MS G M SHARP v THE LONDON INSTITUTE [2002] UKEAT 1206_01_0803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1206_01_0803Case No Appeal No EAT/1206/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS G M SHARPAPPELLANTTHE LONDON INSTITUTERESPONDENT
Before
MR COMMISSIONER HOWELL QCMR I EZEKIELMS G MILLSDate 8 March 2002
[1]APPEARANCES For the Appellant MR A SOLOMON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR COMMISSIONER HOWELL QC In this appeal which is before us today for preliminary hearing, Ms Gillian Margaret Sharp seeks to have set aside as erroneous in law the Decision of the London Central Employment Tribunal sitting on 5 March and 25 June 2001, rejecting her claims of unfair dismissal and sex discrimination against her former employers, the London Institute,for reasons the Tribunal set out a Statement of Extended Reasons sent to the parties on 20 August 2001.[2]The basic facts which gave rise to Ms Sharp making her Originating Application to the Tribunal on 14 December 2000, were that she had been employed by the Institute for some time in a temporary post on a succession of fixed term temporary contracts, and ceased to be so employed on 30 November 2000 when, as it is not in dispute, the Institute ceased to be able to afford to employ her in that post, in addition to its other employees in permanent posts.[3]Two of the permanent posts had, at or around that time, become vacant for periods of, at any rate, twelve months each. Again it is not in dispute that Ms Sharp was invited and encouraged to apply for one of those posts, and that she was also told that either or both of those posts would be available to her on a job sharing basis which was what she said she required.[4]However, she was not selected for either of those posts, because the Respondents held a competition and selection process open to external candidates as well as to her, and other candidates were selected. She, I think, was found to be the third most suitable candidate, so that she would have been selected if either of the other two more successful candidates had not chosen to take up the offers that they were made.[5]Her contention before the Tribunal was that in those circumstances she had been unfairly made redundant, and that for practical purposes, the only fair procedure for the Respondents to have adopted if they were going to eliminate the temporary post she had been occupying up until 30 November, was for her to be offered one of the permanent posts in preference to that post being laid open to external competition. The Respondents in their answer admitted that she was employed on a temporary contract and expressly confirmed that they did not rely on any waiver provisions applying under the legislation in force prior to 30 November 2000.[6]The Decision of the Tribunal, having heard the evidence both oral and documentary from both sides, was that in fact, when one analysed the situation, it had not been a true case of redundancy, but that as the Respondents had contended the funding arrangements, under which they had funds available to provide for temporary posts down to 30 November 2000 but not thereafter, meant that the termination of the Applicant's temporary contrary on 30 November 2000 had been for some other substantial reason, under section 98 of the Employment Rights Act 1996. In those circumstances, by discussing the situation with her, and enabling her to be considered for one of the permanent posts for which core funding was available, on equal terms with other candidates, they had treated her fairly.[7]Those contentions were accepted by the Tribunal which accordingly rejected her complaints of unfair dismissal, and of discrimination against her on sexual grounds in that, as a temporary fixed term employee, the decision to bring the temporary employment to an end had impacted on her as a female employee less advantageously than it had against the permanent employees of the Institute.[8]Against the Tribunal's Decision Ms Sharp first sought to contend, at the Tribunal level, that the decision that her dismissal had taken place for some other substantial reason, in the expiry of the funding for her temporary post, had been mistaken as a matter of fact. She made an application for the Decision to be reviewed on that account, and that application was rejected by the Tribunal Chairman, Mr Menon, in Extended Reasons sent to the parties on 22 October 2001, which are before us in our appeal file at pages 30 – 34 inclusive.[9]Having been unsuccessful in her application to have the Decision set aside at Tribunal level, Ms Sharp then sought to pursue the matter by way of appeal to this Appeal Tribunal on grounds set out in her own hand in her Notice of Appeal, dated 28 September 2001, contending first that the Tribunal's Decision was inconsistent with the evidence, and based on substantial and numerous errors of fact relating to the nature and funding of her work.[10]As stated in the Notice of Appeal, she confirmed that she did not wish to contest the sex discrimination decision. However, Mr Solomon, who has appeared on her behalf under the ELAAS scheme before us this morning, and to whom we are grateful for his assistance, has sought, by way of application for amendment to that Notice of Appeal, to reopen the question of whether the Tribunal's Decision on sex discrimination was correct as a matter of law.[11]The reasons which led the Tribunal to conclude as it did, and to decide the case on the basis that the funding considerations had been the reason for Ms Sharp's dismissal, and had amounted to some other reason within section 98, appear from a number of points in the Extended Reasons, of which it is only necessary for us to refer to a few passages.[12]First, in paragraph 3 of their Extended Reasons, where the contentions of the parties at the outset of the hearing are recorded, it is notable that, on the Respondents' behalf, Ms Winstone, of Counsel, who then appeared for them, made clear that as regards the unfair dismissal claim, the Respondent Institute had at the time felt that there was a redundancy, as the Applicant had been filling in for the previous nine months and, in fact, it is not in dispute that she was offered and paid a sum by way of a redundancy payment at the time. Nevertheless, the contention as to the reason for her temporary employment having been brought to an end, was stated as follows:
"The external funding for her temporary post had dried up. She was additional to the 8.8 core-funded posts. Some other substantial reason brought about by restructuring on the demise of external funding."
[13]And then in paragraph 8 where the Tribunal's findings as to the undisputed facts, and/or the facts found by the Tribunal itself, were set out, it is recorded in subparagraph (8) that:
"In May 2000, the Applicant approached Ms Rowles" [Ms Rowles was the full-time permanent member of the Careers Service whose post as a Careers Adviser was one of the permanent posts the Applicant was subsequently invited to apply for] "
The Applicant approached Ms Rowles to express her concern because her fixed term contract would end on 30 June 2000 and she wanted to know if there was any possibility of it being extended. Mr Rowles spoke to Mr Imeson" [who was another member of the staff] "and it was agreed that the contracts of the Applicant and Ms Shieff" [who was another temporary employee] "would be extended by a month until 31 July 2000. In January 2000, the Pro-Rector had agreed to provide a six-month staffing addition for a Careers Adviser post and match funding for a six-month supernumerary post awarded to the London College of Fashion - i.e. a post funded for 12 months. As the person appointed to [that] post had left and there was funding remaining for four months from that vacancy, the Respondent was in a position to extend the temporary contracts of the Applicant and Ms Shieff for a further four months from 31 July to 30 November 2000. On 22 May 2000, Ms Rowles wrote to the Applicant and Ms Shieff as follows:
"Extension of your temporary contracts. Further to our conversation a week ago I write to confirm that your contract will be extended as follows: One month extension from 30 th June to 31 st July 2000 Four month extension from 31 st July to 30 th November 2000 With thanks Valerie"
On 24 May 2000 Mr Holden [a member of the staff] wrote to the Applicant confirming that her existing temporary contract had been further extended until 30 November 2000."[14]In the succeeding paragraphs of the Tribunal's findings of fact, it was recorded that the positions of a Mr Ferguson and Ms Rowles - who were both permanent members of the staff - became vacant by reason of staff movements and a one year sabbatical. In consequence there were vacancies for permanent core-funded posts which were advertised in September 2000, and those were the permanent positions that the Applicant was invited to apply for and did apply for, though, unhappily, unsuccessfully.[15]The question of funding was also referred to in the Respondent's closing submissions, at the conclusion of the evidence recorded in paragraph 10 of the Tribunal's Extended Reasons as follows:
"(2) Technically there was no redundancy situation. The Applicant was a special case and had been treated favourably as though she was a redundancy case. She had been paid redundancy payment, the Outplacement and Counselling facilities had been offered to her, and she had been considered for vacancies.. (3) The Respondent had been for many years the recipient of external funding for additional Careers Advisers on the basis of DFEE and HEFLEE (essentially Government) funding. The circumstances at the end of 1999 were that this external funding source for the Careers Department simply ran out as Government aims changed to other areas. Funding was available to extend the Applicant's temporary contracts until 30 November 2000."
And in paragraph 10(8):
"The Applicant was dismissed for some other substantial reason – there was no funding for her temporary post after 30 November 2000."
[16]Those contentions were, basically, accepted by the Tribunal, having regard to the facts it found on the evidence, and as recorded in paragraph 12(b) of their Extended Reasons under the heading "Unfair Dismissal" the Tribunal's conclusions were that:
"It is not in dispute that the Respondent did dismiss the Applicant within the meaning of section 95(1)(a) of the 1996 Act. There was no redundancy situation within the meaning of section 139(1) of the 1996 Act. The work carried out by the Applicant did not cease nor diminish. She was dismissed, not because there was no work for her but because the funding for her temporary post had ceased. The Respondent has shown that the reason for the Applicant's dismissal was "some other substantial reason" within the meaning of section 98(1)(b) of the 1996 Act. The Applicant invited and did apply for other vacancies - Ms Rowles' previous permanent Careers Adviser post and the temporary one-year fixed term post created by Mr Ferguson going on sabbatical leave. It is not correct to state that she should have been given one of the jobs without the Respondent following correct selection procedures. As there was no redundancy situation, she could not be "slotted in" nor could the vacant posts be "ringfenced"
. It would have been contrary to equal opportunities policies if the Respondent had not appointed the best candidate after advertisements and interviews. The Tribunal rejects the Applicant's argument that the Respondent should not have advertised or conducted interviews for the posts and that they should have offered it to her without requiring her to compete with others. The Applicant was unsuccessful in her application for the two vacancies because two other candidates were adjudged on genuine grounds to be better than her and not because she had applied for the jobs on a part-time or jobshare basis. She makes no complaints about the way the Respondent conducted the interviews for the two posts on 13 October 2000. That left her with no job when her temporary fixed term employment contract ended on 30 November 2000. In all the circumstances of the case, the Respondent did not unfairly dismiss the Applicant under section 98(4) of the 1996 Act."[17]Her contention, before the Tribunal and before us, was that her dismissal, by reason of the termination of her temporary fixed term employment had been unfair because, first, the situation had been one of true redundancy, in particular because the funding for posts within the Institute was, in her contention, a matter of funds being generally available, and the bringing to an end of her contract should have been viewed as a general reduction of one post within the Careers Department of the Institute. Consequently, her contention following from that was, secondly, that the only proper procedure in those circumstances if it had been decided that her post had to go, should have been that she should have been appointed to the permanent post, without it being made available to competition. That was rejected by the Employment Tribunal for the reasons in paragraph 12(b) of their Extended Reasons which we have already quoted.[18]The Tribunal was thus satisfied, on the facts and the evidence, that the reason for her temporary employment coming to an end at 30 November 2000, was the expiry of external funding for such posts, and consequently, that that amounted to some other substantial reason. It was not a situation of redundancy and the Applicant had been treated fairly in relation to the possibility of a permanent post, including on a job-sharing basis, which she wanted.[19]Her application to the Tribunal founded on the contention that that factual conclusion as to the reason for her dismissal, and in particular, the reason relating to the funding of the temporary posts, was wrong, was made by a letter dated 1 September 2001 stating that:
"the basic premise of the decision given in para 12b) "she was dismissed because ….the funding for her temporary post had ceased" is an error of fact. At the time of the dismissal, I was not being paid via external funding and this had been so for more than a year."
That factual contention was dealt with in detail in the Employment Tribunal Chairman's Extended Reasons for declining her application for a review, which is before us.[20]On the appeal, the points Mr Solomon argued before us on her behalf were all, as he agreed, substantially based on that same contention: that the Tribunal's finding as to the reason for her actual dismissal, leading to the conclusion that it was for some other substantial reason, and justifiable, was factually incorrect and unjustified by the evidence before the Tribunal.[21]Once Mr Solomon was able, if he is, to displace that finding of fact, then it followed, he said, from that, that there were arguable points that: first the Tribunal had erred in holding that this was not a true redundancy situation at all. Second, that following from that again, they had failed to address questions of a fair selection criteria on a redundancy basis, and third, the additional argument which he sought to add by way of amendment to the Notice of Appeal, that the Tribunal had erred in not accepting that the selection of Ms Sharp as a fixed term employee as being the one whose employment was to come to an end, had unfairly and indirectly discriminated against her as a female employee, because of what was contended to be the predominance of female employees in fixed term temporary employment, as distinct from permanent posts.[22]Mr Solomon did, however, agree that that entire argument depended on us being satisfied that the Employment Tribunal's finding as to the actual reason for her dismissal was erroneous and based on a misdirection as to the effect of the evidence before it. We have considered that argument, but we have not been satisfied that arguable grounds have been shown to us to warrant our accepting it, or to warrant our sending forward this appeal to a full hearing, inter partes, before the Employment Appeal Tribunal.[23]In the first place, we do not accept Mr Solomon's argument that the Tribunal's findings, as recorded in paragraph 8(8) of their Extended Reasons, which we have read, made as they were in the context of the Respondents' contentions, recorded in paragraphs 3 and 10, as to the important difference between core and external funding for posts at the Institute, did not justify the factual conclusion which we think the Tribunal plainly reached. As recorded in paragraph 12(b), they said, the factual reason for dismissal was not because there was no work for her to do, but because the funding for her temporary post had ceased. That appears to us to be plainly justified by the findings recorded earlier in the Tribunal's Decision.[24]Secondly, we are reinforced in that view by the very careful and detailed Decision of the Employment Tribunal Chairman himself on Ms Sharp's application for the Decision to be reviewed in relation to that specific issue. As he records in paragraph 7 of his Extended Reasons for that later Decision on review, he rejected the Applicant's submissions for the following specific reasons:
"(1) The Tribunal's findings of fact on the funding aspects of the various posts held by the Applicant are set out in paragraph 8 of the Tribunal's decision and are based on the evidence given at the hearing, particularly the documentary evidence (see paragraph 8 of the Tribunal's decision) and the written witness statement and the oral evidence of Ms Valerie Rowles. The Applicant might disagree with the evidence of Ms Rowles but the Tribunal preferred, as it was entitled to, to accept the evidence of Ms Rowles. (2) It has never been in dispute that the Applicant and Ms Shieff covered for Ms Rowles' post as Careers Adviser during 1 September 1999 to Autumn 2000 and that a temporary one-year Career Adviser's vacancy occurred as a result of Mr Robert Ferguson's sabbatical leave during the period 3 July 2000 to 4 July 2001 (see paragraphs 8(7) to (9) of the Tribunal's decision. It is not in dispute that those posts were, and are, core-funded posts. (3) The Applicant's difficulty is that her argument that the core-funded vacancies should not have been advertised but should have been offered to her on a permanent part-time basis was rejected by the Tribunal for the reasons stated in the decision (see paragraph 12(b) of the Tribunal decision). See also paragraph 6 of the Tribunal's decision. Core funding would have been available to cover her post only if she had succeeded in obtaining the permanent Careers Adviser vacancy created by Ms Rowles' promotion or the temporary Ferguson vacancy. Therefore, on the expiry of their temporary appointment to cover for Ms Rowles' absence, there was no core funding to cover for their fixed-term contract which would have expired on 30 June 2000 but for the one-month extension to 31 July 2000 and further extension to 30 November 2000 (see paragraph 8(8) of the Tribunal Decision where the Applicant herself approached Ms Rowles in May 2000 to express her concerns). (4) The Applicant did apply for the core-funded permanent Career Adviser vacancy created by the promotion of Ms Rowles and the one-year vacancy created by Mr Ferguson's sabbatical but she was unsuccessful (see paragraphs 8(10 to (18) of the Tribunal's decision). As a result, her fixed-term employment contract could no longer be core-funded after 31 July 2000 or 30 November 2000. The other funding source for her post (see paragraph 8(8) of the Tribunal's decision) ended on 30 November 2000. There was no core or any other funding source for the Applicant's fixed term temporary post after 30 November 2000. There was no core funding because Ms Douglas and Mr Goodall, two external candidates had been appointed to the two core-funded vacancies – the Rowles and Ferguson vacancies – respectively (see paragraph 8(18) of the Tribunal's decision). There was no misunderstanding by the Tribunal of the changing sources of the funding for the Applicant's posts. Because of her failure to obtain the vacant Rowles or Ferguson posts, there was no funding of any nature to sustain or prolong her fixed-term contract beyond 30 November 2000. (5) The Applicant's employment was terminated with effect from 30 November 2000 for the reasons stated in paragraph 8 of the decision (see, in particular, paragraph 8(19) and (20) ). (6) The Applicant is in reality seeking to reopen and re-litigate her arguments which were rejected by the Tribunal and she is seeking a reversal of the findings of fact which she disagrees with."
[25]That, in our judgment, provides a clear and conclusive explanation of the reasons why the Applicant's complaints and her application for a review failed before the Tribunal, and also why there is, in our judgment, no arguable point of law to warrant our directing that this appeal should go forward to a full hearing. For those reasons, we unanimously now dismiss this appeal.