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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Short (Appeal No 2) v P J Hayman & Co Ltd [2009] UKEAT 0379_08_0712 (7 December 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0379_08_0712.html Cite as: [2009] UKEAT 379_8_712, [2009] UKEAT 0379_08_0712 |
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At the Tribunal | |
On 7 April 2009 | |
Before
HIS HONOUR JUDGE SEROTA QC
MR K EDMONDSON JP
MRS D M PALMER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR SIMON BROWN (of Counsel) Instructed by: Messrs Amanda Capon Solicitors 180E Bridge Road Sarisbury Green Southampton Hampshire SO31 7EH |
For the Respondent | MR BARRY HARWOOD (of Counsel) Instructed by: Northgate Arinso Employers Services Unit 10 Newhalley Business Centre Newhalley 'Road Rawtenstall Lancashire BB4 6HL |
SUMMARY
PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Perversity
The Employment Tribunal failed to include in its written reasons a number of matters including a concise statement of the applicable law, contrary to the requirements of Rule 30(6) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. Nevertheless it was apparent that the relevant law was uncontroversial and that the Employment Tribunal had it in mind when considering the facts and applying them to the law; in the circumstances the decision would be upheld; dicta of Buxton LJ in Balfour Beatty Power Network Ltd v Wilcox [2007] IRLR 63 paragraph 25 applied.
HIS HONOUR JUDGE SEROTA QC
Introduction
The factual background
"3.2 … The Tribunal accepts the evidence of the Claimant that in practice, she did from that time on, continue working only four days per week and that she believed that she was not under a duty to work from home on the fifth day. However, the evidence before the Tribunal shows that the Respondent's personnel file indicated that she had been given the pay rise on the basis of working a five day week and it is clear that the senior management of the Respondent company believed that she should be working a five day week doing one day's work from home. The most likely explanation for this discrepancy is that at the time when the agreement was concluded, the Claimant's line manager was so keen to retain her services that he clouded the issue and left the Respondent's management believing she was on a five day contract when in practice she was only working four days per week.
3.3 The evidence indicates that the Claimant was probably aware that the Respondent was somewhat confused as to the hours she was supposed to be working and certainly at some stage she seems to have knowingly been receiving (a holiday pay entitlement of a full-time employee")
"3.11. The Respondent had reached the conclusion that they did not need a Claims Manager because of the significant decrease in the level of business anticipated in the Department. Documentary evidence produced to the Tribunal supports the Respondent's belief in that respect and show that from late summer 2006 on, levels of business fell very significantly. The Respondent was of the view that the management work undertaken by the Claimant and the more difficult claims she handled personally, could be dealt with by her Manager, Mr Horne, who had previous claims experience, with more routine work undertaken by the more junior Supervisor in the Department, Mr D. Blakey. The Claimant was on a salary of about £27,000 whereas Mr. Blakey was on a salary of around £17,000. The Respondent's evidence is that about 40% of the Claimant's work was managerial in nature and could not be dealt with by Mr. Blakey, whereas the Claimant's evidence is that it was only about 10% of her workload. The evidence showed that in addition to straightforward managerial work, the Claimant was handling the bigger claims and had authority to pay out larger settlements and this was not work that could be undertaken by Mr. Blakey. So taking that into account a significant proportion of her work did need to be carried at her level, or the more senior level of Mr. Horne.
"3.12 When deciding they could remove the post of Claims Manager the Respondent did not identify a wider pool for the consideration of redundancy by including other managers in addition to the Claimant. While at the time they did not expressly address that question, it is clear from the evidence given to the Tribunal that their view was, and remains, that creating such a pool for selection would not be appropriate because all the other managers were running departments of a different nature such as sales or accounts, and there was no diminution in the workload of those departments and the skills required by those managers were different. In terms of any suitable alternative post for the Claimant the Respondent had notified the Claimant of three possible other posts including the position of Claims Handler/Administrator which would be a more junior post in the Department, normally attracting a salary in the region of £12,000 - £14,000. The Claimant had responded that she would not consider any such vacancies as suitable for her. There were two Claims Managers/Handlers based in London and, the loss of the Age Concern contract did not, in any way, affect their work because they handled claims of a totally different nature being indemnity insurance. The Claimant would not have had any experience in handling such claims. Both those employees had been with the Respondent Company for very many years. "
"4. Dealing first with the question of the unfair dismissal claims it is clear to the Tribunal from evidence that the reason for termination of employment was redundancy. The loss of the Age Concern contract was resulting directly in a substantial contraction in the volume of work undertaken by the Claims Department and, this led the Respondent to the decision that the Department no longer needed a Claims Manager. The Tribunal is also satisfied that the Respondent was justified in identifying the Claimant for potential redundancy without looking for a wider pool. She was the only Claims Manager handling holiday insurance and all the other managers dealt with different work such as sales or accounts. There is no evidence that the Claimant would have been suitable for a managerial post in any of those other departments and, in any event, as the work is of a different nature it would not be appropriate to put such managers in a pool to be considered for redundancy. There was, therefore, a straightforward redundancy situation and nothing unfair about identifying the Claimant's post as redundant. They consulted with her and considered whether there were any suitable alternative vacancies, but there were no vacancies that the Claimant was prepared to consider. In those circumstances there was nothing unfair about the decision of the Respondent to terminate employment by reason of redundancy. The Tribunal is also satisfied that the procedures carried out by the Respondent were fair."
"5. However, the evidence is that dispute was resolved at the end of December 2005 when the Respondent conceded the Claimant could work a four day week. There is no evidence at all to indicate the subsequent dismissal of the Claimant related to that dispute or related to the fact that she was working only four days per week as all of the evidence indicates that the sole reason for termination of employment was redundancy. Similarly, the claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 fails as the fact that the Claimant was part-time played no part in the decision to dismiss her or impose any other less favourable treatment. It is clear from the evidence heard by the Tribunal that the Respondent's decision to terminate the employment would have been the same had the Claimant been a man and, the same had the Claimant worked full-time. Given the lost of the Age Concern contract there was a good business reason for removing the post of Claims Manager and making a substantial saving on the salary bill. "
Notice of Appeal and Claimant's Submissions
The Respondent's submissions
Discussion as to the Law
"An elaborate formalistic product of refined legal draftsmanship" but rather "the parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the Employment Appeal Tribunal or, on further appeal, this Court [The Court of Appeal] to see whether any question of law arises…"
"Industrial tribunal's reasons are not intended to include a comprehensive and detailed analysis of the case either in terms of fact or law…their purpose remains what it has always been, which is to tell the parties in broad terms why they lose, or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought upon any such analysis. This, to my mind, is to misuse the purpose which reasons are given".
"We do not accept the argument that because there was neither mention of the Sex Discrimination Act 1975 nor of the leading sex discrimination authorities, the decision was flawed or the Chairman failed to direct the lay member's minds to the appropriate legal principles. We accept Ms Cox's submissions on this point. What split the members of the tribunal was not the legal principles which the parties were at one about, but rather their appreciation of the credibility of the evidence. In general terms it can be seen that the majority have found the relevant facts; identified the less favourable treatment and drawn the inference. Contrary to Mr Korn's convincing submissions, we were not persuaded by him that the majority have slipped into the trap of making an intuitive hunch without supporting material. On analysis, having regard to the documents, the notes of evidence and the decision, we are satisfied that it was open to a properly directed tribunal to find unlawful discrimination as alleged. This is not so much a case where the conclusion was manifestly perverse, but rather one which could be, and was, subjected to critical analysis, based upon the form of the Decision itself. Whilst we would not condone a tribunal decision which does not set out the relevant legal position and does not make findings of fact on all the principal submissions made, this does not amount to an automatic ground of appeal. It has to be shown that omitting to set out the legal principles or key submissions made has led to a consequent error of law or incorrect finding of fact. We are unable to intervene in the majority's findings, which although lengthy, set out their grounds for finding discrimination in sufficient detail to allow both parties to understand the reasoning behind their finding of discrimination. "
The EAT must respect the factual findings of the employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not "use a fine toothcomb" to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law.
30 (6) Written reasons for a judgment shall include the following information-
(a) the issues which the tribunal or chairman has identified as being relevant to the claim;……
(c) findings of fact relevant to the issues which have been determined;
(d) a concise statement of the applicable law;
(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues.
"I do not doubt that in future Employment Tribunals will be well advised to recite the terms of rule 30(6) and to indicate serially how their determination fulfilled its requirements, if only to avoid unmeritorious appeals. But the rule is surely intended to be a guide and not a straight jacket. Provided it can be reasonably spelt out in the determination of the Employment Tribunal of what rule 30(6) requirements have been provided by that Tribunal, then no error of law would have been committed."
139. -(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to- …
(b) the fact that the requirements of that business-
(i) for employees to carry out work of a particular kind…
have ceased or diminished or are expected to cease or diminish.
"The key word in the statute is "attributable" and there is no reason in law why the dismissal of an employee should not be attributable to a diminution in the employer's need for employees irrespective of the terms of his contract or the function which he performed. Of course the dismissal of an employee who could perfectly well have been redeployed or who was doing work unaffected by the fall in demand may require some explanation to establish the necessary causal connection. But this is a question of fact, not law."
"12. When the principal ground of appeal is, as here, perversity of the decision of the fact-finding tribunal, there is an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the Employment Tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the Employment Tribunal. Only the Employment Tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on a question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an Employment Tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on the conduct of the proceedings and the decision of the Employment Tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the court's competence to question the evidential basis for findings of fact by the Employment Tribunal. It is a rare event for the appellate body to have all the documents put in evidence in the Employment Tribunal. No official transcript of the oral evidence exists. If an order is made for production of the chairman's notes, it is usually on a selective basis, related to the particular grounds of appeal, which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on an appeal."
And at paragraphs 93 to 94:
"93. Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34.
94. Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the Extended Reasons of an Employment Tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal.
95. Inevitably there will from time to time be cases in which an Employment Tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal. I am, of course, well aware that this is easier said than done, especially when, as here, neither side was legally represented on the first level of appeal. As the Employment Appeal Tribunal was well aware, unrepresented litigants have understandable problems in separating questions of law from proof of facts and in distinguishing the making of legal submissions from submissions of fact, even giving evidence in the course of submissions."
Conclusions
Was there a redundancy situation?
Fairness of Selection Process
Perversity
Discrimination