1) MRS L CANDICE 2) MRS B M KEEFE v BARCLAYS BANK PLC [2002] UKEAT 1349_01_2405

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1349_01_2405Case No Appeal No. EAT/1349/01 & EAT/1301/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) MRS L CANDICE 2) MRS B M KEEFEAPPELLANTBARCLAYS BANK PLCRESPONDENT
Before
His Honour Judge Peter Clark Mrs J M Matthias Mr G H WrightDate 24 May 2002
[1]APPEARANCES For the Appellant MR QUINN (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME JUDGE PETER CLARK: We have before us, by way of a preliminary hearing, the appeals of Mrs Keefe and Mrs Candice, two of three Applicants before an employment Tribunal sitting at Stratford on 18 – 20 June 2001, the other being a Miss Oakley, against that Tribunal's reserved decision, promulgated with extended reasons on 18 September, dismissing their complaints of unlawful sex discrimination and unfair dismissal brought against their former employer, the Respondent Barclays Bank Plc.[2]The Tribunal's findings of fact and reasoning is fully set out in their written reasons. The Applicants were long–standing employees of the Bank; both were job-sharing part-time supervisors. Each was dismissed by reason of redundancy effective on 22 April 2000. As to the complaint of unfair dismissal the Tribunal found that, unhappily, the Appellants were, for sound business reasons, surplus to the needs of the business in a job-cutting exercise which saw the number of jobs in their department reduce from 140 to 68. They were redundant. The Tribunal found that the dismissals were effected following proper consultation with both the Appellants and the trade unions, applying appropriate criteria for selection. The Appellants did not take up the opportunity to seek alternative employment with the Bank, so the Tribunal found.[3]The complaints of indirect sex discrimination failed because the Tribunal did not accept that the Bank imposed a requirement or condition that employees be full-time, or put the other way, discriminated against the Appellant as part-time employees, whether directly or indirectly.[4]In these appeals, which, like the Tribunal below, we have heard together but considered separately, each Appellant settled her own grounds of appeal and prepared a skeleton argument in support of those grounds. We can say shortly, that whilst the sentiments there expressed, we have no doubt, are genuine, they do not give rise to an arguable point of law fit to go forward to a full appeal hearing. Our jurisdiction is limited to correcting errors of law, Employment Tribunals Act 1996 section 21(1). However today they have the advantage of representation by counsel, Mr Quinn under the ELAAS pro bono scheme. Mr Quinn has formulated 2 grounds of appeal which apply equally to both Appellants. The first is that the Tribunal displayed bias against the Appellants and he gives one example. At paragraph 22 of their reasons the Tribunal say this:
"As at 16 August 1999, there was produced a chart showing a revised structure of the New Business section; a document referred to as the 'family tree'. It appeared not to include the three applicants and it is entirely understandable that they saw themselves as being 'air-brushed' out of existence and part of a pre-conceived plan to dismiss them. Having heard from Mr Andrews on the matter, we are satisfied that, albeit clumsily handled, there was no sinister motive. The chart was prepared to illustrate some changes to the section and, since the applicants were not affected by those changes to the section and, since the applicants were not affected by those changes, it was not thought necessary to include their names. At times of insecurity it is easy for signals to be misunderstood."
[5]Mr Quinn submits that the Tribunal were wrong to accept Mr Andrews' explanation and that in doing so they exhibited bias against the Applicants. He had put before us a document showing an organisational chart dated 23 August 1999, one week after the first version was published. That, we are told, adds the name of 5 employees including these two Appellants and shows that there had been an organisational change affecting them, their line manager changed. In these circumstances, submits Mr Quinn, the decisions in these 2 cases ought to be arguably set aside. We cannot accept that submission.[6]It seems to us, having seen evidence on this point, that it was a matter for the fact finding Tribunal, the Employment Tribunal, to decide whether or not they accepted the explanation given in evidence by Mr Andrews on behalf of the Respondent or whether they put a more sinister connotation on the absence of the Appellants in the family tree, as the Appellants urged. We cannot retry the facts.[7]Secondly, Mr Quinn refers to an observation made by the Tribunal at paragraph 31 of their reasons. In one sentence they say this:
"Had the applicants not let their strong feelings get the better of their judgement, an alternative to dismissal might have existed."
Mr Quinn submits that the Tribunal was there expressing their disapproval towards employees of long standing in their reaction to being dismissed. Put in that way, that sounds a forceful submission. However, we are reminded of Lord Russell's observations about not taking a fine tooth comb through Tribunal judgments. We should put that single sentence into context. At paragraph 27 of their reasons, the Tribunal say this:
"It is perhaps, a reflection of the strong feelings engendered by their dismissals that none took advantage of the opportunities, during the six month notice period to pursue the possibility of the of employment of the respondent in some other category."
[8]That was the Tribunals finding of fact and it is referred to again in their conclusion at paragraph 31. We can see nothing offensive let alone appealable about that observation. The Tribunal in considering the fairness of dismissal by reason of redundancy were required to consider whether or not the Respondent took reasonable steps to find alternative employment for the Applicant. They found that there was no failure in this respect on the basis of those findings of fact. We can see nothing exceptional about that finding.[9]In these circumstances, having considered the way in which the case is ably put on behalf of the Appellants by Mr Quinn, we are driven to conclude that these appeals raise no arguable point of law and consequently they must be dismissed.