, in circumstances which she held Mrs Yap responsible. Again, we have not been satisfied that there is any ground for inferring an arguable misdirection by the Tribunal in not having gone into the details of these earlier incidents. They appear to us only to be relevant insofar as they demonstrate Miss Omoqui's contention that Mrs Yap acted unfairly towards her in the application of the redundancy criteria and to that issue, the details of the individual cases and what had happened in the past is, in our judgement, secondary.[21]The issue which was squarely before the Tribunal, and was sufficiently addressed by the Tribunal in our judgment, was whether Mrs Yap was biased, as a result of complaints having been made. It is not, in our judgment, the Employment Tribunal's task in assessing an issue of that nature to investigate and pronounce on the merits of each individual past incident which it is alleged has given rise to the existence of such bias.[22]Again, for the reasons given by the Tribunal in paragraph 22(c) of their Statement of Extended Reasons, it appears that the Tribunal was satisfied as a matter of fact that Miss Omoqui's suspicions of bias and unfairness against her were, on the facts, unjustified; and that is a conclusion of fact which in our judgment the Employment Tribunal was entitled to arrive at. It was based on evidence properly before them, so that the fact that Miss Omoqui is not satisfied with the result does not amount to saying that there is any arguable ground for holding that the Tribunal had erred in law in reaching that conclusion.[23]For those reasons we have not been satisfied that there are sufficiently arguable grounds for us to warrant sending this appeal forward to a full inter partes hearing, and we accordingly unanimously now dismiss the appeal.