MISS C SIMPSON v KENSINGTON HOUSING TRUST [2001] UKEAT 941_00_0511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 941_00_0511Case No Appeal No. EAT/941/00 EAT/40/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS C SIMPSONAPPELLANTKENSINGTON HOUSING TRUSTRESPONDENT
Before
His Honour Judge J R ReidLord Davies of CoityDate 5 November 2001
[1]APPEARANCES For the Appellant The Appellant in person For the Respondent MR WILLIAM HOSKINS (of Counsel) Instructed by: Messrs Thomas Eggar Church Adams 75 & 76 Shoe Lane London EC4A 3JB JUDGE J R REID QC This is an appeal from a Decision of an Employment Tribunal held at London North, on 9, 10 and 11 May last year; the Decision was then promulgated on 13 June. By the Decision the Tribunal unanimously held that the Applicant, Miss Simpson's claim for constructive unfair dismissal was successful, that her claim to have been unlawfully discriminated against on the grounds of her sex was successful, but that her claim to have been discriminated against on the grounds of her race was unsuccessful. The question of remedy was adjourned until 10 July of that year and on 10 July there was a further hearing, the result of which was promulgated on 11 August.[2]At that further hearing, the Tribunal awarded a total of £6,002 in respect of constructive unfair dismissal, comprising a basic award of £1,150; £200 in respect of a loss of statutory rights and a compensatory award of £3,360 plus an award of £1,292 in respect of her entitlement to five weeks notice. In relation to the sex discrimination claim, they made an award of £1000 for injury to her feelings.[3]Miss Simpson was dissatisfied with this Decision and appealed to the Employment Appeal Tribunal. As a result of the preliminary ex parte hearing, her appeal was limited to one point, and an amended Notice of Appeal was put in to take that point. The substantive paragraph of the Notice of Appeal, as amended, reads:
"The Tribunal erred in law in failing to consider and decide whether the Applicant was unfairly dismissed contrary to section 99(1)(c) of the Employment Rights Act 1996 ("the 1996 Act") by reason of the Respondents failure to comply with section 77 of the 1996 Act by failing to offer her the suitable available vacancy of Housing Officer."
[4]We refer to the statutory provisions which are material are in the form in which they were at the material time. Section 77 of the Employment Rights Act 1996 as it then stood, and it has since been replaced, reads:
"(1) This section applies where during an employee's maternity leave period it is not practicable by reason of redundancy for the employer to continue to employ her under her existing contract of employment. (2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the ending of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with subsection (3) (and takes effect immediately on the ending of her employment under the previous contract). (3) The new contract of employment must be such that - (a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and (b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract."
Going on from there, Section 99 provides in subsection (1) - I read only the material part:
"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if - …. (e) her maternity leave period is ended by the dismissal, the reason (or, if more than one, the principal reason) for the dismissal is that she is redundant and section 77 has not been complied with."
[5]In addition to that I should refer to Section 95 which, is as well known, sets out the circumstances in which an employee is taken to be dismissed for the purpose of the Act and Section 98 which provides, for determining when a dismissal is fair or unfair. That is the statutory background. It is to be noted that Section 77 was not specifically set out in the Decision of the Tribunal, nor was it expressly referred to. The section would only have been material if there had been a suitable vacancy available which was not offered to Miss Simpson. It is clear that the section was brought to the attention of the Tribunal because, as Miss Simpson very fairly told us, it was specifically referred to in the opening page of her witness statement.[6]The facts of the case so far as they are relevant can be stated very briefly. Miss Simpson was a Tenant Services Officer with the Kensington Housing Trust. A time came when the housing trust determined that there must be a reorganisation. As a result of the reorganisation the post of TSO would vanish. The housing trust suggested to Miss Simpson that there was available to her the post of Customer Services Officer which was at a grade below her existing grade as a TSO, namely grade 4 rather than at grade 5. She took the view, and it was a view which the Tribunal upheld, that this was not a suitable post. She was told that she could apply for other vacancies, in particular she could apply for the post of Senior Customer Services Officer or she could apply for the post of Housing Officer. It appears that so far as the Employment Tribunal was concerned, they regarded the issue simply as whether the post of Senior Customer Services Officer was a suitable alternative post. As a matter of fact, they took the view that it was not and when it came to the remedy hearing they said this:
"The Tribunal accepted as a matter of fact that the Senior Customer Services Officer (SCSO) post was a promotion rather than suitable alternative employment and that the Respondent could not be criticised for not automatically redeploying her into that position."
They then went on:
"There was also available at Grade 6, subject to application and interview, the post of housing officer. There was ample evidence from the previous bundle [ie the bundle of the main hearing] that the Applicant was aware of the possibility of obtaining employment as a housing officer but she did not put herself forward for it. Nor did she put herself forward for the SCSO post. A further post of secretary became available but this was in the course of October of 1999 by which time the Applicant had already written to the Respondent that she no longer wished to work for them."
The gist of Miss Simpson's submission to us is that the Tribunal failed to consider Section 77 and in particular, failed to consider it in relation to the Housing Officer post which she says would have been a suitable post and which she suggests was something that was raised as a suitable post in the course of the hearing before the Employment Tribunal.[7]So far as the material before the Employment Appeal Tribunal is concerned, it is worth looking at the way in which this claim was raised here. There were three letters placed before us in which the issue was raised. Page 71 of the bundle is the first in terms of time, the letter of 25 August from the Personnel Manager, Ms Joanna Mark-Richards to Miss Simpson, and that says, at page 71, second paragraph:
"A meeting was arranged on 26 July 1999. In that meeting you were informed of the vacancies that were available, being the position of Customer Services Officer, Senior Customer Services Officer, and Housing Officer. Voluntary redundancy was still an option and you were asked to indicate which option you would prefer. You stated you wanted only a senior position and wanted to be redeployed to the Senior Customer Services Officer's job. You were therefore written to on 29 July 1999 confirming that you had applied for this position and were asked to make your application and attend an interview on 9 August 1999 at 2 pm. You did not file your application and a reminder letter was sent to you on 5 August 1999 asking you to do so by the morning of 9 August 1999 so that the panel could study your application prior to the interview. You did not make an application or attend the interview. You have now had three and a half months since the letter of 29 April 1999 in which to make a decision and as to which option you would prefer. KHT can wait no longer and whilst you have only indicated that you want to be redeployed into the Senior Customer Services Officer post, you have yet to complete an application form and be interviewed for this particular post in order to be properly considered for it."
[8]The response to that on 1 September was a lengthy letter from Miss Simpson and in it she said:
"I would like to make a correction to which you mentioned "you stated that you only wanted a senior position"
. I would ask you to refrain from fabrication any assumption to which I did not make. I sought clarification as to which position you were offering and referred to 2 letters…." She then refers to the two letters indicating that she would be interviewed and then overleaf:
"….you confirmed that the only suitable offer was the Customer Services Officer and I informed you I did not consider it to be a suitable alternative employment and explained why. The meeting was concluded that this was being referred back to Unison."
[9]Then thirdly, at page 14 of the original trial bundle, on 7 September, Miss Simpson wrote:
"Racial discrimination - no explanation as to why I am unsuitable for the Senior Customer Services Officer - in light of your recent comments not recruiting via the Voice. Also there are evidence to which suggested that equal opps is not applicable in terms of recruitment."
Then a little later on in the letter:
"7 Failure to offer me suitable alternative employment, assessment made without consultation in that a decision was made that the Senior position was deemed unsuitable"
So those were the contemporaneous letters.[10]There then followed, in terms of time the ET1, that is to say the application by which she began her proceedings. In this Miss Simpson wrote:
"My employers failed to notify me of my rights by failing to offer me suitable alternative employment. I requested clarification on the 17 June 1999 which my employers then advised that I was eligible to be offered any suitable alternative vacancies as well as the Senior Customer Services Officer's post or Customer Services Post."
And a little further down:
"My employers also sent me an application form for a Housing Officers post. However confirmation was written to Unison, that KHT did not deemed this post to be suitable alternative employment. I was given 3 days to apply."
[11]In the Decision of the Tribunal itself, there are two relevant passages, one at paragraph 12, page 20 of the bundle, which reads:
"12 In the event, several TST members, including Jennifer Thompson and Toks Odubekan, took the option of voluntary redundancy, which had the effect of opening to the Applicant the prospect of automatic redeployment to the post of CSO. She felt that she should have been offered automatic redeployment to the post of SCSO (which had been evaluated at SO1)…." that is to say 2 grades higher than her existing grade "….It was made clear to the Applicant that she would have to apply for that post. In his evidence, Mr Jackson made it clear that he did not think that the Applicant would have been up to it but that he would have been open to persuasion if the Applicant had applied for the post. There would have been an interview. In fact, the Applicant did not apply within the deadline set, which was 12 September 1999. She found the only available alternative of being redeployed to the position of CSO, ultimately on a Scale 4, unacceptable."
It will be observed that the CSO was at a lower level on the scale, being scale 4 rather than scale 5, though there was an offer to preserve pay for a two year period.[12]At paragraph 21 the Tribunal said, recording Miss Simpson's submissions:
"21 Miss Simpson submitted that her terms and conditions had been changed adversely by reason of the re-grading. She submitted further that she had not been made an offer of suitable alternative employment and contended that the position of SCSO was such alternative work. The meeting of 16 May 1999 was implementation rather than consultation…"
That is to say it was not a consultation about redundancy but merely telling the staff what was going to be done and she then goes on to deal with other points.[13]The remaining point is the passage to which I have already referred, in paragraph 2 of the remedies judgment, in which they point out the finding of fact that the Senior Customer Services Officer post was promotion rather than suitable alternative employment, and merely refer in passing to the existence of the Housing Officer post.[14]The situation seems to us perfectly clear, namely that the Tribunal were never asked to determine that Housing Officer was a suitable alternative post. There was no evidence to suggest that it was. The only reference dealing with that question of suitability at all is at page 31 in the ET1, where Miss Simpson has written:
"However confirmation was written to Unison, that KHT did not deemed this post to be suitable alternative employment."
In those circumstances, it seems to us inevitable that the Tribunal should have concluded, as they did, firstly that the SCSO post was not a suitable alternative post, and secondly that the more junior stage 4 post was not a suitable post as an alternative. The decision as to Miss Simpson's dismissal flowed from those findings. The Tribunal were right on those findings not to carry on and consider Section 77 and Section 99 because there was no evidence, nor any suggestion, of there being a suitable alternative post in the form of the Housing Officer post. Had the Tribunal done so, since the post was at a higher level, it seems inevitable they would have concluded that it was not a suitable post, but the situation never arose because Miss Simpson was not, at that stage, seeking to say that it was a suitable alternative post. She never applied for it, and we have no doubt that the suggestion made to us was a makeweight which came in after the event.[15]In the circumstances, ingenious though the point was that was thought up by Counsel for Miss Simpson - instructed through the ELAAS scheme on the ex parte application - there is no substance in it and the appeal will be dismissed.[16]There followed from it a second appeal relating to remedies. Miss Simpson, very fairly and sensibly, said to us that so far as that appeal is concerned, if her main appeal succeeded then she believed, and I think this was not contested, that her remedies appeal would succeed, in that the Tribunal would then have to reconsider the question of compensation, in the light of the findings under Section 77 and 99, but if she did not succeed in her main appeal, then there was nothing left in the remedies appeal. Since we have dismissed the main appeal, it follows that the remedies appeal should be dismissed as well.