MRS W M HEMSTEAD v LONDON BOROUGH OF BARNET [2002] UKEAT 1180_01_0511

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1180_01_0511

Case No Appeal No. EAT/1180/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS W M HEMSTEADAPPELLANT

LONDON BOROUGH OF BARNETRESPONDENT

Before

Mr Justice Burton

Date 5 November 2002

[1]APPEARANCES For the Appellant ROBERT TAYLOR Representative Free Representation Unit Peer House 8-14 Verulam Street London WC1X 8LZ For the Respondent MISS J BROWN (of Counsel) Instructed by: J E Lustig Borough Solicitor London Borough of Barnet Town Hall The Burroughs Hendon London NW4 4BG THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal by Mrs Hemstead who was employed by the London Borough of Barnet until August 2000, from the dismissal of her applications to the Employment Tribunal sitting in Watford on 16 August 2001 of her claims for unfair dismissal and damages for breach of contract of her employment.

[2]The facts were briefly summarised in the very clear Decision of the Employment Tribunal. She wrote a letter to her employers where she was Assistant Warden at the Barnet Countryside Centre, dated 23 July 2000, which read in material part as follows:

"Earlier this year I was informed by Peter Thorn, Chief Youth Officer, that my post would probably be made redundant when the services of the Centre were merged with those of the Environmental Centre at the Welsh Harp and that a report concerning the future of the Centre would be submitted to Council for their consideration. A report was submitted and approved by Council in May; the report stating that my post (along with that of the Administrative Officer) would be made redundant on 31 st August 2000. I made the assumption that I would be contacted by either a member of your staff or the Youth Service to discuss my options for the future - redundancy or redeployment. To date no-one has been in touch to let me know what my employment position will be at the end of August. I have of course made enquiries of my manager, Ian Limbrick, who spoke only last week to the Principal Youth Officer, Ken Byrell. The message I received back from him was that I would not necessarily be entitled to a redundancy payment if I could be redeployed elsewhere. I can certainly understand that this would be the case if I had made enquiries back in May when Council approved the report, but to give this response just two weeks before my redundancy notice is to be served seems completely unreasonable in the circumstances. Indeed as I was given to believe that I would be made redundant at the end of August and as no-one has been in touch to discuss redeployment with me, I have now obtained another job outside local government which I shall be starting on 1 st September 2000."

[3]Then she asked a number of questions which she wanted clarified. There were six bullet points. The first one was:

"Did the Council in May this year approve a report proposing that my post be made redundant on 31 st August 2000?"

The second bullet point was:

"Does the Council have a redundancy policy……"

The fourth bullet point was "Am I entitled to a redundancy payment and how much would this be?" And the sixth bullet point was:

"Is this the way all employees who are facing redundancy are treated by the Council?"

She concludes:

"I am sure you understand that it has been, and still is, an extremely difficult situation for everyone at Barnet Countryside Centre, all of whom face changes over the coming months. Facing redundancy is not a pleasant situation to be in but can be best coped with and planned for if all parties concerned act reasonably and with due consideration to each other. To date this has not been the case on the part of Barnet Council and I hope that your response will go some way to clarifying and hopefully rectifying the situation."

[4]An internal memo of the Respondent Council, dated 15 August 2000, read as follows:

"I am concerned that letters of redundancy have not been sent to ……Wendy Hemstead, although the committee approval was obtained on 6 May 2000. I assumed that your section would initiate these, and activate a redeployment process. Can you clarify for me who should have done what please? With regard to retrieving the situation, the following needs to happen: 1. Wendy Hemstead is not required beyond the end of August, and she has written to say that she has a new job from 1 September 2000. She says the letter is not a resignation letter, but she would not be available for work presumably. I suggest we pay her the £281 redundancy payment her service has entitled her to, and write to thank her warmly for her work."

On 10 August, five days earlier, a response had been written by Mr Westwood, on behalf of the Respondent to the Appellant's letter of 23 July, regretting that no one from the service had contacted her to discuss her situation and possible redeployment within the Council, and indeed apologising again for the way she had been treated and wishing her well.

[5]The letter, as the Tribunal found, of dismissal, was sent on 17 August 2000 by the Chief Youth Officer, and it read "Dear Mrs Hemstead REDUNDANCY NOTIFICATION The Resources Executive Committee, at its meeting on 6 th May 2000, decided to pursue the merger of the Barnet Countryside Centre with the Welsh Harp Environmental Education Centre in the London Borough of Brent. As a result of this decision, your post of Assistant Warden will become redundant on 31 August 2000. I regret, therefore, that I must give you formal notice that your employment with the London Borough of Barnet will be terminated on the grounds of redundancy with effect from 31 August 2000, this will also be your last working day. You are entitled to receive one month's notice. Notice will commence on Monday 21 st August 2000 and I will arrange for you to be paid in lieu of notice for the period from 1 st September to 20 th September 2000 inclusive." Then there was a reference to appeal rights and then reference to a redundancy payment which read as follows:

"The estimated redundancy payment to which you are entitled is £281.12."

There is then a reference to redeployment and to further assistance.

[6]That letter led to the termination of the Appellant's employment, as we have indicated, on 31 August 2000, and to the payments in accordance with the terms of that letter. The Tribunal concluded that there was neither unfair dismissal nor breach of contract, and the nub of their decision is recorded as follows, after setting out submissions on both sides:

"The Respondent further submitted that so far as the breach of contract matter was concerned, the 12 week redundancy period was simply a proposal contained in a report relating to those to be made redundant. Her contractual entitlement was one month and she received that contractual entitlement."

We shall return later to the twelve week redundancy period which is there referred to.

[7]Then the Tribunal continued:

"Having listened to the submissions made by the parties, in the light of the facts found, the Tribunal unanimously preferred the submissions of the Respondent. The Tribunal were unanimously of the view that the Respondent in the circumstances of this case could have treated the Applicants letter to them as a letter of resignation. That they did not do so and instead went on to give her notice and to pay her redundancy was to their credit. The Tribunal unanimously found: (i) The Applicant was dismissed (ii) The reason for that dismissal was redundancy (iii) In all the circumstances of this case the Respondent acted reasonably in treating it as a sufficient reason for dismissing the employee (iv) The Respondent were not in breach of the Applicant's contract, the Applicant being paid her contractual notice entitlement. In all the circumstances the Applicant's application for unfair dismissal fails, as does her application based upon breach of contract."

A handmade document was put together by the Appellant, who seems to have some experience in personnel, for the purposes of her appeal to this Tribunal, and it contains several pages.

[8]The appeal came before this Tribunal, differently constituted, chaired by Mr Recorder Langstaff QC, and he, at the preliminary hearing, gave permission in accordance with the judgment that he delivered on behalf of the Tribunal, giving leave for the appeal to proceed only on two grounds.

[9]The first ground can be shortly stated; it was, in fact, misconceived. Counsel instructed under the ELAAS scheme made a submission that the detailed provisions described as "Managing Change - the Employment Contract (Officer, Manual and Craft Employees)" which was one of the detailed documents incorporated by reference into the Appellant's contract of employment, was not before the Employment Tribunal, and Mr Langstaff said as follows:

"We consider that there is an arguable case (having been persuaded to that view by the submissions of Mr O'Dempsey who appears under the ELAAS Scheme that there is an arguable case) whatever its strength may ultimately be proved to be that if the Tribunal had had that document before it, and appreciated not just the persuasive force of past and present practice by the employer but also the contractual underpinning and obligation which the document revealed, the balance under s98(4) which may have been a fine one might have been struck differently."

[10]The Tribunal did not, as has now, it is to be hoped become usual, order an amended Notice of Appeal to be served. Had it done so it might be that the Respondent would have been able to apply on paper to discharge the permission given for the ground to proceed, based as it was under such a manifest misunderstanding because, in fact, as Mr Taylor on the Appellant's behalf has today accepted, instructed by the Free Representation Unit, the document in question was indeed before the Employment Tribunal. Indeed, one can go further in that even if it had not been, it hardly seems to us that it would have been a relevant point at all.

[11]It was accepted by the Tribunal in their Decision that the Respondent did not act in accordance with its own procedures, but concluded, and no appeal is made against that nor, in our judgment, could have been, that the Respondent was not to be criticised in the circumstances for not so doing. The Tribunal pointed to a submission made by the Respondent which they accepted, that the Respondent did not follow their procedure in this case because the Applicant's letter of 23 July had pre-empted such procedure, and we can entirely sympathise with such a conclusion, which is unchallengeable. It certainly would not have been affected by further concentration upon the document, which, as we have already indicated, in any event, was before them. There is therefore nothing in that ground of appeal.

[12]The second ground of appeal relates to the Appellant's case in respect of breach of contract, and the way that the matter was put before the Tribunal, chaired by Mr Langstaff QC, is that there was an assertion, which we have read, that the proposal for a twelve week redundancy, as it was called, to be "implemented in respect of those made redundant", was only a proposal, and the assertion was that there ought to have been disclosure by the Respondent of documents which would have further indicated whether or not it remained a proposal.

[13]The document which contains the proposal is a report of the Chief Youth Officer to the Resources Executive Committee, dated 17 May 2000. This document was before the Employment Tribunal, albeit it seems by error omitted, at least to start with, from the agreed bundle, so that it may be that the Appellant did not have as much of an opportunity as she would have wished to have looked at it. Nevertheless, it was before the Tribunal, and it recited recommendations by the Chief Personnel Officer to the Resources Executive Committee as follows:

" Recommendation/Conclusions (for decision by the Executive Committee) That the respective Heads of Service in consultation with the Chief Personnel Officer be instructed to issue redundancy notices to postholders, as indicated in the enclosure, subject to redeployment in order to protect the council's interests. That Employees be given 12 weeks notice which equals or exceed their statutory or contractual periods, with a termination date of the 31 August 2000. That the severance package comprise a redundancy payment based on the council's scheme calculated on actual earnings up to the first point of Barnet Band 4 …..plus for those over the age of 50 who have more than two years pensionable service, early release of pensions enhanced by 75% of the maximum under the council's scheme. That the respective Heads of Service be instructed to pursue redeployment opportunities and if appropriate, voluntary severance and retirement options, during this period, in accordance with the Council's policy, with the severance package referred to in 2.3 above being the last resort."

No further document was disclosed by the Respondent in this regard, notwithstanding the Order for general discovery

[14]Mr Langstaff QC said this in paragraph 7:

"The Tribunal in reviewing the evidence described that document as being simply a proposal contained in a report relating to those to be made redundant. The report was however to a committee of the Council. That committee would either have accepted or rejected, or possibly deferred, a decision on what was put before it as a recommendation. The order for general disclosure before the hearing should in our view have produced a copy of the minute showing how the body of the Council before whom it came dealt with the recommendation. There should be no need to describe the matter in evidence as being simply a "proposal": either it was a proposal which had been rejected, in which case one would expect that fact would have been recorded by the Tribunal, or was one which had been accepted in which case there may be force in the Appellant's claim."

And on that basis leave was given to pursue the second ground, coupled with an Order for disclosure. The Respondent has given disclosure since the preliminary hearing, pursuant to that Order; and the recommendation of the Chief Personnel Officer became "Agenda Item 21", as it now appears, because a further copy of that recommendation with the annotation, "Agenda Item 21" has been disclosed and there has been further disclosure of a document headed up "Decisions of the Resources Executive Committee" on the same date as the recommendation, namely dated 17 May 2000.

[15]That minute records at paragraph 19 an express reference to the report of the Chief Personnel Officer, Item 21, which reads as follows:

"APPROVED SERVICE PLANS 2000/2001 - REDUNDANCIES ARISING …….(Report of the Chief Personnel Officer - Item 21) The Chief Personnel Officer undertook to circulate to Members of the Executive Committee details of the service reviews which had resulted in the redundancies. RESOLVED - (1) That the respective Heads of Service in consultation with the Chief Personnel Officer be instructed to issue redundancy notices to postholders ……… (2) That employees be given 12 weeks notice which equals or exceeds their statutory or contractual periods, with the termination date of 31 August 2000."

We need not read the balance of the Resolution.

[16]In her Skeleton Argument, Miss Brown, who has appeared today on the appeal, sought to deal with this further disclosure, and, at paragraph 22 of the Skeleton, she referred to a document called "Decisions of the Policy and Implementation Committee" of 31 May 2000, which is the third of the three documents disclosed pursuant to Mr Langstaff QC's Order, and she pointed out that that document contained a decision regarding what she called the meeting of the Resources Executive Committee and its report dated 17 May 2000. She referred to paragraph 15 of that document, which was headed up:

"Report of the Resources Executive Committee 17 th May 2000" and the Policy & Implementation Committee, it seems, resolved that the following report of the Resources Executive Committee meeting held on 17 May 2000 be received. There is then recited a report of the Resources Executive Committee dated 17 May 2000, which is not the document to which we have already referred (and which was in fact headed up, as we have indicated, "

Decisions of the Policy and Implementation Committee" at their meeting) but was a report of the same date, seemingly made to the Policy & Implementation Committee.

[17]That report included a lengthy paragraph relating to the Barnet Countryside Centre, and included the fact that the proposals in relation to that centre would lead to some rationalising of staff levels, and to two posts becoming redundant, which was referred to in a separate report by the Chief Personnel Officer to the Committee. That, of course, is the report which was disclosed at the Tribunal below, from which we have already quoted.

[18]The conclusion which Miss Brown invited us to reach as a result of the disclosure, to which we have referred, since the preliminary hearing, was set out in paragraph 23 onwards of her Skeleton when she said:

"23 The Policy & Implementation Committee simply receives a report from the Resources Executive Committee and gives no approval to any particular staff proposal. Nor does it bring forward the September 2000 date for implementation of the proposals for the Barnet Countryside Centre. 24 The minutes and reports therefore bear out the Respondent's case before the ET that the 12 week notice period for redundancies from the Countryside Centre was a proposal which had not been implemented at the time the Appellant left the Respondent's employment."

[19]In the course of her submissions before us, Miss Brown was compelled to accept that that seemed difficult to support, and indeed for the purpose of much of her arguments before us, she was prepared to accept that it was not perfectly right, and it certainly seems to us not to be right. The report of the Resources Executive Committee which was, as she rightly points out, simply resolved by the Policy & Implementation Committee to be "received", did not, indeed, deal with the resource implications of the proposal for the merger, so far as concerned personnel, and did not deal, in terms, with the precise redundancy proposal. But the fact that the Policy & Implementation Committee did not deal with it on 31 May, because they were only receiving a report to them which dealt with matters of general policy, does not seem to us in any way to lead to the drawing of any conclusion contrary to that which screams out from the express terms of what are described as the Decisions of the Resources Executive Committee of 17 May, which expressly resolved on the terms which we have already cited, including the redundancy of, among others, the Appellant, and the terms to be paid and provided for as part of that enhanced redundancy package.

[20]It appears to us very likely that the Resources Executive Committee was the body making that decision on a final basis, and was then reporting to the Policy & Implementation Committee on other significant matters, as far as policy was concerned; but the difficulty that Miss Brown has is that it is plain that, whatever the proper construction of those documents may be, in case we were wrong in our own construction of it, a false or misleading statement was made to the Employment Tribunal, which they recorded in the passage we have already recited, that the twelve week redundancy period was simply a proposal contained in a report relating to those to be made redundant. On any basis, that proposal in the report which had been disclosed, was resolved upon by what appears to us to be the, but on any basis is a, relevant Executive Committee on that very day. In those circumstances, we conclude that the Employment Tribunal acted on, at the very least, a false basis when they reached the conclusion that they did; the consequence of that we shall come to in due course.

[21]Miss Brown then seeks to put forward an answer on the basis that there was indeed a resolution as to the introduction and implementation of that package, as opposed to its simply being a proposal, and she seeks to meet that in two ways. First, she points to the genuine approbation with which the Employment Tribunal greeted the decision of the Respondent not to accept the resignation of the Appellant, but instead to dismiss her themselves for redundancy, and she submits that out of that finding, there can be spelt a fallback position for her, in the event that she is wrong about the package only being a proposal. Her case is set out in paragraph 26 of her Skeleton as follows:

"In any event, as the ET found, ….the Respondent would have been entitled to consider that the Appellant had resigned with effect from 31 st August 2000. The Appellant herself waived any entitlement to longer notice from the Respondent by indicating her intention to leave on 31 st August 2000, before the Respondent had given her notice of termination."

[22]We conclude that that is wholly inconsistent with the Decision that the Employment Tribunal made, insofar as it is a suggestion that it is relevant that they could have treated her letter as a resignation, and that in some way we can substitute a finding that that they did treat it as a resignation letter. Plainly that is not available to us on the basis of the Tribunal Decision, but in any event it seems to us plain that it does not begin to be available, as it is a matter of fact and construction of the facts, not least in the light of the memo dated 15 August 2000, which we have cited, and the terms of the dismissal letter itself. But the way that Miss Brown seeks to put it is that there was a waiver by the Appellant of any entitlement. That appears to us to be unarguable. She waived nothing; the letter she wrote was not a resignation letter. Insofar as there might have been some implicit offer to resign, which we conclude that there was not, in the sense of not at least without a resolution of the points which she wanted clarified at the end of the letter, that offer was not, as the Tribunal found, accepted. If there was any waiver, the waiver was not accepted. The Respondent did not answer the letter by saying anything along the lines of "We could have accepted your letter as a resignation, but we do not, but we offer you something different from the redundancy scheme we otherwise would have included you into, along with the others" or "We do accept your resignation. You would have got a larger sum; we are sorry that you cannot get it, but as an ex gratia payment we will pay you a lesser sum". There was no waiver, in our judgment, even arguably given or accepted, at any rate, on the face of the findings of the Employment Tribunal.

[23]The second way that the matter was put by Miss Brown is that if the position had been fully disclosed before the Tribunal, and it had become clear, contrary to her own client's statement, that the proposal was not simply a proposal but had become a resolution, that, nevertheless, the Respondent was or would have been entitled to succeed. This would have been on the basis that even if a resolution was made on 17 May 2000 that the redundancy package to be offered to employees, on the basis of termination on 31 August 2000, was to be enhanced, this did not become a term of the Appellant's employment. She, no doubt like the others who did get an enhanced arrangement, would have known, and did know, nothing of the fact that there was such a resolution, and, consequently, it was not offered to her, but she was not contractually entitled to it, and all she was offered, and accepted, in the letter of dismissal was her contractual notice period, notwithstanding that she had herself been willing to leave on 31 August, extending for a further two weeks after 31 August, coupled with a statutory redundancy sum of £281.

[24]She submits that, in any event, this Appeal Tribunal could not now reach a conclusion that the Appellant was contractually entitled to the twelve weeks' notice, without remitting the matter back to the Employment Tribunal for further consideration as to whether the resolution of the Resources Executive Committee did result in incorporation of an entitlement into her contract of employment.

[25]We do not accept Miss Brown's submissions.(1) We are content to reach the conclusion we do that the package was resolved upon, and was not simply a proposal. We are not prepared to remit the matter to the Tribunal for further investigation of the factual context, in the light of: the persuasive nature of the documents, now that we have seen them, and we are prepared to accept that all relevant documents have now been disclosed by the Respondent, pursuant to Mr Recorder Langstaff QC's Order, so that nothing further would come out which could be looked at by the Employment Tribunal, which could lead them to a different conclusion to the one we have done. But if there were any kind of opportunity for further evidence from the Respondent, and further laying of the groundwork or setting of the context, they have deprived themselves of that opportunity by the false or misleading statement that was made to the Employment Tribunal. They have lost the opportunity to call the witnesses which they could have called below now.

(2) The issue of waiver or what could have been done by the Respondent instead of doing what they did, namely dismissing, is all now impossible to re-tread, not only because of the conclusions of the Employment Tribunal, but, because once again, even if the matter were remitted, nothing further could, in our judgment, come out, and if there were a call for further evidence to be given by the Respondent, for the same reasons as we have already indicated, we would consider it was wholly inappropriate for some discretion to be allowed for them to call further evidence, when the problem had arisen as a result of their own error.

(3) So far as the case is made by Miss Brown, that even if there was a resolution, it did not result in incorporation of any entitlement into the Appellant's contract of employment, our first response to that is that is an unfounded submission. Our construction of the position is that she was entitled to be part of a redundancy scheme, and that the redundancy package was enhanced by the Respondent as a result of their own decision of 17 May, whether it was imparted to the Appellant or not. She was entitled, as a result of her contract of employment, to participate in the redundancy process, albeit it that she did not know its precise details, provided, of course, that her termination date qualified, and her termination date of 31 August 2000 was in fact the very date incorporated into the package. But, in any event, quite apart from that, the Respondent's letter of 17 August 2000, as we have already indicated, might have been differently constituted if it had been intended to be some kind of ex gratia offer.

[26]It is quite plain that the Respondent was offering the Appellant the relevant redundancy package; the wording of the letter referred to what the Appellant was entitled to, and she was, in our judgment, entitled at that stage to be paid the redundancy package which had been resolved upon which was relevant to her post and, in any event, to employees being made redundant as a result of the proposed merger of the two centres. Insofar as the letter misstated what her entitlement was, she is entitled to the balance by way of damages for breach of contract.

[27]It is possible that had the error, to which we have referred, arisen otherwise than through the fault of the Respondent, we might have been more persuaded by an argument that, just in case there might be something in a proposition that after a full consideration of the factual context, such term or such entitlement might not have been incorporated into her contract of employment, we should remit the matter to the Tribunal; but for the reasons which we have given, we are entirely satisfied in our discretion that remission would be wholly inappropriate.

[28]In those circumstances, we are entirely satisfied that the Tribunal's Decision as to damages for breach of contract cannot stand; it was based upon a false premise. Therefore we must, in any event, set aside the decision of the Employment Tribunal. In the exercise of our discretion, we do not remit the Decision, but we substitute a conclusion that there has been a breach of contract and that the Appellant is entitled to the balance of the sum between twelve weeks' notice to which she was entitled, and the four weeks' notice for part notice and part payment in lieu, which she was given as a result of the letter of 17 August 2000, and to that extent, this appeal is allowed.