ROBERT BROWN v AIRWAY HANDLING LTD [2006] UKEAT 0028_05_0504

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0028_05_0504Case No Appeal No. UKEATS/0028/05Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
ROBERT BROWNAPPELLANTAIRWAY HANDLING LTDRESPONDENT
Before
Lady Smith Miss J Gaskell Miss A E HibberdDate 5 April 2006
[1]APPEARANCES For the Appellant Mr Bathgate, Solicitor Messrs Allan McDougall & Co Solicitors 3 Coates Crescent Edinburgh EH3 7AL For the Respondent Ms Stark, Advocate Scottish Engineering 105 West George Street Glasgow G2 1QL SUMMARY The claimant was employed as a Senior Ramp Agent at Edinburgh Airport by the respondents. In 2002, he was convicted of two charges of assault and an offence under the Criminal Procedure (Scotland) Act 1995. In 2003, the DTI issued regulations which required a criminal record check to be carried out in respect of all airport employees. In April 2004, the claimant's security pass was withdrawn by the British Airports Authority after the provision of a report on his criminal conviction. The claimant was accordingly dismissed, it being conceded on his behalf that he was dismissed for a potentially valid reason. There was evidence before the tribunal that the respondents had considered and checked for alternative employment for the claimant but none was available. The tribunal held that he had not been unfairly dismissed. Before the Employment Appeal Tribunal, it was argued that the tribunal had erred in that they had approached their consideration of the case as if there was onus on the claimant to aver and prove the availability of specific suitable employment and his suitability for it, when there was not. The Employment Appeal Tribunal were satisfied that the tribunal had not fallen into any such error and, in any event, the respondents had led clear evidence that they had looked at and considered whether there was any possibility of finding alternative employment for the claimant. THE HONOURABLE LADY SMITH Introduction This case concerned a claim for unfair dismissal. An Employment Tribunal sitting at Edinburgh, Chairman Mr A MacArthur, found, in a judgment registered with extended reasons on 28 January 2005, that he was not unfairly dismissed.[2]The claimant was represented before the tribunal and before us by Mr Bathgate, solicitor. The respondents were represented before the tribunal by Mrs Miller, solicitor and before us by Ms Stark, advocate.[3]This judgment represents the views of all three members. We shall refer to parties as claimant and respondents. Facts[4]The relevant facts were as follows. The claimant entered the respondents' employment in 1999. In 2004, he was working with them as a Senior Ramp Agent. He was regarded as a good employee. His post required him to work "airside" and, accordingly, required him to have a valid security pass. In October 2002, he was convicted of two charges of assault and a charge of a contravention of a provision of the Criminal Procedure (Scotland) Act 1995 at Edinburgh Sheriff Court. In July 2003, the Department of Trade and Industry issued new regulations the effect of which was that checks required to be made of all airport employees with Disclosure Scotland. The claimant's disclosure certificate disclosed his conviction.[5]The presence on the claimant's disclosure certificate of his conviction had the effect that British Airports Authority ("BAA") would not issue the claimant with a security pass. Their decision was intimated on 15 April 2004 and the claimant was immediately suspended as he could not carry out the duties of his post without being able to work airside.[6]An internal disciplinary hearing was fixed for 19 April. Prior to the hearing, the claimant's representative discussed with the claimant the matter of alternative employment, both of them being aware that the respondents had certain duties in that respect. The question of alternative employment had also been discussed between the claimant and the Ramp Operations Manager, Allan Allison. The matter was not, however, pursued at the hearing on 19 April.[7]The claimant appealed and an appeal hearing was held on 6 May. At that hearing, the respondents' Jenny Wilkin, from Human Resources, in answer to a question from the claimant's representative as to whether there was anywhere else they could employ the claimant said that they were not in a position to produce a job for him. That was against a background of, on the evidence before the tribunal, her having made enquiries which included a search of their UK database. The non-availability of alternative employment was also spoken to in evidence by Peter Beresford, the respondents' Airside Operations Manager. It seems that the problem was that such posts as might be available all required security clearance that the claimant could not, standing his conviction, obtain. The claimant's principal objective at the appeal was, however, not to pursue the matter of alternative employment but to criticise the procedure adopted in this matter by BAA.[8]The claimant's dismissal was confirmed after appeal. The Tribunal's Decision and Reasons[9]The tribunal noted that it was conceded on behalf of the claimant that his dismissal was for a potentially valid reason and that the main argument advanced was that the respondents had failed to investigate properly the matter of alternative employment.[10]The tribunal were satisfied that the respondents did consider whether there was alternative employment open to the claimant (paragraph 59) and found that the dismissal was, taking account of the provisions of section 98(4) of the Employment Rights Act 1996, fair.[11]The tribunal were critical of the claimant's approach. Whilst Mr Bathgate had sought to argue that the search for alternative employment should have but did not extend to other airports, there was a lack of fair notice and a lack of questioning of the claimant as to whether, for instance, he would have been prepared to change the location of his employment. At paragraph 54, they state:
"This Tribunal takes the view that a respondent is entitled to fair notice of a claimant's case in regard to any criticism of a failure to look at alternative employment. In particular this Tribunal is of a view that such fair notice would have required that the claimant specify the particular job or jobs for which his training and experience equipped him; or the job or jobs for which the claimant could be retrained. Furthermore, the respondents would have been entitled to expect fair notice in regard to any case which the claimant was intending to advance in regard to vacancies or other jobs at other airports. In addition one would have expected an averment on the part of the claimant that the claimant would have been prepared to travel or relocate to any such other airport in regard to the taking up of a post at such other airport."
[12]At paragraph 59, they state:
"In essence, the question is one of whether there was adequate consultation. Consultation is a two way process. The claimant knew from a time before the disciplinary hearing right up until the conclusion of the appeal hearing that he would not have been dismissed had alternative employment with the respondents been available to him. He had the advice, and assistance, from beginning to end of an experience trade union representative. The claimant was asked in terms whether at the appeal the matter of alternative employment had been actively pursued. He insisted, as we have indicated, that his principal purpose at the appeal was to explore, as he perceived matters, the carte blanche application of a rule that any conviction of a designated kind would result in the withdrawal of his air side pass. We are satisfied that the respondents did indeed consider whether there was alternative employment open to the claimant. They indicated that they regarded the claimant as a good employee. We believed that evidence."
The Claimant's case on Appeal[13]Mr Bathgate submitted, under reference to the case of Scottish Daily Record and Sunday Mail Ltd v Laird [1996] IRLR 520 that once a potentially valid reason was established, the onus was no longer on the employer but was on both parties to satisfy the requirements of the test in British Home Stores v Burchell [1978] IRLR 379 .[14]He sought to submit that the tribunal were not entitled to find that the respondents considered whether there was alternative employment open to the claimant because the way in which they had written their decision showed that they considered that there was an onus on the claimant to aver and prove the availability and existence of a specific job and his suitability for it. He relied on what was said by the tribunal in paragraphs 54 and 59 for that submission.[15]Mr Bathgate also referred to Bevan Harris Ltd v Gair [1981] IRLR 520 , Draper v Kraft Foods Ltd [1973] IRLR 328 , and Henderson v Masson Scott Thrissell Engineering Ltd [1974] IRLR 1998 for a submission that in cases of incapability and redundancy, where an employee became unable to fulfil his previous employment, there was a positive duty on an employer to seek alternative employment for him although no duty to create a job. The Respondents' Case on Appeal[16]For the respondents, Ms Stark invited us to dismiss the appeal. The Tribunal had been entitled, on the evidence before them, to find that the dismissal was fair. They had before them much evidence about the respondents having looked for alternative employment for the claimant. They had done what they required to do. Discussion and Conclusions[17]This appeal is ill founded.[18]On the facts of this case, the claimant was correct to concede that the dismissal was potentially valid or, to put it more accurately, potentially within the range of reasonable responses open to the respondents. Certainly, the circumstances were such that it would be reasonable to expect an employer in the respondents' position to consider whether there was alternative employment that could be offered to the employee. These respondents did, however, do so. The tribunal were plainly entitled, on the evidence before them, to make the finding to that effect that they did.[19]We do not see that the tribunal erred regarding the matter of onus. We do not, in particular, read their comments as being indicative of their either having required the claimant to aver and prove the availability of specific alternative employment with the respondents or of their having decided the case as they did because of any failure on his part to do so. We read their comments as correctly stressing the need for a claimant in a case such as this to raise as an issue any criticism that he seeks to make of his employer regarding the matter of the availability of alternative employment and to do so fairly. The reference in this claimant's application to the Employment Tribunal to the respondents having "failed to look realistically at the claimant being redeployed within their organisation" is opaque and does not, we agree, give the sort of fair notice that could reasonably be expected, particularly in an application that was drafted by a solicitor. In the event, it did not impact on the tribunal's decision because the respondents led evidence not just from one but from three witnesses on the matter and the claimant's evidence was confined to his affirmative answer to a leading question as to whether he would have taken any job that was offered to him. There was, accordingly, no contradiction of the respondents' position in their evidence and it is not surprising that the tribunal accepted that matters were as they said they were, namely that they could not provide a job for the claimant. Disposal[20]In these circumstances, we will pronounce an order dismissing the appeal.