MISS B G LARDIER v BRITISH GAS RESEARCH & TECHNOLOGY PLC [2001] UKEAT 821_00_0503

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 821_00_0503

Case No Appeal No. EAT/821/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS B G LARDIERAPPELLANT

BRITISH GAS RESEARCH & TECHNOLOGY PLCRESPONDENT

Before

MR COMMISSIONER HOWELL QC

MISS C HOLROYD

MRS M T PROSSER

Date 5 March 2001

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR COMMISSIONER HOWELL QC : This appeal which is before us for preliminary hearing is by Miss Brigitte Georgette Lardier against the decision of the London (North) Employment Tribunal set out in extended reasons sent to the parties on 29th May 2000 after a hearing spread over three days on 25th, 26th and 28th April 2000. As recorded in the impeccable statement of extended reasons by the Chairman at pages 4 to 14 of the appeal file before us, this case has a long history. It has already been before this Appeal Tribunal on at any rate three previous occasions and the judgments given on two of those occasions, by Kirkwood J on 3rd February 1997 and by Charles J on 11th October 1999, were before us.

[2]The tribunal proceedings in April and May 2000 with which we are concerned were on the rehearing by this Appeal Tribunal directed on one of those earlier appeals on 11th October 1999, of certain limited issues arising from Miss Lardier's complaints against her former employers, a subsidiary company of what was then known as British Gas. Those complaints were originally made by an Originating Application presented to the tribunal on 29th April 1996, amplified and supplemented by an amended application dated 26th June 1996, before us at pages 29 to 30 of the appeal file. The complaints were of unfair dismissal on 31 March 1996, breach of contract (in relation to both the redeployment of certain employees and a grading appeal procedure she had been involved in), "action short of dismissal" alleged to be detrimental to her as a non-trade union member, and discrimination on the ground of her sex.

[3]The early history of the matter and the reasons it was remitted for rehearing to the tribunal, on some though not all of those issues, are comprehensively set out in the judgment of Charles J given in this Appeal Tribunal on 11th October 1999 and the Chairman's statement of extended reasons on the rehearing itself, and we do not need to repeat them here. All that is necessary to note is that the issues remitted to the tribunal for rehearing, and dealt with by it in the decision with which we are concerned, were restricted to Miss Lardier's claims for breach of contract, and for unfair dismissal .

[4]As expressly held in paragraphs 41 to 42 of the judgment of 11th October 1999, there were three issues which had already been dealt with conclusively in one way or another in the proceedings, and could not therefore be properly raised again on the remitted hearing before the tribunal. These were:(a) the conclusion that the reason for Miss Lardier's dismissal on 31 March 1996 was redundancy (it was common ground from the outset of the proceedings that this had taken place on 31st March 1996: see the two originating application forms and the respondent's answer in the tribunal proceedings at pages 26 to 38 of the appeal file),

(b) the claim that she had been discriminated against on the grounds of her sex, and

[5]Miss Lardier told us that she had sought to have that judgment of this tribunal set aside, either by way of further appeal to the Court of Appeal or by way of review, but had been unsuccessful. The decision of 11 October 1999 that the matters which could properly be raised by Miss Lardier on the rehearing of her case at the Employment Tribunal in April 2000 were confined to her claims for breach of contract and unfair dismissal is therefore conclusive for all purposes. In view of it, no argument that the Employment Tribunal were in error of law in failing to extend their consideration to any further or wider issues sought to be raised by Miss Lardier can be entertained or possibly succeed.

[6]It is not necessary to go into the detail of the breach of contract and unfair dismissal claims themselves beyond saying that they arose out of events over a prolonged period between 1991 and 1996 when the British Gas group of companies was undergoing very substantial reorganisation. This involved the office in which Miss Lardier worked being moved and eventually closed down. Large numbers of staff had to be redeployed, the staff grading structure was substantially altered, and there were redundancies on a substantial scale.

[7]Miss Lardier was not satisfied with either the redeployment arrangements that involved her, or the grade she was placed in under the new grading structure. After an extended period of leave on full pay during which a satisfactory solution did not materialise, she was eventually made redundant on 31st March 1996. As noted above that was beyond doubt the effective date of termination of her employment for the purposes of the tribunal proceedings. The claims before the tribunal for rehearing in April 2000 were her complaints that the employers were in breach of her terms and conditions of employment both in relation to her redeployment, and in relation to her regrading, including the appeal procedure that should have been followed to deal with that particular dispute; and in addition, her claim that the employer had dismissed her unfairly by eventually making her redundant on 31 March 1996.

[8]The reason it is not necessary to go into the history of all this any further is that when the case came back before the tribunal for reconsideration of these issues at the end of April 2000 it was conceded by the employers at the outset of the hearing that there had been breaches of contract on their part and that Miss Lardier's dismissal had been unfair. They further indicated that they submitted to the tribunal making findings to this effect, and awarding Miss Lardier the maximum compensation she could be awarded by the tribunal under both of these heads, obviously in the hope of bringing an immediate end to both the proceedings and their involvement with her.

[9]On the basis of those concessions, at the conclusion of the proceedings the tribunal made awards of compensation and damages in favour of Miss Lardier as recorded in paragraph 15 of their extended reasons as follows:

"In the light of the Respondent's admission that it had unfairly dismissed the Applicant and breached the Applicant's contract, the appropriate remedy is for damages. The Applicant is not entitled to any basic award because her entitlement to basic award has to be set off against the redundancy payment made to her by the Respondent. The Respondent has agreed to pay her the maximum compensatory award applicable at the time of the termination of her employment on 31 March 1996 (£11,300.00) and her maximum entitlement to compensation under breach of contract (£25,000.00). The Tribunal orders the Respondent to pay the Applicant the sum of £36,300.00 which is the total of the compensatory award for unfair dismissal (£11,300.00) and the compensation for breach of contract (£25,000.00)."

As correctly recorded by the tribunal, those amounts were the maximum possible awards of compensation under the two heads at the relevant time: see SI/1995 No 1953 and SI/1994 No 1623 Article 10.

[10]The tribunal were however only able to proceed to make those awards of compensation after they had had to consider, and had rejected, lengthy contentions by Miss Lardier to the contrary which she maintained over three days of hearing. Her contention was that the respondents should be ordered instead to reinstate her or re-engage her in her previous employment: or rather, not in her actual previous employment, but in the higher employment grade for which she had contended all along, where she maintained they had been wrong not to place her. Having regard to the long and bitter history of continued and continuing dispute between the applicant and her former employers, the tribunal unanimously concluded that to order reinstatement or re-engagement in this case would be completely inappropriate; since, as they expressly found, the relationship of mutual trust and confidence between the applicant and respondent had completely broken down: see paragraphs 12 to 14 of their extended reasons.

[11]Finally, the tribunal exercised their discretion as they recorded in paragraphs 16 to 17 of their reasons to make an award that Miss Lardier should pay the Respondents £500 towards their costs, on the ground that in pursuing completely unrealistic claims for reinstatement and/or re-engagement against them over three hearing days she had acted unreasonably in the proceedings.

[12]Miss Lardier, who appeared and argued her own case before us, seeks to pursue an appeal to this Appeal Tribunal against that decision of the Employment Tribunal on a large number of grounds, set out in her Notice of Appeal dated 30th June 2000 at pages 1 to 3 of the appeal file, her skeleton argument dated 29th January 2001 which she placed before us, and the amplified submissions she made to us orally. We will deal with the points she made on the appeal in turn but first record that she prefaced her submissions by making a further complaint against the Employment Tribunal. This related to a separate application she had made to that tribunal for its decision of 29th May 2000 to be reviewed, which application had been stayed pending the outcome of this present appeal to us against the same decision. Miss Lardier said that although she had indeed made the review application to the Employment Tribunal she now considered it wrong for that tribunal to have retained any function in the matter at all. We record simply our understanding that any question of a review by the tribunal of its own decision will for practical purposes have been completely superseded by our present decision on this appeal, since we understand the points Miss Lardier was seeking to argue on both the appeal and the review application to be similar. All that is before us for decision is her appeal against the substantive decision of 29th May 2000, to which we now turn.

[13]Miss Lardier put forward 10 separate grounds which she said demonstrated arguable issues of law on which we should direct that her appeal should go forward to a full hearing of this Appeal Tribunal. Having carefully considered the written and oral submissions she made to us, we have concluded that there is no arguable point of law in any of them. We deal with them individually.(1) Miss Lardier contended that the tribunal had been wrong in not reconsidering the question of whether she had been dismissed by reason of redundancy on 31st March 1996 at all. She said this was not an issue which had itself been reviewed at the EAT level and she thought it should have been, though when pressed she said that she did not criticise the Employment Tribunal for this in view of the directions they had been given. This point is completely unarguable in view of the clear terms of the judgment of this tribunal given by Charles J on 11th October 1999 to which we have already referred.

(2) She said the tribunal had erred in failing to make specific findings on all the issues of fact she had wished to raise under the heading of her breach of contract claims, referring in particular to the period when she had been on "gardening leave". That too is quite unarguable since once it was admitted that the breach of contract claim succeeded and the maximum amount of compensation was payable, any further raking over the ground of factual disputes going back over many years would have been completely superfluous.

(3) She said that it was wrong for the tribunal to have restricted the compensation awarded to her to the mandatory limits under United Kingdom domestic law, as she wished the question of whether these limits were discriminatory and unlawful to be referred to the European Court of Justice. We sought to press her on the nature of the discrimination she was alleging and the extent to which this point had been relied on at all before the tribunal. We were left wholly unpersuaded that there was any arguable point of European law here of which the tribunal should have taken account (whether or not overtly raised before them) or which we should ourselves consider or refer to the European Court of Justice for a ruling. Miss Lardier suggested that the discrimination lay in the fact that different compensation limits apply to the different types of claim which may be made to a tribunal for breach of contract, unfair dismissal, discrimination and so forth, but failed to identify any relevant principle of domestic or European Union law to show that the point was worth further consideration.

(4) She said that the tribunal's failure to make a basic award of compensation was an error, because it was wrong to have applied the statutory offset for an earlier redundancy payment from her employers under s. 122(4)(b) Employment Rights Act 1996. She asserted before us that she had never accepted any money at all from the respondents; but again it was unclear the extent to which that had been argued before the tribunal. On this simple question of fact the tribunal were plainly entitled to accept and act on, as it appears to us they did, the details of the actual payment and acceptance of a sum of £16,749.25 compensation for redundancy provided by the respondents at the outset of the proceedings (see their grounds of resistance dated 31 July 1996 at page 36). On that basis the order made by the tribunal, and their decision in paragraph 15 of their extended reasons that she was not entitled to a basic award because of the redundancy payment, is squarely in accordance with the legislation.

(5) She said that the tribunal had been wrong in not ordering her reinstatement or re-engagement, and that the way the tribunal had dealt with this issue was unfair. Whether an order for reinstatement or re-engagement under s. 113 Employment Rights Act 1996 should or should not be made in a particular case is pre-eminently a matter for the judgment and discretion of the employment tribunal and we see no grounds whatever on which this tribunal can be criticised for declining to make such an order in this case. Even from the limited amount of material we have had occasion to consider for the purposes of this appeal, it is obvious beyond argument that the decision not to order reinstatement or re-engagement in this case was not only reasonable but entirely correct for the reasons the tribunal gave. No reasonable tribunal could seriously have considered making such an order given the long drawn out history of past and continuing grievance and mistrust disclosed here.

(6) Miss Lardier said that notwithstanding the award of the maximum compensation for breach of contract claims, the tribunal had erred in failing to list and record all the many instances in which she contended the employer had been at fault in breaking her contract of employment, in addition to her complaints about her "gardening leave" period already dealt with under (2) above. As with her submission on that issue, we consider this unarguable. The raking over of the details of past alleged breaches of contract is superfluous if the maximum compensation for all such breaches is agreed to be payable in any event.

(7) For similar reasons we also consider unarguable her seventh point which was that the tribunal had failed to address as a separate issue, and make factual findings about, a contention she wished to ventilate that the fact of her not being affiliated to a trade union had played a part in her being selected for redundancy. Again, once it was agreed that the maximum compensation for an unfair redundancy dismissal was payable in any event, the detailed reasons leading up to her selection became unnecessary to go into.

(8) Her eighth point was that one of her breach of contract claims (namely that in paragraph 2 in her Originating Application at page 30, stated as "Breach of Contract - Redeployment Policy") had in fact been a claim of racial discrimination and ought to have been so treated by the tribunal despite being put only as a claim for breach of contract. We were quite unable to see that the tribunal could in any way be said to have erred in dealing with that claim as what it said it was. In any case as already indicated the issues remitted to them by this Appeal Tribunal on 11th October 1999 were limited to breach of contract and unfair dismissal claims; this particular claim being identified at paragraph 43 of the judgment of that date as coming under the first of those two heads, and no mention at all of racial discrimination as an issue being made at that stage or included in the originating application at any stage.

(9) The ninth point was that the tribunal hearing had been unfair, in that the tribunal's findings were inconsistent with the evidence as to what employment vacancies there were as an alternative to redundancy and the possibility of the applicant's reinstatement. This did not appear to us to add anything to the other points made on factual issues. Insofar as it was intended as a separate point we were not satisfied it could provide her with any arguable ground of appeal.

(10) Tenth and last, Miss Lardier contended that the order for costs against her made by the tribunal was in her words "ludicrous" as being a perverse exercise of the tribunal's jurisdiction. She based this submission principally on what she said had been her own willingness to agree to an out-of-court settlement through ACAS, though making it clear that she considered this should have been at a higher figure than the maximum compensation awarded by the tribunal. However the tribunal's stated reasons for making the award of costs as set out in paragraph 17 of their extended reasons on page 14 were different: the order was made because the applicant had unreasonably pursued the question of her claim for reinstatement or re-engagement over a period of three days when this was quite unrealistic and the respondents had already indicated their agreement to pay the maximum possible compensation. In our judgment the tribunal's reasons as stated in paragraph 17 both explain and wholly justify the exercise of their discretion to award costs in those circumstances, and we can see no arguable ground for this tribunal to interfere with it. It appears to us to be a justified award as on the contrary it was Miss Lardier who was being perverse and unreasonable in the way she pursued and prolonged the proceedings.

[14]For those reasons we have not been satisfied that any of the points sought to be argued by Miss Lardier disclose any arguable point of law to warrant us directing that these proceedings should go any further. There was nothing in the remainder of her written and oral observations that added materially to the specific points we have dealt with, and we accordingly unanimously dismiss this appeal.

[15]At the conclusion of the hearing Miss Lardier made it clear to us that if our decision on any of the points she sought to argue was not to be in her favour, she would wish to pursue the matter further to the Court of Appeal. For the reasons given above we do not consider that any of what she sought to put forward merits further argument in any forum, and we accordingly do not grant leave to appeal.