EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Clarke Lady Dorrian	[2010] CSIH NO.11 XA165/08 OPINION OF THE COURT delivered by LADY DORRIAN in Application by KENNETH McALPINE Appellant; for LEAVE TO APPEAL A DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL _______

Act: [Solicitor]Party

Alt: [Solicitor]Fairley; McGrigors LLP

12 February 2010

Introduction

[1] This is an application for leave to appeal against a decision of the Employment Appeal Tribunal. The appellant had lodged a notice of appeal in respect of a decision of the Employment Tribunal registered 13^th August September 2007. In terms of rule 3(7) of the Employment Appeal Tribunal Rules 1993, that notice was considered in chambers by a judge who took the view that the notice disclosed no reasonable grounds for bringing the appeal. The appellant exercised his right under Rule 3(10) to have a hearing before a judge who, on 18^th August 2008 decided that no further action should be taken on the notice of appeal. Subsequently, on 18 August 2008, the judge, in chambers, refused leave to appeal to this court. The appellant sought a hearing on that issue, after which the judge, on 28 August 2008, confirmed that no further action would be taken on the notice of appeal. In these proceedings the appellant seeks leave to appeal under section section 37 of the Employment Tribunals Act 1996 under which an appeal lies, with leave of the appeal tribunal or appeal court, from "any decision of order of the Appeal Tribunal".

Background

[2] The appellant's employment with the respondent came to an end in June 2006 when he was dismissed for redundancy. He claimed that the dismissal was unfair and also that he had been discriminated against contrary to the Disability Discrimination Act 1995. He claimed that he was selected for redundancy because he was a diabetic or for reasons relating to his diabetes. Contrary to the position advanced by the appellant, the Tribunal were satisfied that the reason for dismissal was redundancy and that the respondents had acted reasonably in dismissing him for that reason. The facts which were found by the Tribunal are conveniently summarised in the decision of the Employment Appeal Tribunal as follows.

"Although the claimant was employed as an on-demand service manager, (oSDMOSDM,) 6there were many elements of that role which he did not carry out. In December 2005, the claimant had indicated to his senior manager, Mr. Snowden, that he was not happy with his work. The element of his job which involved him being responsible for incident management for the Environment Agency account was thereafter deleted from his responsibilities.

At a meeting when the above was discussed, Mr. Snowden learned for the first time that the claimant was a diabetic. At a meeting that took place a few days later between the claimant and his line manager, Mr. Cooper, there was discussion about what the claimant would do when the Environment Agency account matured, as it was put. The respondents would have been looking for him to take on a full oSDM OSDM role but he did not want to do that. He indicated that he would look for other roles in the organisation. The claimant was also told that he need not carry out work for another client in the first few days of each month when he was preparing the Environment Agency report, the claimant having indicated that he felt his workload excessive.

In January 2006 it was announced that there was to be a merger between the respondents and CBL. That was going to result in reorganisation. A new service desk was to be set up to cover all on-demand service delivery. There were also to be customer incident managers for all large accounts. The above changes effectively removed the need for the claimant's role. The only part of his role that would remain would be the preparation of a monthly report and there was no need to have an employee who was employed only to carry out that task. A need for redundancies was recognised. Ultimately, 121 employees were made redundant across the UK.

In February 2006, a reduction in force list, referred to as an "RIF list" in the Tribunal's judgement, was compiled by Mr. Malcolm Thompson who is Mr. Cooper's line manager. The claimant's name was put on to it in February 2006 on the findings of the Tribunal. He did not at that time know that the claimant was a diabetic. He knew that the claimant had concerns about being stressed and had discussed it with his manager.

Some time early in 2006 the claimant had been in touch with HR as had Mr. Snowden regarding seeking alternative employment for him. There was an exchange of e-mails involving Mr. Snowden, Ms. . Temple of HR and Mr. Thompson in April 2006 in which Mr. Thompson raised the possibility of two options for the claimant by way of alternative employment. Mr. . Snowden also referred to the possibility of him going off sick if he were allocated to either option. The claimant had not, though, had previous sickness absence of any significance. Ms. Temple and Mr. Snowden both gave evidence which was accepted by the Tribunal that the references to sickness absence were an error. Mr. Snowden was not, at the time of the e-mail exchange about the options for alternative work aware that the claimant was on the RIF list."

[3] Before the Employment Appeal Tribunal, four points were advanced for the appellant. These were:

1. There was no evidence before the Tribunal of the basis on which the appellant had been put on the RIF list.

2. The e-mails were such that the Tribunal could only have concluded that dismissal was because of diabetes and that the decision to make him redundant had been made prior to any attempt at consultation on the matter.

3. The respondent's efforts at consultation were not genuine.

4. The evidence of Mr. Cooper, Mr. Snowden and Ms. Temple should have been discounted by the Tribunal because their written statements gave rise to the conclusion that there must have been collusion involved in their preparation.

[4] As previously noted, Tthe Employment Appeal Tribunal decided that there was no arguable case and that no further action should be taken on the notice of appeal. The appellant now seeks leave to take the matter further.

The application for leave

[5] At the outset of the hearing on the application, counsel for the respondent raised two preliminary issues. First, whether there was an appealable "decision or order" for the purposes of the Employment Tribunals Act 1996, section 37; and secondly, whether it was competent to raise on appeal issues which had not been canvassed before the EAT.

[6] Beyond that, the position of the respondent was that leave should not be granted in respect of any of the grounds of appeal since none met the test explained in Campbell v Dunoon & Cowal Housing Association Ltd 1992 SLT 1136 @ 1137 where the court noted that in order to obtain leave to appeal an appellant had to "show something of the nature of probabilis causa in relation to a genuine point of law which is of some practical consequence".

[7] The appellant addressed us on the grounds of appeal under reference to submissions contained in two written documents prepared by him and headed respectively "merits" and "law". We shall deal with each ground of appeal in the order dealt with in those documents.

[8] Ground 5.1 The nub of this ground of appeal is that the Employment Tribunal should not have accepted the respondent's ET3 form (the response to the appellant's claim) since it was incorrectly completed. Having answered question 23 in a way which should have led them to proceed directly to question 26, they nevertheless continued to answer questions 24 and 25. It seems to us that it was a matter for the discretion of the tribunal whether, and how, the response fell to be considered and no error in law has been identified.

[9] Grounds 5.2, 5.3 and 5.4 These grounds are linked together, although as set out in the grounds of appeal they are not very clearly stated. However, from the elaborations contained in the two submission documents it was clear that the root of the appellant's complaint under these grounds was an assertion that the Employment Tribunal were not entitled, on the evidence before them, to reach certain conclusions. In particular they were not entitled to conclude:

(a) That at the time Mr. Thomson put the appellant's name on the RIF list he was unaware of the appellant's diabetes;

(b) That the role occupied by the appellant had been made redundant;

(c) That there was insufficient evidence to link the treatment of the appellant with his diabetes; and

(d) That the reason for the redundancy was that reorganisation of their business led to a diminution in the need for employees to carry out the limited oOooSDM role which the appellant had performed.

[10] It was suggested in respect of (a) that there was no evidence before them which would have entitled them to reach this conclusion ("law" document) or that they reached this conclusion purely on the statement of a witness who was not present at the tribunal ("merits" document). This is not correct, as is made quite plain in paragraphs 167-169 of the decision where the evidence of other witnesses is referred to. As to the remaining conclusions, the argument for the appellant was largely to the effect that the Tribunal should not have interpreted certain e-mails and the evidence which the Tribunal heard about them in the way that they did. However the interpretation of the evidence before them was a matter for the tribunal. The conclusions which they reached were conclusions which were reasonably open to them on the evidence before them and no error in law has been identified. As with several other grounds of appeal these grounds were an attempt to categorise a determination of the tribunal that they preferred one piece of evidence over another, or one interpretation over another one, as an error in law when it is plainly no such thing.

[11] Ground 5.5 The Tribunal found that although the appellant's job title was oSDMOSDM, he in fact performed only a small part of that job (paragraph 19). Ground Ground 5.5 asserts that this finding was contrary to the evidence. It is clear from paragraph paragraph 18 this was not the case and indeed that the claimant himself accepted that there were many elements of the oSDM OSDM role that he did not carry out. The assessment of the evidence was a matter for the tribunal and no error in law has been identified.

[12] Ground 5.6 This was a complaint that the Employment Tribunal acted inequitably in allowing certain statements to be "taken as read". Paragraph 8(dg) of the Tribunal's decision records:

"The respondent had, by agreement, produced witness statements. The Chairman directed the statements would not be taken as read, but upon reconsideration, - given that the claimant's evidence took more than one day to complete, and there was time overnight to read the statements - directed they would be taken as read. There was no objection to this."

The course of action was thus acquiesced in the by the appellant. We understand that it is not uncommon for such a practice to be followed in the Employment Tribunal. Furthermore, rule 14 in schedule 1 of the Employment Tribunals (Constitution etc ) Regulations 2004 provides as follows:

" (2) So far as it appears appropriate to do so, the Employment Judge or tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts."

To proceed as it did was clearly within the competency of the tribunal and we can identify no prejudice to the appellant in the tribunal having done so. Again no error in law has been identified.

[13] It may be that there has been some misunderstanding here. The appellant appears to be under the impression that in allowing these statements to be "taken as read" the Tribunal were using that phrase as meaning "to accept that something is true without making sure that it is". That, of course, is not the meaning in which the phrase was used by the Tribunal, which used it simply to mean that the written statements could be taken as the evidence in chief of the witnesses to whom they related.

[14] Grounds 5.7 to 5.9 These grounds are linked, being grounds based on assertions that:

·       There was collusion between certain witnesses;

·       There was perjury from certain witnesses; and

·       That certain documents had been fabricated

[15] It seems to be suggested that the Tribunal should have identified this collusion, fabrication or perjury and as a result rejected the evidence of the witnesses involved. In the first place, no points of this kind were raised before the Tribunal and nor was there evidence tending to support any such assertions. If a party suspects collusion, perjury or fabrication it is for that party to cross examine the witnesses in such a way as to lay that suspicion before the court or tribunal. It will be very seldom that such matters will be so flagrant as to give rise to a suspicion in the minds of the tribunal ex proprieo motu and there was nothing in the evidence before the Tribunal which should reasonably have done so. The Tribunal concluded that the witnesses in question were credible and reliable and on the evidence before them those were conclusions which they could reasonably hold. No error in law has been identified.

[16] Ground 5.10 This ground is also linked with the preceding grounds, being an assertion that certain documents were altered. It differs from the previous grounds in that the matter was raised before the tribunalTribunal, which records the submissions made in paragraph 8(g) of the decision. Having recorded the nature of the submissions being made by both parties, the decision records, at the end of paragraph 8, the following direction:

"The Chairman directed, having heard the submission of the parties above, that if the claimant's position was that the respondent had deliberately altered and/or omitted documents to improve their position in this case, that should be put to the relevant witness/es for comment. Thereafter, the Tribunal - at the request of the respondent - would make a specific finding of fact regarding that matter".

It proceeded to do so at paragraphs 125 and 126. Having set out the factors which they accepted, they recorded at 126 that :

"We concluded from the above that the claimant's allegation was unfounded and that the respondent had not deliberately altered, amended or removed documentation from the bundle of productions in order to improve their case at this Tribunal."

This is a conclusion which the evidence will bear and no error of law has been identified.

[17] Ground 5.11 This relates to a decision by the Tribunal to allow the respondent orally to make a motion for dismissal of the appellant's claim for injury to health, the appellant having moved orally at the hearing to withdraw that part of the claim. The procedure in question is covered by regulation 25 which, at the relevant time, provided as follows:

"(1) A claimant may withdraw all or part of his claim at any time - this may be done either orally at a hearing or in writing in accordance with paragraph (2) ......

(4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed. Such an application must be made by the respondent in writing to the Employment Tribunal Office within 28 days of the notice of the withdrawal being sent to the respondent. If the respondent's application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed)."

The Tribunal, having noted the terms of the rule requiring a written application, stated in paragraph 133:

"We considered that as withdrawal of the claim had been done orally at the hearing we could consider the respondent's oral application for dismissal".

[18] Having regard to the wording of paragraph 25(4) it may be that an error of law, procedural in nature, has been identified in this ground of appeal. However, we note that the Tribunal correctly stated at paragraph 134 that any argument regarding injury to health is not a free-standing claim but is dependent on part of the disability discrimination claim being successful. Had the Tribunal left the matter for the respondent to submit a written application within 28 days of the withdrawal of the claim, it merely means that the issue would have been considered at a later stage. Standing that the hearing concluded on 6^th August and the decision, signed on 6 September and registered on 13the 13 September, was that the disability discrimination claim had to fail, it is inconceivable that a different decision would have been reached by the Tribunal in respect of the parasitical claim. Accordingly, whilst a technical error in law might have been identified it is not one which is of practical consequence.

[19] Leave to appeal will therefore be refused on all grounds.

[20] Since we have determined the matter on the basis that there are no stateable grounds of appeal identified it is not necessary for us to determine the preliminary arguments advanced on behalf of the respondents.