MR A B MARSLAND v LANCASHIRE COUNTY COUNCIL [2008] UKEAT 0242_08_2808

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0242_08_2808Case No Appeal No. UKEAT/0242/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A B MARSLANDAPPELLANTLANCASHIRE COUNTY COUNCILRESPONDENT
Before
His Honour Judge Ansell Ms G MillsDate 28 August 2008
[1]APPEARANCES For the Appellant MR JOHN HORAN (Representative) Rochdale Law Centre 15 Drake Street Rochdale Lancashire OL16 1RE For the Respondent MISS JOANNE CONNOLLY (of Counsel) Instructed by: Lancashire County Council Legal Services Group LSG3 PO Box 78 County Hall Preston PR1 8XJ SUMMARY UNFAIR DISMISSAL: Reasonableness of dismissal No error in Tribunal's conclusions as to fairness of dismissal for refusing to comply with a redeployment clause. HIS HONOUR JUDGE ANSELL This is the hearing of an appeal from a decision of a Manchester Employment Tribunal, chaired by Employment Judge Mr Vinecombe. They sat in October 2007 and gave their decision on 6 November 2007, dismissing the claim for unfair dismissal and ordering an amount of £305.10 in respect of unlawful deduction of wages.[2]At the hearing below, Miss Connolly, who appears today, appeared on behalf of the Respondent. Mr Marsland appeared in person below. He has before us had the benefit of Mr Horan's representation, for which as always we are very grateful.[3]The appeal to this Court was initially refused on the sift by HHJ Birtles, but under a Rule 3(10) hearing held on 4 June this year HHJ Serota QC allowed the case to go through to a full hearing on the basis of an amended notice of appeal, drafted by Mr Horan, which forms the basis of today's appeal. Those grounds have been amplified in a skeleton argument which was only received by us quite late in the day, together with a second bundle which comprised in the main typed up notes of evidence of 39 pages. They are not a complete note but certainly provide a helpful background into the case.[4]The amended grounds of appeal really are based on three distinct areas in the evidence where Mr Horan alleges that the Tribunal have failed to make findings of fact on key areas and as a result of that failure he argues that their conclusions as to the fairness of the dismissal can be challenged. He relies on the authority of English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 , the well-known passage from Lord Phillips where in particular he said that:
"…the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained."

Lord Phillips went on to say this:

"It does require the Judge to identify and record those matters which were critical to his decision."
[5]Mr Horan argues that there were critical areas in the history of this case which the Tribunal have failed to deal with.[6]The background facts can be taken from the Tribunal's decision. Mr Marsland had worked from 1 April 1998 as an area support services officer. His duties consisted of monitoring ground maintenance contract arrangements for schools and other establishments and prior to reorganisation he was responsible for some 176 schools and other establishments.[7]In 2003/2004 the Respondent determined that ground maintenance and cleaning services, which had hitherto been separate functions, should be combined. Thereafter consultations took place, both individually and collectively with those affected and with the trade union. On 8 December 2004 the union accepted the proposals which would mean that existing support officers, including the Claimant, would be redeployed into new area support officer posts, obviously having control over both ground maintenance and cleaning services.[8]The key clause in the Appellant's terms and conditions was clause 7 of the redeployment agreement. The Council had an agreement with the unions that if employees were to be redeployed the redeployment panel would decide whether the proposed redeployment was suitably measured against certain specified criteria. Although the agreement itself appeared to affect only redundancy, it was agreed between the parties from the evidence that it covered also situations such as a reorganisation as occurred in this case.[9]The clause read as follows:
"An employee may refuse one offer of redeployment or withdraw from one redeployment at any time up to six months from the date of commencement of the redeployment. Subsequent redeployment will be compulsory. In instances where an employee refuses an offer which the Panel considers to be suitable, or where an employee withdraws from a suitable offer, the employee will, nevertheless, be required to undertake the duties of the offered post, until such time as a suitable offer is available."
[10]In January 2005 the Appellant and others were advised that a redeployment process was going to take place. They were asked to return a form stating their preferences. The Appellant did not return that form.[11]On 3 February the panel agreed that the Appellant and others should be redeployed into the new area support officers' posts, which were considered suitable redeployment. The Claimant again could have attended that panel but did not, alleging that he was unaware of the appointment.[12]It is right to say that throughout this consultation process the Appellant expressed in writing his objections to being redeployed, although recognising the Respondent's right to restructure. He considered that his changed job description was not suitable alternative employment and in fact he disagreed with the whole proposal to merge the duties of ground maintenance and cleaning.[13]He was written to on 10 January reminding him that pursuant to the agreement he was entitled to refuse the first offer; however he was required to undertake the duties of the new post until such time as a second suitable alternative offer of employment could be made. Thereafter meetings took place and the Tribunal found that Mr Marsland would not undertake the reorganised role until it was established that the variation to his terms and conditions were legal. He was advised that his refusal to undertake the new role was potentially gross misconduct and unless he agreed in writing to undertake the new role disciplinary action would follow and he risked being suspended.[14]In fact, the process did not take place until the end of 2005 because he was off work for six months between June and December. Thereafter, he was taken to a disciplinary panel. That panel was split into two hearings because the panel were, according to the Tribunal, concerned that he understood his options with regard to redeployment. The redeployment panel confirmed that the new position was suitable and confirmed that the provisions of clause 7 would apply. We will refer to that decision below.[15]The disciplinary panel reconvened and decided that he should be dismissed for gross misconduct for refusing to undertake duties in accordance with clause 7. An appeal against that decision was unsuccessful.[16]The Tribunal in their decision set out the law, namely Section 98 Employment Rights Act 1996 and British Homes Stores v Burchell [1979] IRLR 379. They accepted that there was a business need for the reorganisation and that there was adequate consultation and they set out clause 7 and accepted the Council's version of it. The Appellant, at the hearing before the Tribunal, had contended that clause 7 gave him the option of refusing the first offer and in fact, as it were, sitting it out until a suitable alternative position came along. The Tribunal, however, were satisfied that the Council's view was correct; that having refused the first offer it did require the Appellant to undertake the duties of the offered post until such time as an alternative suitable offer was available.[17]The Tribunal was satisfied that a thorough investigation had taken place and that the dismissal hearing was conducted properly and came to the view that the dismissal was therefore not unfair.[18]Mr Horan in the Notice of Appeal challenges three areas in the history of these events where he contends that the Tribunal failed to deal with key matters. First of all, in the grounds of appeal paragraph 1.1 he sets out that the basis on which Mr Marsland was taken to the disciplinary panel was a refusal to take on the new role on a "permanent" basis.[19]The Tribunal in dealing with the lead up to the disciplinary panel do not mention the word "permanent" as figuring in the complaint giving rise to that panel hearing. Paragraph 13 of the Tribunal's decision speaks of the Claimant being advised thus:
"… his refusal to undertake the new role was potentially gross misconduct and unless he agreed in writing to undertake the new role disciplinary action would follow and he risked being suspended."
[20]The Tribunal in paragraph 15 refer to a meeting between Mr Spencer and the Appellant on 12 December 2005 when the Claimant was suspended because he was not prepared to undertake the new role for reasons he had previously stated. Mr Horan has in fact taken us through the relevant correspondence. The key letter which is not referred to by the Tribunal is a letter of 29 December 2005 from Mike Hart to the Appellant. It contained these two paragraphs:
"You have not given this assurance on the basis of permanently undertaking the role and duties of the post, and confirmed your refusal to undertake this role at your return to work interview, as indicated above."
[21]Later in the same letter:
"An investigation into your refusal to give the required written assurance to permanently undertake the role and duties in the post of Area Support Officer will commence under the terms of the County Council's Disciplinary Procedure and you will be sent further information about this as soon as possible."
[22]The disciplinary hearing in fact did not commence until the following year, 8 December 2006. It is referred to as 8 December 2005 in the Tribunal's decision but that is an error. So, there is no reference in the Tribunal's decision to the apparent cause of complaint made against the Appellant that it was a refusal to give an assurance to permanently undertake the role. However, by the time one gets to the disciplinary hearing itself the Tribunal record at paragraph 17 that the Appellant was referred to the redeployment panel and that met on 11 January 2007, erroneously described as 2006 in the Tribunal's decision. Paragraph 17 carries on as follows: "Having considered the claimant's explanation the disciplinary panel was not satisfied that the claimant fully understood his options with regard to redeployment and accordingly he was again referred to the Redeployment Panel and that met on 11 January 2006. The claimant attended before the Redeployment Panel and following the hearing the panel confirmed that the merged post was a suitable post for him and reiterated the fact that pursuant to clause 7 of the Redeployment Agreement if the claimant refused the position he had to carry out the new duties of that position until such time as a suitable vacancy became available. The disciplinary panel reconvened on 30 January 2007 and the claimant at that hearing was dismissed for gross misconduct because he still refused to undertake the duties in accordance with clause 7 of the Redeployment Agreement.[23]It is clear to us therefore that, even if there was a misunderstanding in terms of the earlier letter that had been written a year previously in December 2005, nevertheless as a result of the reconvening of the redeployment panel, which the Tribunal found was attended by Mr Marsland, and as a result of the reconvened disciplinary panel, the Tribunal make it quite clear that he was being disciplined not because of a failure to permanently take on the new role but a failure to work at the new job under clause 7 until such time as a suitable appointment came along.[24]Whilst in a world of perfection it might have been preferable for the Tribunal to have mentioned that earlier letter and to contrast it with the disciplinary hearing and the reconvened redeployment panel, we do not find that defect to invalidate the Tribunal's key findings which must go to the reasons for dismissal which are set out very clearly in paragraphs 17 and 18. Miss Connolly, who appeared below, has assured us that certainly in the manner in which the Appellant gave evidence in relation to those events he was clear that he was being disciplined for a failure to comply with clause 7. It is clear that the Appellant's fear was that if he had begun to work at the new job that it would have sealed his fate for the future and that no suitable offer would ever have appeared in the future that might have provided an alternative job for him. That indeed is the clear flavour of the evidence that we have seen from the notes of evidence.[25]Three matters clearly emerged from those notes which are incontrovertible. Firstly, that the Appellant did not want to move from his original job. Secondly, that he thought that clause 7 would allow him to have the option of sitting it out until at least one suitable offer came along; and thirdly, his concern that once he got going on the new job the Respondents would make no effort to offer him an alternative for consideration, pursuant to clause 7.[26]So, dealing with that first issue, namely the nature of the letters that were sent before the disciplinary hearing, we are satisfied that in so far as there was a failure by the Tribunal to mention that one particular letter from Mr Hart we do not form the view that the Tribunal's decision was thereby invalidated in any way.[27]As regards that disciplinary hearing in December 2006/January 2007, the amended Notice of Appeal contends that the panel's decision was that, and I quote from paragraph 1.3 of the Notice of Appeal:
"I was to be dismissed for gross misconduct because I had refused to undertake the job on a temporary basis; for the avoidance of doubt this was the first time this allegation was ever raised with me."
[28]Before us, Mr Horan conceded that the issue of temporary employment was raised for the first time at the appeal stage and again we have checked through the notes of evidence that have been provided to us and the documents and we are quite satisfied that the disciplinary decision was based on the failure to comply with clause 7, that the Appellant understood that that was the reason for dismissal, and that followed, as we have indicated already, the reconvening of the redeployment panel.[29]It is right we should read out the panel's conclusion in its entirety, although it was only referred to in summary form by the Tribunal. The resolution of the panel said as follows:
"Having considered the evidence before them in the verbal submissions made by Mr Spencer (Directorate for Children & Young People) and Mr Marsland, the Panel wish to confirm that the post of Area Support Officer, Scale 5/6/SO1 is a suitable offer of redeployment. The Panel note that in previous correspondence between the employing Directorate and Mr Marsland it can be implied that Mr Marsland wished to reject the offer of redeployment and as a result, this would now be recorded by the Panel as a formal rejection of the post. However, since the Panel view the offer to be suitable, Mr Marsland will, nevertheless, be required to undertake the duties of the post of Area Support Officer until such time as an alternative suitable offer is available (in accordance with paragraph 7 of the County Council's Redeployment Agreement). The Panel were also informed of the impending Disciplinary Panel hearing which is to be reconvened to consider Mr Marsland's earlier refusal to undertake the duties of the post in question. The Redeployment Panel is content, in the circumstances, that this now takes its course."
[30]The third area in the Notice of Appeal concerns the appeals committee hearing. Paragraph 1.4 of the Notice of Appeal says this:
"Within a matter of days, I wrote to the Respondent indicating that I was prepared to work at the job on a temporary basis and this has been my position throughout."
[31]Paragraph 1.5:
"The Appeals Committee said that I had refused to undertake duties on a temporary basis but this was wrong."
[32]We have not in fact been directed to any letter written by the Appellant suggesting that he was willing to work on a temporary basis. The only reference that we have been taken to is page 29 of the notes of evidence. Mr Marsland was questioned by Miss Connolly and there was the following question and answer exchange:
"Q. So, was your belief that this would be the case until the end of your working life? A. Until the appeal when I said I would do it for a limited period. Q. You changed your position, but you only did that after dismissal. Too late. Job had gone. A. Because the demand was permanent."
[33]The appeal hearing was dealt with in paragraph 20 of the Tribunal's decision. They said this:
"… the panel hearing his appeal was chaired by Mrs Hanson who had copies of all the relevant documents. The appeal meeting lasted all day and the appeal panel heard from the Claimant and all relevant witnesses. The Claimant's appeal was dismissed because he refused to undertake the merged role until another suitable role was found for him."
[34]It is right to say that that paragraph does not contain any reference to any offer that Mr Marsland may have made concerning being willing to work on a temporary basis and indeed the letter confirming the appeal panel's decision sent on 4 April 2007 does not appear to make any reference to that offer.[35]We regard the offer, even if it was made to work on a temporary basis as being irrelevant to the issues that were in front of the appeals committee. They were enquiring into whether a dismissal based on a failure to comply with clause 7 was in all the circumstances a proper decision and the use of the phrase "permanent" or "temporary" in our view was irrelevant to the issues that were in front of them and we do not find that the failure of the Tribunal to make reference to that brief passage of evidence from the Appellant is in any way a material fact such as would have to mentioned in a decision, or indeed going to the Tribunal's overall view as to fairness or unfairness.[36]Accordingly, as will be apparent, we have analysed the three areas that Mr Horan has referred us to; we hope with the detail covering the issues that he raised. Other than the defect in failing to mention Mr Hart's letter, and we have dealt with that and the effect of it, we find no defects in the Tribunal's analysis of the key facts in the case. The analysis of their decision as to fairness is clear and correct and in the circumstances this appeal is dismissed.