MS J THOMSON v LONDON BOROUGH OF HARINGEY [2010] UKEAT 0318_09_2605

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0318_09_2605Case No Appeal No. UKEAT/0318/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS J THOMSONAPPELLANTLONDON BOROUGH OF HARINGEYRESPONDENT
Before
Mrs Justice Cox Mr B Beynon Miss S M WilsonDate 26 May 2010
[1]APPEARANCES For the Appellant MR ANDREW SMITH (of Counsel) Instructed by: Messrs Partners Employment Lawyers 65 London Wall London EC2M 5TU For the Respondent MR CYRIL ADJEI (of Counsel) Instructed by: London Borough of Haringey Corporate Legal Services Alexandra House 10 Station Road Wood Green London N22 7TP SUMMARY UNFAIR DISMISSAL JURISDICTIONAL POINTS – 2002 Act and pre-action requirements This appeal raised the question of the employers' compliance with step 1 of the statutory dismissal procedure in a case of dismissal for redundancy; and whether the Employment Tribunal's decision that there had been compliance was arrived at in error. ET's decision upheld on the facts. Appeal dismissed . THE HONOURABLE MRS JUSTICE COX This is yet another appeal raising compliance with the statutory dismissal and disciplinary procedure which, though much criticised and now repealed, was in force at the material time. The issue in this case is whether the Appellant (the Claimant) was automatically unfairly dismissed by the Respondent because of a failure to comply with Step 1 of the statutory procedure.[2]At an earlier, preliminary hearing, the EAT considered a number of grounds of appeal raised by the Claimant and granted permission for this one ground to proceed to a full hearing. All the other grounds were dismissed. It is, as Mr Smith appearing for the Claimant observes, a narrow and technical point of no general significance, but it is nevertheless a point of considerable significance to the parties. The Facts[3]The relevant facts are these. The Claimant, Ms Thomson, had brought claims against the Respondent, her former employers, alleging direct race discrimination and victimisation, disability discrimination and unfair dismissal, including a claim that she had been automatically unfairly dismissed. After a lengthy hearing the Employment Tribunal dismissed all her claims.[4]For the purposes of the single issue arising in this appeal we shall summarise the main facts. The Claimant commenced employment with the Respondent on 18 March 1999. She worked in a number of temporary positions until, in July 2002, she was appointed to a permanent position within the Respondent's asylum service.[5]Between 2004 and 2006 there was considerable uncertainty about the future of that service. During that time there were a number of redeployments, which led the Claimant to raise grievances. One of them took a long time to resolve. The way in which that grievance was dealt with formed part of her claim for racial discrimination. Eventually, her grievance was upheld and a series of apologies were given to the Claimant by the Respondent on behalf of both the authority and various named individuals.[6]In February 2004, following a review of the asylum service, the Respondent decided to delete a number of posts. By this time, although her post still existed, the Claimant was not working in the service. In fact, she had not been working in the service for several months and was working in a different department.[7]The Respondent consulted the relevant trade unions on the plan to delete a number of posts. A report dated 9 February 2004 was then produced. The report proposed a much smaller core team, to deal with asylum matters, and a number of the posts in the service were deleted. One of them was the substantive post which the Claimant had been occupying. Due to an oversight, since she was not actually working in that post at the time, the Claimant was not consulted about the deletion of her post before the report was completed. However, the error was soon discovered and on 10 February 2004 the Claimant was told about it. She responded quickly and unequivocally because those whose posts were being deleted were going to be offered redeployment and placed into a redeployment pool.[8]The Claimant wrote on 12 February 2004 as follows:
"I welcome, and accept, the director's offer of redeployment now in lieu of returning to the asylum service."
[9]The Claimant then described how she had been out of the service for some nine months and said this:
"I have no experience of the redeployment process and would appreciate as much professional guidance as possible."
[10]Thereafter, the Claimant was asked to carry out work in a series of temporary posts. At the same time she was applying for redeployment to certain permanent positions. In August 2005, upon the Claimant commencing yet another temporary post, the Respondent wrote a letter to her dated 25 August 2005 which said, so far as is relevant, as follows:
"During your employment in this temporary post I will continue to look for suitable redeployment opportunities for you. I do hope that this will be successful, however, I have to advise you that, if we are not able to appoint you to a suitable post in this time, your employment will cease due to redundancy on 1 April 2006."
Mr Adjei, appearing on behalf of the Respondent, submits that this letter contained a clear warning that, if she was unable to secure a permanent position, the Claimant would be made redundant.[11]After this temporary position came to an end, the Claimant was no further forward and the Respondent's Human Resources Officer had a meeting with the Claimant on 10 April 2006. By this time the Claimant had gone off on sick leave from which, it appears, she did not return before her dismissal.[12]At this meeting the Claimant was accompanied by her trade union representative. The points discussed in the meeting were then summarised in an email sent to the Claimant on 12 April 2006. The first paragraph of that email gave a further warning that the Claimant was at risk of redundancy, stating as follows:
"1. Your employment position As you have no substantive post (this was deleted in 2002 – [ it is agreed by all parties it should be 2004] ) I confirmed that the Council will seek to redeploy you for a period of 3 months from 10 April 2006 (the date of our meeting). If we have been unable to redeploy you within this period we will hold a further review meeting and at the end of the 3-month period you will be issued with notice on grounds of redundancy. During the notice period every effort will continue to be made to redeploy you."
The letter then went on to deal with a number of other matters, to which we do not need to refer.[13]Towards the end of that 3-month period, the same Human Resources Officer sent an email to the Claimant and her trade union representative dated 7 July 2006. It was headed "Redeployment Review Meeting/First Formal Sickness Meeting". That email was in the following terms:
"I need to set up a review meeting now that the 3-month period to seek redeployment is nearly at an end, as well as a first formal meeting under the Sickness Procedure. I thought it might be easier for you if I arranged one time for the meeting but held it in two parts. I would like to hold the meeting next Friday, 14 July - I am flexible about the timing. I have tried to speak to Sean so will obviously wait to confirm arrangements pending both your availability. I am also aware of your concerns about your health and if you would rather the meeting was held in your absence but with Sean representing you I am happy to proceed on that basis. Do contact me if you would like to clarify anything further."
[14]The meeting, which was found by the Tribunal to be a Step 2 meeting, took place on 19 July 2006. There was some confusion in argument before us as to the form this meeting took. On instructions Mr Smith submitted that this meeting was in fact a telephone meeting and that the Claimant did not attend personally at the Respondent's premises because she was still on sick leave. He also raised a question as to whether the trade union representative was present.[15]This came as a surprise to the Respondent, and there is certainly no reference in the Tribunal's decision to it being a telephone meeting. We were taken to the minutes of that meeting in our bundle of documents. These show that the meeting was in two parts and that it took place at Alexander House, Meeting Room 2. The Claimant, her union representative, Sean Fox, and Sarah Jewell, the Human Resources Officer are noted as being present and there is nothing to suggest that the Claimant was only present via a telephone link-up or anything of that sort.[16]Further, in the letter to the Claimant that followed, dated 19 July 2006, Ms Jewell referred expressly to the meeting:
"….held with me on Wednesday 19 July 2006 in Alexandra House and at which you were represented by Sean Fox."
[17]We note that the Tribunal found expressly that the meeting of 19 July 2006 satisfied the statutory requirements for a Step 2 meeting. Mr Adjei also points out that counsel then representing the Claimant did not contend before the Tribunal that, as a telephone meeting, there was no compliance with the statutory requirements for a Step 2 meeting.[18]We note that the minutes of the meeting did refer to an earlier attendance review, which was conducted on the telephone, and we consider that the Claimant may simply have confused that with the meeting of 19 July 2006. Certainly Mr Smith did not pursue this suggestion in is reply to the submissions of Mr Adjei. We therefore conclude that this was a face to face meeting which complied with the requirements of Step 2.[19]As a result of that meeting, the Claimant was given a letter of dismissal which read as follows:
"I am writing to confirm that your substantive post within the Asylum Team is no longer available and since your last work placement ended we have been unable to redeploy you to an alternative post. This means that your employment with this Council is terminated on grounds of redundancy."
[20]Reference was made to the notice expiring at the end of August 2006 and the Claimant was told that, in the meantime, attempts would continue to be made to try to find suitable alternative work for her.[21]It was against this factual background that the Tribunal had to consider the question of 'ordinary' unfair dismissal.[22]The Tribunal found at paragraph 9.21 that the reason for the Claimant's dismissal was redundancy, stating as follows:
"This followed the Claimant's decision to go on the redeployment list in February 2004. She was clear from this time that a failure to find a permanent redeployment position would result in her redundancy. The Claimant's post in Asylum following a restructure in 2004 had been deleted and, in any event, the Claimant's stated position was that she did not want to return to Asylum at that stage in an alternative post, which was still her position in April 2006 when she declined an offer to return to Asylum."
Against that background, the conclusion of the Tribunal was that the dismissal was not unfair.[23]In relation to automatic unfair dismissal, it appears that the Tribunal were not asked by either party to determine whether there had been compliance with Step 1 of the statutory procedure. The Claimant's ET1 contained no reference to automatic unfair dismissal. There had then been a case management discussion when a list of issues was agreed, as set out at paragraph 2 of the Tribunal's Judgment. The only issue in relation to automatic unfair dismissal was said to be whether the dismissal was automatically unfair "in respect of failure to convene a Step 2 meeting as required under the Employment Act 2002".[24]Clearly the Tribunal had to look at Step 1 before determining that question, but it is of some relevance, in our view, that the Claimant, who was legally represented below, did not complain before the Tribunal that there had been a failure to comply with Step 1. It is therefore unsurprising that the Tribunal found, at paragraph 6.118, that they were satisfied that the 7 July 2006 email was a Step 1 letter, and that they then held at paragraph 9.26 as follows:
"The Claimant as we know went off sick on 4 April 2006. On 7 July 2006 Ms Jewell emails the Claimant at home which the Tribunal accepts satisfies the Step 1 procedure of the Employment Act 2002. Ms Jewell then met the Claimant with her union representative on 19 July 2006 to discuss the email on 12 April 2006 confirming now the period of deployment was up she would be issuing a notice of redundancy."
The Appeal[25]It is common ground between the parties before us that the email sent to the Claimant on 7 July 2006 was not, in and by itself, sufficient to comply with the requirements of Step 1. However, the Respondent contends that the Tribunal was right to conclude on the facts of this case that that email did comply with the requirements in Step 1; and he seeks to uphold their decision on a different basis. Mr Adjei submits that the email of 7 July 2006, when read in conjunction with, and in the context of, previous communications and warnings of redundancy, was sufficient to discharge the Respondent's obligations under Step 1 of the statutory procedure.[26]It is the Claimant's case that the Respondent failed to comply with its obligations under Step 1 of the procedure and that the Tribunal erred in law in concluding that the Claimant had not been automatically unfairly dismissed. The essential question is whether the 7 July 2006 email can be saved by previous communications, or other knowledge that the Claimant already had the benefit of when she received that email. The Law[27]Step 1 of the dismissal and disciplinary procedure is set out in Schedule 2 of the Employment Act 2002 . It reads as follows:
"1(1) The employer must set out in writing the employee's alleged conduct or characteristics or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee; (2) The employer must send a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter."
[28]The EAT has considered the statutory procedure in a number of cases from which the following principles, which are common ground between the parties, can be derived.[29](1) The purpose of the procedure is to seek to prevent the matter going to an Employment Tribunal, if possible, by providing the opportunity for differences to be resolved internally at an earlier stage. In order to achieve that purpose the information provided must be at least sufficient to enable the employee to give a considered and informed response to the proposed decision to dismiss (see Alexander & Hatherley v Bridgen Enterprises Ltd [2006] IRLR 422 at paragraph 34).[30](2) It is necessary to look beneath any labels that may have been used by the parties and to focus on whether the substantive requirements of the statute, which are in simple and non-technical terms, were or were not in fact met (see YMCA Training v Stewart [2007] IRLR 185 at paragraph 9).[31](3) Step 1 requires the employer to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting. At this stage the employee simply needs to be told that he is at risk of dismissal and why. Paragraph 38 of the judgment in Alexander reads as follows:
"At Step 1 the employee simply needs to be told that he is at risk of dismissal and why. In other cases it may require no more than specifying, for example, that it is lack of capability or redundancy."
We agree with Mr Smith that the information required to be provided in the Step 1 letter is to afford the employee a reasonable opportunity to consider her response to that information prior to the Step 2 meeting, at which the dismissal or disciplinary action is to be considered.[32](4) Unless the employee is able to understand from the Step 1 communication that she is at risk of dismissal, the purpose of the Step 1 letter cannot be properly achieved (see Zimmer Ltd v Brezan [2008] UKEAT/0294/08/ZT at paragraph 23).[33](5) The written communication sent to the employee does not have to state expressly that the employee is at risk of redundancy. It can do so implicitly (see Homeserve Emergency Services Limited v Dixon [2007] UKEAT/0127/07/CEA at paragraphs 12 to 14, and Aramark Limited v Yahiaoui [2009] UKEAT/0115/09/DM at paragraphs 11 to 13).[34](6) In considering whether the document complies with Step 1, it is legitimate for a Tribunal to take into account whether the document would have been seen by the employee to have been ambiguous, or to have left him in doubt. Where a Tribunal finds that there was an ambiguity or doubt, it is entitled to look at the whole context, including whether the employee knew what the allegations against him were (see Draper v Mears [2006] IRLR 869 at paragraph 48 where HHJ Burke QC said as follows:
"A Tribunal which regards the words of the document said to constitute compliance with Step 1 as ambiguous, or which is doubtful as to whether the words of that document are sufficient to amount to compliance, is entitled to look at the whole context in order to resolve any such ambiguity or any such doubt. It is legitimate, as we see it, for a Tribunal, in considering whether a document complies with Step 1 to take into account whether the document would have been seen by the employee to have been ambiguous or to have left him in doubt. Insofar as the Tribunal adopted that approach, in this case they were entitled to do so and it being accepted that Mr Draper knew full well of the allegations against him before that letter reached him, only one conclusion would have been open to the Tribunal, namely that there has been compliance with Step 1."
[35](7) A communication can be read together with a separate document that accompanies it (see Zimmer at paragraph 25 and Metropolitan Police Commissioner & Others v Eioyaccu [2009] UKEAT/0023/09/SM at paragraphs 22 to 23).[36]Mr Smith, in a series of able submissions presented on behalf of the Claimant, contends essentially that the letter sent to the Claimant on 12 April 2006 was sent three months before the email of 7 July 2006 inviting her to a review meeting. Neither that letter nor any other previous warnings of redundancy can have the effect of saving the defective and non-compliant nature of the email of 7 July 2006.[37]On the facts of this case he submits, firstly, that it was neither irrational nor unreasonable for the Claimant to take the view that the review meeting referred to in the email was for the purpose of discussing the mechanics of her continued employment with the Respondent, that is the identification of a suitable alternative permanent role for her, rather than the termination of her employment. At the very least he contends that the email had the potential, notwithstanding the earlier correspondence, to leave the Claimant in real doubt as to the purpose and content of that review meeting. Secondly, in considering whether earlier communications between the parties can have the effect of saving a defective Step 1 letter, he submits that the Tribunal must take into account the length of time between those communications. The greater the period of time which has elapsed, the greater the potential for confusion and uncertainty in the employee's mind at the time the defective communication was sent.[38]In this case the Claimant had been notified that she was at risk of being made redundant, if no permanent position was found, three months before the meeting at which her dismissal was confirmed. There was during this period a great deal happening to the Claimant, both professionally and personally. Further, in considering the whole context referred to in Draper v Mears it is important to note that, at the time the 7 July 2006 email was sent, the Claimant had already carried out work for the Respondent in various temporary posts since February 2004, and, therefore, for a period of more than two years. She was also having a number of medical difficulties and was unable to attend interviews for various jobs suggested for her. She also wanted to extend the review period.[39]The letter of 12 April 2006 referred expressly to the possibility of the Claimant obtaining a further temporary work placement within the Children & Family Services Department and also to the permanent position of Business Development Support Officer. Examined in context, therefore, Mr Smith submits that the Respondent's failure expressly to inform the Claimant, in the 7 July 2006 email, that the review meeting was scheduled specifically for the purpose of discussing her potential dismissal, constituted a fatal breach of Step 1 of the procedure.[40]He points out that the 7 July 2006 email referred also to the forthcoming meeting being the first formal meeting under the Respondent's sickness procedure. There were thus still outstanding issues. A possible extension of the review period was being considered, for which purpose an occupational health report was being obtained. There was therefore the potential for confusion as to the purpose of the meeting on 19 July 2006. There being a doubt about the position, the Claimant was entitled to the benefit of it. The Tribunal's conclusion was therefore in error and should be overturned. The EAT should substitute a finding of automatic unfair dismissal contrary to Section 98A(1) of the Employment Rights Act 1996 . Conclusions[41]In considering these submissions we agree that, viewed in isolation, the 7 July 2006 email does not fulfil the requirements of Step 1. The Respondent accepts that. The essential question in this case is whether, read in the context of the previous discussions between these parties and, in particular, the previous correspondence that passed between them, that email enabled this Claimant to know with certainty, when it was sent to her, that she was at risk of being dismissed by reason of redundancy at the meeting to come.[42]It is important, in answering this question, to consider some unchallenged findings of fact by the Tribunal to which Mr Adjei drew our attention. At paragraph 6.108 the Tribunal found as follows:
"On 4 April 2006 the Claimant commenced a period of certified sickness from which she did not return. At that point it was clear the Claimant would never return to Asylum Service in whatever capacity and further as the Claimant had not found alternative posts the Respondents could have declared her redundancy at that stage and in any event the Claimant had been made aware of this by Ms O'Brien in August 2005 and February 2006."
[43]At paragraph 9.21 the Tribunal gave their reasons for finding the reason for dismissal to be redundancy and we have referred to that paragraph in this Judgment earlier on. At paragraph 9.24, in considering the Claimant's complaint of direct race discrimination, the Tribunal found as follows:
"The decision to dismiss was not on the grounds of the Claimant's ethnic origin. It was clearly because all efforts had been made to redeploy the Claimant from February 2004 to August 2006. That had not been successful and it had been made perfectly clear to the Claimant as long ago as 2005 by Ms O'Brien that failure to find a suitable position would result in redundancy. There is no connection with the dismissal on the ground of the Claimant's ethnic origin."
[44]In relation to ordinary unfair dismissal at paragraph 9.25, the Tribunal found as follows:
"So once on the redeployment list the Claimant was aware if no suitable alternative was found ultimately redundancy would occur. She was warned in August 2005 by Ms O'Brien that should her secondment to Procurement which ended on 31 March 2006 without being redeployed her employment would cease due to redundancy on 1 April 2006. This was subsequently extended by Ms Jewell on 10 April 2006 and confirmed by an email of 12 April 2006. That email in summary said if no permanent position within the next three months is found your employment would end due to redundancy but before that was confirmed a further meeting would take place to discuss."
[45]Against that factual background, we consider that the letter of 25 August 2005 and the email of 12 April 2006 both made it clear to this Claimant that she was at risk of being dismissed by reason of redundancy. We accept Mr Adjei's submission, having looked at the relevant correspondence, that the email of 7 July 2006 can only be properly understood by reference to the previous correspondence which had passed between the parties.[46]The email of 12 April 2006 must have alerted the Claimant to the fact that a further review meeting was to be held after three months. In our judgment, the Claimant can have been in no doubt about that.[47]It is clear, too, that the reference in the email of 7 July 2006 to the review meeting could only have been understood to be a reference to the meeting referred to in the email of 12 April 2006. Since it is permissible to read together a communication accompanied by another document or documents, there is no logical reason why a written communication that, on its face, refers clearly to the contents of an earlier document, should be regarded any differently.[48]Mr Adjei points, in addition, to the final sentence of the 7 July 2006 email inviting the Claimant to make contact if she needed any further clarification. He emphasises that there never was any contact made by the Claimant, or her trade union representative, in order to clarify the purpose of the forthcoming meeting.[49]On the evidence this meeting clearly had two purposes, one of which was, unambiguously, the further review anticipated, when her dismissal for redundancy would be considered.[50]Mr Adjei also points out that neither the Claimant nor her representative ever suggested at the meeting that she had been taken by surprise by what was discussed, in terms of her continued employment with the Respondent. The minutes of the meeting, to which we were referred, bear this out.[51]We all have some sympathy for this Claimant. We are grateful to both counsel for their helpful submissions, but we are particularly grateful to Mr Smith who has appeared on the Claimant's behalf today and has said everything that could be said. However, in our judgment, when the email of 7 July 2006 is read in context it clearly informed the Claimant that she was at risk of dismissal for redundancy. We therefore consider that it complied with the requirements of Step 1 and that the Tribunal's decision was correct.[52]For all those reasons, this appeal must be dismissed.