MRS A WICKS v LEANDER CLUB [2003] UKEAT 1312_01_2702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1312_01_2702Case No Appeal No. EAT/1312/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A WICKSAPPELLANTLEANDER CLUBRESPONDENT
Before
Mr Recorder DuttonDate 27 February 2003
[1]APPEARANCES For the Appellant MR N D HART (Solicitor-Advocate) Appearing under the Employment Law Appeal Advice Scheme For the Respondent MISS J HEAL (Of Counsel) Instructed by: Messrs Sharman & Trethewy 1 Harper Street Bedford MK40 1PF MR RECORDER DUTTON QC This is an appeal and cross appeal from the decision of the Employment Tribunal at Reading on 5 September 2001. The Tribunal gave extended reasons which were promulgated on 18 October 2001. The matter came before the Employment Appeal Tribunal who ordered on 7 May 2002 that the matter proceed to a full hearing and directions were given. Directions were subsequently given in August 2002 permitting the Respondents to raise a notice of cross appeal.[2]At the hearing before the Tribunal the Appellant appeared in person with the Local Citizens Advice Bureau representative sitting by her side. Before us today she is represented by Mr Hart, a solicitor advocate and the Respondent is represented by Joanna Heal of Counsel. The Decision[3]The Appellant worked as house manager for the Respondent rowing club. The Tribunal found unanimously that she was unfairly dismissed on 31 March 2001 because she had not been consulted in connection with her proposed redundancy and the dismissal was therefore procedurally unfair. However, the Tribunal went on to find that even if there had been consultation it would have made no difference and in the circumstances they granted no remedy. The grounds of appeal and cross-appeal[4]The grounds of the appeal are first, that in concluding at paragraph 18 of the decision that there was no evidence to support the Appellant's assertion that there were functions of food and beverage managers available, the Tribunal acted perversely, in that there was such evidence now to be found at pages 28 and 29 of the appeal bundle. Second, the Appellant seeks permission to present new evidence now to be found at pages 20, 21 and 30-37 of the appeal bundle which she says establishes that at the time of her dismissal there was alternative employment available which the Respondent failed to discuss or offer her.[5]By the cross-appeal the Respondent contends, and here I summarise, that the Tribunal made an error of law, or acted perversely, in finding that the Respondent did not give sufficient warning to the Appellant at a meeting on 3 March 2001. It is said that the Tribunal failed when considering the overall fairness of the procedure followed by the Respondent to consider the further meeting held with the Appellant on 6 March 2001 and that in the circumstances this failure vitiated their decision as to the unfairness of the dismissal. Background Facts[6]This is a case where the Appellant contends in part that further evidence should lead to a different conclusion as to whether or not the result had there been consultation would have been the same. We therefore propose to recite in summary form the background facts from the Tribunal's extended reasons bearing in mind this challenge. The Appellant was employed as the house manager of the club until the termination of her employment on the grounds of redundancy on 31 March 2001. She had been employed at the club since February 1993, firstly, as head waitress, subsequently as deputy house manager, finally as house manager.[7]The Appellant's function as house manager was to be responsible for the purchase of bar goods, house keeping, liaising with the head chef and the front of house management functions. The management committee of the club formed the view that the catering side was making insufficient profits, and therefore instructed consultants for the view to improving the catering facilities. A report was prepared in December 2000 which was before the Tribunal in evidence, but has not been seen by us. That report was considered at the general management committee meeting held on 28 January 2001 in which a number of recommendations were made including the proposal that a new post of operations manager be created. This post would absorb into its functions the Appellant's role of house manager. On the evidence before the Tribunal that was a live-in post only, and in due course it was not found not to be a suitable alternative position for the Appellant for that reason.[8]The Tribunal records in paragraph 4 of its extended reasons that during the preparation of the consultant's report, the appellant was not consulted although the consultant did interview her staff. The club Secretary and Mr Codrington met with the Chairman of the club and the General Manager Mr Russell on 7 February to discuss the future operation of the club. Mr Russell put forward no alternative proposal for the Appellant's role becoming redundant and it was accepted in evidence before the Tribunal by Mr Codrington that it was at that meeting that the position crystallised that the Appellant's role would be redundant.[9]So the Tribunal has found that by or about 7 February 2001 it was known by management that the Appellant was to be made redundant. We will turn to this point later. Following a meeting between Mr Codrington and Mr Russell, Mr Codrington went on holiday for two weeks probably leaving on the same day. During that holiday he received an email from Mr Russell that put forward no further views the Tribunal records. On his return from holiday Mr Codrington arranged that there should be a staff meeting on 3 March to discuss the reorganisation. All staff attended that meeting. In the meantime on 28 February Mr Codrington wrote to the Appellant advising her for the first time that her position would be redundant.[10]At the meeting on 3 March Mr Codrington told all the staff that the Appellant would be redundant. The Tribunal records that the Appellant found the manner of the staff being told this humiliating. In paragraph 9 of their decision the Tribunal records the following:
"A private meeting was held between Mr Codrington and Mrs Wicks on 6 March. The contents of that meeting were confirmed by way of a letter to Mrs Wicks on 14 March. Mr Codrington stated "
I explained to you that the fact that the position of House Manager became redundant and with it your employment did not preclude you from making an application for the new position" [ie the position of operations manager]."[11]In due course the Appellant applied for the new position of operations manager and was interviewed on 21 March but that job was to be a live-in job and, by agreement between the interviewer and the Appellant, the interview was drawn to a close as the Appellant was not interested in a live-in post. Following that interview the Appellant was written to again confirming that her position as house manager "will be redundant as of 31 March" and she was paid a redundancy period sum of money and given notice pay. In addition there was an ex gratia payment.[12]It is worth observing here that nowhere does the Tribunal record specifically that it had received into evidence a memorandum from Mr Russell dated 30 March nor does it record specifically the Appellant's reply of 30 March, these documents to be found at pages 28 and 29 of our appeal bundle.[13]We have heard during the course of oral argument, as it is developed before us, that there was a considerable dispute at the hearing below as to whether Mr Russell's memorandum of 30 March was indeed authentic. The memorandum was relevant because it identified the possibility of a food and beverage management post becoming available, and the memorandum was sent on 30 March, i.e. before the termination took effect, and therefore during a period of relevance when considering the question of suitable alternative employment. The Tribunal's Decision[14]The Tribunal considered first whether the way in which the Appellant's dismissal had been handled was procedurally unfair. They concluded that it was stating in paragraph 16:
"We noted that Mr Codrington had known before he went on holiday in February that the decision had been reached that the applicant's post would be redundant. He made no alternative arrangements for another officer such as the Chairman or the Treasurer to speak to the applicant during his absence such that she was apprised of the situation before she attended the staff meeting on 3 March. Although he did send her a letter on 28 February it was too close to that meeting to enable her to consider fully her position or for her to feel that she was able to think about her position and explore further what options were available to her."
[15]We observe that another criticism made by the Tribunal is that steps were not taken between 7 February and 28 February or indeed 3 March to consult properly and fairly with the Appellant. Turning to the second question as to whether or not a fairer procedure would have made any difference the Tribunal state this in paragraph 18: "The evidence before us from the applicant was that there were other posts that she could have fulfilled and these should have been offered to her. The evidence of the respondents was very clearly that the only post available at the time of the consultation process in February and March was that of Operations Manager, which was the post the applicant could not or would not fulfil as she was not prepared to live-in. There was no evidence to support the applicant's assertion that there were functions of food and beverage managers available. Although those posts may have become available later, the evidence before the Tribunal was that the post that was available was also a live-in post and therefore not suitable for the applicant but in any event such points were dealt with much later. The respondent also said that there no other vacancies although the applicant asserted that some Assistant Manager posts were filled. There was no evidence to support that assertion and was inconsistent with the proposed restructuring as set out in the Consultant's report (sic)." [our emphasis] The Grounds of Appeal[16]It is convenient and perhaps logical to deal first with the cross appeal. It is contended in the Respondent's cross appeal that the Tribunal has failed to take into account the meeting of 6 March in determining whether or not the dismissal was procedurally unfair. Miss Heal argues either that the Tribunal's decision was perverse or that the Tribunal's decision is defective because it has failed to resolve an important live issue between the parties. In support of that argument Miss Heal has referred us to the passages in Harvey at paragraph 1704 which refer to the rule of practice (although she accepts not a rule of law) that "consultation with individuals will generally arise once they have been at least provisionally selected and will be for the purpose of explaining his or her own situation". That is said in the context of a paragraph referring to consultation involving a union; but there is no rule of law that indicates that the principle, albeit a principle of practice, does not apply equally where one has an individual. It seems to us that at the point which an individual has provisionally been accepted for redundancy then it is open to a Tribunal to examine what has happened in respect of consultation from that moment onwards.[17]In the circumstances we reject Miss Heal's contentions. It is clear to us the Tribunal had well in mind that there had been a meeting on 6 March and they recite this together with a letter of confirmation which came out of that meeting in paragraph 9 of their decision. When reaching their conclusion as to unfairness in paragraph 16 we consider, taking their reasons as a whole, that they did have the 6 March meeting well in mind. In fact the Tribunal found the dismissal to be procedurally unfair because consultation had not occurred shortly after 7 February when the relevant senior manager had reached the conclusion that the Appellant's job was to become redundant and he had decided to go on holiday.[18]It seems to us, using the phraseology to be found in Harvey , that this was the point at which the Tribunal was considering that the obligation to consult was arising, and it was only on 3 March, at a meeting attended by all of the staff, that the Applicant was told that she was to be made redundant. Nothing happened on 6 March to correct the unfairness. We doubt in any event that the Tribunal's criticism can be met by the fact of there being the private meeting on 6 March, but since we hold that the Tribunal had the fact of the meeting, and what took place at it, in mind when making its finding as to unfairness, we find that there was no error made by the Tribunal. By 3 March the club had in effect made an announcement as to redundancies.[19]We turn then to the two grounds of appeal. Again it is both convenient and perhaps logical for us to deal with the application to admit new evidence first. We remind ourselves of the principles. The principles upon which a Tribunal will exercise its discretion to admit fresh evidence, whether that evidence then be heard by the Appeal Tribunal, or if the Employment Tribunal, can be found in Wileman v Minilec Engineering Ltd [1998] ICR 318 321H - 322E to which we were helpfully referred by Miss Heal. These are first that the evidence could not have been obtained with reasonable diligence for use at the Tribunal. Second that not only must it be relevant, but that it would probably have had an important influence on the result of the case even though it need not be decisive. Third that it is apparently credible, although it need not be incontrovertible.[20]During the course of argument we were taken to the case of Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 in which the Court of Appeal made observations about the position where an Applicant for the Tribunal is unrepresented and circumstances may arise where such a person wishes to rely upon new evidence before the Employment Appeal Tribunal. Brooke LJ in the course of giving the leading judgment in that case said as follows by reference to the decision of Knox J in Barber v Thames Television [1991] IRLR 236:
"Knox J was wise to leave open the possibility that in the case of an unrepresented party justice might demand the Employment Appeal Tribunal to put right what appeared to be a glaring injustice even though strictly the evidence on which the unrepresented party sought to rely would have been available before the Tribunal. However I do not understand him to be envisaging the possibility that when a represented party has fought and lost a jurisdiction issue on agreed facts before the Tribunal it should then be allowed to resile from its agreement and seek a new Tribunal hearing in order to adduce evidence which would then be challenged and invite the Tribunal to decide the question of jurisdiction all over again on new facts."
[21]Further Miss Heal referred us to the case of Bingham v Hobourn Engineering Ltd [1992] IRLR 298 and in particular at paragraphs 13 and 16 where the Employment Appeal Tribunal referred to the question as to whether or not a litigant should be permitted to resile from a deliberate choice made as to whether or not to call a particular category of evidence. In paragraph 13 the Employment Appeal Tribunal refers to the argument and says:
"it was argued, a deliberate choice had been made [not to use a particular category of evidence] that choice was binding on the applicant and subsequent material that came into his hands should not be admitted at an appellate stage."
Again in paragraph 16 the Employment Appeal Tribunal said the following:
"The matter is not a question of whether enough trouble had been taken, but a question of a deliberate choice not to use this particular type of evidence, and in those circumstances it seems to us that that choice, be it right or wrong, is one which is binding and should not be allowed to be gone back on. Accordingly we do not allow this additional evidence to be adduced before us."
[22]We observe that the Employment Appeal Tribunal was there referring to a deliberate choice not to call a particular category of evidence. We consider the proposed new evidence against these principles. The evidence falls into two categories. First there was evidence as to the authenticity of the 30 March memo which we have at page 28 of our bundle which the Appellant contends could not have been obtained with due diligence prior to the Tribunal hearing. The memo itself comes from a manager of the respondents who was himself shortly to lose his employment and it is contended that he might not have been willing at that stage to come forward to give his evidence. In our judgment an unrepresented appellant is entitled to assume that a memorandum received from management and signed by a relevant manager is indeed an authentic document unless and until she knows that it is challenged and is then given an opportunity to call evidence to rebut the challenge to its authenticity. We consider that an applicant, particularly an applicant in person, in those circumstances is entitled to believe that an employer's document will be accepted as authentic and that it is against this background that we must judge whether with due diligence she could have called evidence as to its authenticity.[23]The Tribunal, for reasons which we come to later, has not dealt at all, we consider, with the question of authenticity of the 30 March memorandum at page 28 of the bundle. In the circumstances we cannot say precisely how the Tribunal has resolved this issue. We have been asked by the Respondent to consider or assume that the Tribunal did find that the 30 March memorandum was authentic but nevertheless went on to make its findings of fact even making that assumption. Be that as it may we would consider where the issue to be in relation to this first category of document, that is documents relating to authenticity, that if authenticity were in fact in issue and if the Tribunal had made a finding that the document was not authentic then in those circumstances the criteria as to accepting new evidence would in our judgment have been fulfilled and we would therefore have been entitled to rely upon this new evidence or direct that a new Tribunal should have it in mind were this to affect the decision. For reason which I will come to in a moment, there is no need for us in fact to rule upon the point.[24]The second category of evidence is evidence relating to the question of whether or not other jobs were indeed available at or shortly after the time of the dismissal namely the 31 March 2001. This evidence falls into a number of different descriptions. First there is a chronology which was produced for another Tribunal heard later in 2001; and second there are various witness statements which emanate from the Respondent, which tend to show that there was something of a shortage of employees, very shortly after 31 March 2001, and which would tend to indicate that there was both a need for a food and beverage manager not just one living in but also one living out. Were it necessary for us to have ruled on this topic, we would have concluded that the evidence was credible and was capable of being of importance in relation to the result of the case. We would therefore have considered that Limbs 2 and 3 would have been satisfied. As to Limb 1 we accept the Appellant's argument that the particular form of the evidence namely the particular witness statements which have been shown to us would not have been available but on the other hand there would have been witnesses we consider who could with due diligence have been found who could have spoken to the Tribunal at the time of this particular hearing such as for example the Appellant's daughter who also worked at Leander Club or perhaps Mrs Bardon who also worked at the Leander Club or others who were affected by the changes that were taking place at the end of March or in early April 2001.[25]In the circumstances therefore, we consider that Limb 1 of the test has not been satisfied for us to admit this new evidence here and we therefore disregard that evidence for the purposes of the balance of this appeal. That being said, it will be seen that we intend to direct that this case be remitted to a fresh Tribunal and in those circumstances the evidence can be explored before a fresh Tribunal but we have reached our conclusion without taking that evidence into account.[26]Turning then to the remaining ground of appeal we remind ourselves of the principles of law, which Miss Heal reminded us of, which are well known, and we must apply. We can only overturn the Tribunal's decision if the Tribunal's decision is perverse or if there is within it a misdirection of law or the Tribunal has failed to resolve a central issue in the case which has a material bearing on the outcome of the case. We have heard that there was a dispute about the authenticity of the 30 March memo from Mr Russell to the Appellant. In our judgment there is no reference at all to that evidential dispute that took place before the Tribunal. It is worth recording what the 30 March memo actually says:
"Dear Anne Mr Tony Curruthers Hon. Treas. Has asked me to mention to you that it looks as if we will be employing two assistant F and B managers, one of which will live in and another that will not. A job description will be drawn up shortly and we will insure you are sent a copy so you can apply for the latter of the two jobs if you feel it might be of interest to you. Regards Charles Russell General Manager"
[27]We observe from that, that this was a memorandum coming from the Respondents themselves in the form of their general manager, and it referred not only to the fact that there would be one live-in and one live-out job but also that a job description would be drawn up shortly and that management would ensure that the Appellant would be sent a copy so that she could apply for the latter of the two jobs if she felt it might be of interest. She responded on the same day at page 29 according to the memos, and assuming for the moment that they are authentic, saying that she would be interested in applying for the job and she looked forward to hearing.[28]We understand that the Respondents contended before the Tribunal below that circumstances changed after 31 March so that although jobs might have been envisaged as available at this time what was then envisaged as available subsequently was not but this has to be borne in mind against the background where they were also challenging the very authenticity of the two memos. It seems to us therefore that the Tribunal had to grapple with these evidential disputes. These were fundamental evidential disputes which needed to be resolved sufficiently clearly so that the parties knew how they had been resolved. In addition to that there were various witnesses before the Tribunal who gave evidence, and we have been taken to the Chairman's notes of the evidence in respect of this issue. First at page 7 of the Tribunal's notes is the evidence of Edward Bainbridge who when asked in his evidence in chief about a food and beverage manager position said:
'We have Food and Beverage Manager live-in position. Only one appointed not two - appointed minimum number of people necessary. Operations Manager running a lean ship.'
But when questioned by a member of the Tribunal, Mr Appleton, he said as to the 'Food and Beverage Manager - requirement. Have to ensure adequate live-in staff not necessary for the food and beverage function to live in.'[29]Mr Codrington on page 9 of our bundle was asked questions about Document 21 which was the memo from Mr Russell of 30 March which I have already referred. He said he had not seen the letter before. It was not on his file. He was asked about the memorandum of 30 March from the Appellant saying:
'I have seen this for the first time today.'
And in cross examination simply saying he had no knowledge of the letter of 30 March from Mr Russell. In addition to that the Appellant gave evidence and she had said that there were two Food and Beverage Manager positions. Required a live-in, could be adapted from me, would not have accepted live-in. Live out at £17,000. Would not consider £10,000-£12,000. Would have continued at a lower salary. Two assistants Ops Manager posts were interviewed in March but I only knew of one.[30]When questioned by the Chairman, Mrs Hill she said, as she was being asked about the authenticity of the document, as to why she had signed it. It seems to us that there were before the Tribunal questions and answers as to the evidence coming from the Respondents contained in the memorandum of 30 March relating to the availability of a Food and Beverage manager job which was a live-out job. So the Tribunal needed to determine in relation to this evidence whether the memorandum of 30 March did evidence the availability of a Food and Beverage manager job at 31 March, or for shortly thereafter. Was there a live-out Food and Beverage manager job which might have been available to the Applicant at some time on or after 31 March? Was the memorandum from Mr Russell authentic? Were others interviewed as the Appellant had contended – in so far as the memo did indicate availability, what was the result of that availability? Did circumstances in fact come about which so changed the situation that there was, as it happened, no job available on 31 March despite the memorandum of 30 March but one that did in fact become available shortly afterwards? Those therefore seem to us to have been the issues that needed to be resolved.[31]And we turn from there to paragraph 18 of the decision itself. In paragraph 18 the Tribunal says this:
"The evidence before us from the applicant was that there were other posts that she could have fulfilled and these should have been offered to her. The evidence of the respondents was very clearly that the only post available at the time of the consultation process in February and March was that of Operations Manager."
We pause there to observe that in fact the document at page 28, if it was as we are asked to assume found to be authentic evidencing in fact an additional job of Food and Beverage manager which was a live-out job. The Tribunal goes on:
"There was no evidence to support the applicant's assertion that there were functions of Food and Beverage managers available."
We pause there to observe that there was evidence in the form of a memorandum of 30 March as to which they needed to make findings. They go on across the balance of that paragraph to conclude as follows:
"There was no evidence to support that assertion."
That being an assertion that the Respondents also said that there no other vacancies although the Applicant had asserted that some assistant manager posts were filled. They say:
"There was no evidence to support that assertion and was inconsistent with the proposed restructuring as set out in the Consultant's report."
But there was evidence in the form at least of the memorandum coming from management. In our judgment and having considered very carefully the Respondent's contentions we conclude that this paragraph does contain a fundamental misdirection by the Tribunal. Plainly there was evidence as to the availability of other post not least in the form of the 30 March memorandum as to which there had been a substantial dispute which required resolution by the Tribunal.[32]It is urged upon us that within paragraph 18 we should be able to infer that the Tribunal was conducting its proper task of making essential findings of fact upon all of the issues which were fundamentally in dispute between the parties and that this is not a case where the Tribunal has either misdirected itself in or is its decision perverse. But as I have already recited there were a number of matters which the Tribunal was required to resolve and although we accept Tribunals operate under enormous pressures of time, and that we must not judge this document as we would, for example, the judgment of a High Court Judge, nevertheless we are unable to find within this paragraph either a correct direction as to what was the evidence before the Tribunal or indeed a correct resolution of the various issues as I have identified them before the Tribunal itself. In those circumstances and to that extent we uphold Ground 1 of the Grounds of Appeal and we will direct that the case be remitted to a differently constituted Tribunal for this issue to be resolved. [Discussion and submissions on whether direction should be to a differently-constituted Tribunal or the same one][33]Having heard the submissions that you have both made in relation to whether it should be remitted to a fresh Tribunal or not; we have considered the advantage of a Tribunal already familiar with facts having a case remitted to it in circumstances where it might be considered that there would be an advantage in the Tribunal that has already heard a great deal of evidence hearing the balance of the case. But in this particular case the finding in paragraph 18 on two occasions where a Tribunal has recited that there was no evidence of something where we consider that is flatly contradicted by a document indicating that there was such evidence, indicates to us that it is much better for this case to be remitted to a new Tribunal so that the matter can be considered afresh. In those circumstances we are going to direct that it be heard before a new Tribunal.