MISS N CHOUGLAY v EJEF LTD [2006] UKEAT 0539_05_1705

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2006] UKEAT 0539_05_1705

Case No Appeal No. UKEAT/0539/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS N CHOUGLAYAPPELLANT

EJEF LTDRESPONDENT

Before

Mr Justice Elias

Date 17 May 2006

[1]APPEARANCES For the Appellant MR JAMES WILLAN (of Counsel) Instructed by: Free Representation Unit 6th Floor 289-293 High Holborn London WC1 7HZ For the Respondent Mr JOHN CROSFILL (of Counsel) Instructed by: Messrs Sanders & Co 18-20 Broadway Rainham Essex RM13 9YW SUMMARY Unfair Dismissal – Reason for dismissal including substantial other reasons; Reasonableness of dismissal Dismissed by reason of redundancy. Was the real reason redundancy or was it because the employee had made a protected disclosure? Analysis of Employment Tribunal's reasoning. Appeal dismissed. MR JUSTICE ELIAS This is an appeal against a decision of the Employment Tribunal sitting at Reading in which it held that the Claimant, the Appellant before us, had neither been unfairly dismissed nor dismissed for making a protected disclosure.

[2]The hearing before the Tribunal was in fact the second hearing of this matter. The Claimant had failed in seeking to establish unfair dismissal at an earlier hearing but it transpired that the Tribunal had not considered her claim that the real reason for dismissal may have been because she had made a protected disclosure. Accordingly, the Employment Appeal Tribunal (EAT) sent the matter back for a re-hearing which was the hearing that we now have to consider. The only observation that we make about that is that it is plain that the question of whether or not the real reason was a protected disclosure would have been very much at the forefront of the Tribunal's mind.

[3]The background was briefly dealt with in the decision of the Tribunal. The Appellant was an administrator and employed by the Respondent under the line management of a Ms Iwanaga. She worked in a team of three administrators. The decision was taken by the Company to make on of these three administrators redundant. The Tribunal found in terms that the decision to dismiss was taken by Professor Barry. He had an involvement in the Respondent organisation although he was not working there day to day. He relied on evidence from Ms Iwanaga about the capabilities and overall worth of the Appellant. The Tribunal found in terms again that that was not unreasonable, because Ms Iwanaga and the Claimant had worked together for approximately 17 years.

[4]The selection criteria which were chosen were described by the Tribunal to be manifestly sensible and indeed logically justified. They were linguistic skills which were, in effect, the ability to speak Japanese, and advanced computer skills. The application of these criteria inevitably led to the inescapable conclusion, as the Tribunal put it, that out of the pool of three it was the Appellant who had to be made redundant. The Tribunal then considered whether there were any alternative vacancies which should have been offered and they concluded that there were not.

[5]At paragraph 4 of the decision the Tribunal says this:

"4. Overall therefore, we can find no fault or difficulty with the procedure and approach adopted by the Respondent such as to make us doubt that this was a genuine redundancy procedure, or that consultation did not take place, or that the Claimant was unfairly selected, or that suitable alternative employment was not offered. Accordingly and for those reasons we unanimously reject the suggestion of a dismissal, based upon and motivated by the 2002 disciplinary events and find the dismissal to be fair. Since it is accepted that the allegation of dismissal for making a protected disclosure turns on the same facts, and stands or falls with the Claimant's more general claim of unfair dismissal, that too is dismissed."

[6]It is right to say that the Tribunal never in its decision spelt out the nature of the alleged protected disclosure, but it was not necessary in our view for it to do so because it was accepted that there was a protected disclosure arising out of certain events in 2002. Very briefly, the background to that was that the Appellant had been given a final written warning about her conduct. She protested and sought legal advice. Her solicitor invited the Respondent to withdraw the warning but they declined to do that. They offered her the opportunity to appeal the warning internally but that was not accepted. An external arbitrator was then appointed to hear the appeal but, for reasons we will not go into, the Respondent was not content with the way in which that arbitrator intended to consider the matter. The arbitrator was dismissed and the Appellant refused an offer of an internal appeal and there the matter lay. As we have said, the Tribunal accepted that there was a protected disclosure.

[7]The key issues before the Tribunal which were set out by them were essentially, first, whether a redundancy situation existed, because it had been suggested that the redundancy was a sham. Second, what the Tribunal in fact referred to as the fundamental substantive allegation being made by the Claimant before it, namely that even if there was a redundancy situation, whether in essence she had been dismissed in order to get rid of her for illegitimate reasons - namely the protected disclosure - or whether redundancy was the real reason. And finally, the Tribunal had to consider the fairness of the dismissal by reason of redundancy, which they did by analysing questions of consultation, selection criteria and alternative employment in the way we have summarised.

[8]The Appellant has been represented before us by Mr Willan, of the Free Representation Unit, and we would pay tribute to the clear, cogent and very full arguments he advanced on her behalf. There were initially a number of grounds of appeal which were put forward, but in the event before us only one really remained. It was this. Mr Willan submits that the Tribunal never did properly ask itself whether the real reason for dismissal – what actually motivated Mr Barry in dismissing this Appellant – was the redundancy or whether it was a desire to get rid of her because of the protected disclosure.

[9]He accepts that the Tribunal looked objectively at all the evidence which would sustain its conclusion that any dismissal by reason of redundancy was fair. He referred this Tribunal to the decision by this Tribunal to ASLEF v Brady UKEAT–057-06-DA in which, in fact, I gave the Judgment. The issue there was whether the Union's General Secretary had been fairly dismissed. The Union submitted that he had been dismissed for misconduct. He suggested that they had improper reasons for wanting to dismiss him which were connected with their hostility to the fact that he had won the election to be General Secretary. The Employment Tribunal found that he had been unfairly dismissed and the real reason was not the reason ostensibly relied upon by the Trade Union in that case, and this Tribunal held that that was a conclusion which the Employment Tribunal was entitled to reach on the evidence before it.

[10]In the course of giving Judgment in that case I said this, at paragraph 80, which is relied upon by Mr Willan:

"80. As we have said, once the employee has put in issue with proper evidence a basis for contending that the employer has dismissed out of pique or antagonism, it is for the employer to rebut this by showing that the principal reason is a statutory reason. If the Tribunal is left in doubt, he will not have done so. Evidence that others would not have been dismissed in similar circumstances would be powerful evidence against the employer, but it is open to the Tribunal to find the dismissal unfair even in the absence of such strong evidence. In a case of mixed motives such as malice and misconduct, the principal reason may be malice even although the misconduct would have justified the dismissal had it been the principal reason."

So in this case, says Mr Willan, the principal reason may still be the protected disclosure even although the redundancy would indeed have justified the dismissal had it been the principal reason. He says that the Tribunal here did not ever properly address that fundamental question: what was the principal reason?

[11]Mr Crosfill for the Respondent submits that if one looks at the decision of this Tribunal fairly, it is plain that they did reach the conclusion not only that the redundancy situation was not a sham – in other words there was a genuine redundancy – but also that Mr Barry had genuinely dismissed for that reason and not for any other reason.

[12]He focuses on a number of issues to sustain that argument. First, as we have said, this was a re-hearing when the Tribunal would have known without doubt that the question of whether or not the real reason was that there had been a protected disclosure was very central to the issues that they had to determine. Second, they say that in terms in any event at paragraph 2.3 where, as we have said, they refer to this as being the fundamental substantive allegation advanced by the Claimant before them. Third, he says that the Tribunal have, if one reads the decision fairly, made their findings clear in paragraph 4 which we have set out. They there say in terms that they unanimously reject the suggestion that the dismissal was based on, and motivated by, the 2002 disciplinary events. They also refer to this being a genuine redundancy procedure which, he submits, is the language one would use to describe an employer who has properly and genuinely dismissed for that reason.

[13]Mr Willan accepts that had the Tribunal not used the words "and for those reasons" in paragraph 4 he would have had no real prospect of succeeding in this appeal. But he submits that the words "and for those reasons" indicate that the basis on which the Tribunal concluded that the dismissal was not by reason of the earlier protected disclosure were the objective features which they had identified in the decision, namely the fact that there had been proper consultation and no chance to offer alternative employment and so forth. He says that that the finding was not the result of the Tribunal asking itself what subjectively influenced the mind of Mr Barry.

[14]We do not accept Mr Willan's argument on this. It seems to us that reading this decision fairly - and bearing in mind the question whether one of the reasons was protected disclosure or not lies at the heart of this case - it would have been plain to the parties that the Tribunal was concluding that there had been a genuine dismissal by reason of redundancy. We say that largely for the reasons relied on by Mr Crosfill, but we would also point out that in paragraph 4 the Tribunal say in terms that they could find no fault or difficulty with the "procedure and approach" adopted by the Respondent. We think there is significance in the words "and approach". That suggests to us that the way in which Mr Barry dealt with the dismissal was one which did not attract any criticism from the Tribunal. We have no real doubt here that they were concluding that this had been a dismissal for the reasons ostensibly relied upon by the employer.

[15]There are two other factors which we think contribute to that conclusion. First was their finding on a matter which was apparently disputed before them: that the ultimate decision to dismiss was taken by Professor Barry and not Miss Iwanaga. The significance of that - and we do not pretend this is central to its conclusion - was that Professor Barry had relatively little involvement in the earlier protected disclosure in any event. We accept that that would not of itself preclude his having dismissed for that reason, but in our view it is a further pointer in favour of the conclusion we reach. Second, when dealing with the selection criteria, the Tribunal concluded, as we have observed, that the chosen criteria were "manifestly sensible". That was in a context, as we understand it, where the Appellant was arguing before the Employment Tribunal that these criteria had been chosen deliberately in order to enable the employer to dismiss this employee for illegitimate reasons. The Tribunal is plainly rejecting that submission. Again, it does not conclusively demonstrate that the argument advanced by Mr Willan is incorrect but it is, in our view, strong evidence to support the conclusion we have reached that the Tribunal was satisfied that this whole exercise had been genuinely carried out.

[16]We finally add this. We have certain observations from the Chairman about this decision. The reason for that is that there was a ground of appeal alleging misconduct which was not, in the event, pursued. Even had we felt that there was force in the submission made by Mr Willan it seems to us that the appropriate remedy would simply have been to remit the matter to the Tribunal to see whether they did address this issue and if so what their conclusions were. It seems to us that the Chairman's observations demonstrate what the answer would have been had we taken that step. But we say that very much by the way. We have reached a very clear conclusion reading this Judgment that the Tribunal did not make the error attributed to it by Mr Willan. They did conclude that the genuine reason being advanced was redundancy and not the protected disclosure. They said in terms that there was no fault or difficulty with the procedure or the approach. Notwithstanding the careful submissions crafted by Mr Willan, we rejected this appeal.