Appeal No.	 EAT/0666/02/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	                On 29 May 2003
Judgment delivered on 2 July 2003

Before
HIS HONOUR JUDGE BIRTLES
MR D A C LAMBERT
MRS R A VICKERS

WENDY COMFORT	APPELLANT

LORD CHANCELLOR'S DEPARTMENT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR IAN GATT QC
(of Counsel)
Instructed by:
Free Representation Unit
Peer House
4th Floor, 8 - 14 Verulam Street
London WC1X 8LZ	
For the Respondent	MR PHILIP COPPEL
(of Counsel)
Instructed by:
The Treasury Solicitor
(Employment Team)
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS	

HIS HONOUR JUDGE BIRTLES
Introduction
1	This is an appeal from the Decision of an Employment Tribunal sitting in Cardiff, on various dates in February, April and May 2002.  The Decision was sent to the parties and entered in the Register on 17 May 2002.  The Chairman was Mr Geoffrey Davies.  

2	The unanimous Decision of the Tribunal was that it refused to discharge itself on the ground of bias, and it dismissed the Appellant’s claims for disability discrimination, unlawful constructive dismissal and breach of contract.

The Notice of Appeal
3	By a Notice of Appeal dated 24 June 2002, the Appellant appealed to the Employment Appeal Tribunal on three grounds.  At a preliminary hearing on 20 November 2002 a different panel of the Employment Appeal Tribunal, presided over by His Honour Judge Altman, dismissed the first two grounds of appeal and permitted the third ground of appeal to go forward to a full hearing.  That ground of appeal in essence alleged that the Employment Tribunal had acted perversely in that it accepted the evidence of the Respondent’s witness, Mr Peter Risk, whom it was alleged falsified documents and given perjured evidence.  

4	The Employment Appeal Tribunal also accepted a submission made by Mr Whale, of Counsel, who appeared on behalf of Miss Comfort, under the Employment Law Appeal Advice Scheme.  The Appellant was also represented by Mr Roger Panting, who is the Appellant’s partner, and a former criminal solicitor.  As a result of the Order of the Employment Appeal Tribunal at the Preliminary Hearing, an amended Notice of Appeal was drafted and filed by Mr Whale.  At the hearing of the full appeal Mr Ian Gatt QC, sought to re-amend the Notice of Appeal to put forward a point which had not been argued at the Preliminary Hearing and we refused permission to Mr Gatt to rely upon the re-amended Notice of Appeal.  The full Reasons for that Decision are in a separate Decision, delivered by Judge Birtles at the full hearing, and those Reasons are recorded separately.  The amended Notice of Appeal takes a point about breach of contract.  Those are the two grounds of appeal which he heard at the full hearing.  

Tribunal Decision
5	The Decision of the Employment Tribunal is in a somewhat unusual form.  Instead of the usual practice of recording findings of fact in one part of the Decision, the Employment Tribunal has broken up the findings of fact in different places in its Decision.  It has done the same with its reasoning.  We have no doubt that the reason for this was because of the number of issues which the Employment Tribunal were required to decide; these were, in effect, separate issues: see Decision paragraph 10.  However, some of the difficulty we have had in following the Employment Tribunal’s reasoning comes about because of the way in which the Decision is structured.  It would have been much easier to comprehend the reasoning of the Employment Tribunal if it had followed the conventional form of decision.  

6	The material facts relevant to this appeal are that the Appellant was employed by the Respondent from 15 November 1976 to 26 April 2001, and ultimately as Group Finance Performance Officer at the Respondent’s Circuit Office, Churchill Way, Cardiff.  The Tribunal set out its findings of fact in paragraph 18 of its Decision under the heading “Constructive Dismissal”.  It said this:
“(1) As stated in evidence by Mr Risk and other witnesses for the respondent and which was not in issue between the parties, during the early months of 2000 and following discussions with the Presiding Judges of the circuit, a decision was made to merge the Swansea and Cardiff Groups of Courts. That decision was communicated to senior staff by letter dated 31 May 2000 - A12 p.99
(2) By that time, the applicant had been away from working in the courts for ten years and was then currently Group Finance Officer in the Cardiff Group Manager’s Office.  On being asked, she expressed her wish to be appointed as Court Manager of Newport County Court and stated that she did not want to work in the Cardiff Civil Justice Centre.  However, the position in Newport County Court was not vacant and the only vacancy was in the Cardiff Civil Justice Centre.  For the post to become vacant in Newport for Miss Comfort, it would have meant that the post holder in Newport would have had to have been transferred to Pontypridd and the post holder there transferred to Cardiff.  The applicant agreed that to do that would not have been reasonable.  
(3) Furthermore because of considerable change in the operations of the courts during the ten years that Miss Comfort had not been working in the Courts, it was necessary for her to undergo three months’ training and two months’ shadowing a Court Manager before the applicant could be appointed as a Court Manager.  The applicant confirmed that she needed training and that shadowing a Court Manager was the correct course before a person goes into such a post.  Indeed, under cross-examination, the applicant said that it would have taken months of retraining for her to be comfortable to cover the changes in the court’s operations and procedures and without real training, it could create difficulties for a Court Manager’s post.  She also agreed that there could not have been better training for a Court Manager’s post in Newport than court training in Newport County Court and yet she refused that because, according to her, she would not have been training for Newport.  According to the respondent’s witness, Mrs Thomas, training was a “golden opportunity to get to grips with the new procedures after being out of the courts for ten years”.  The applicant also accepted that shadowing would have been for a prospective Court Manager’s position and the correlation of same to having been out of the system for ten years.  
(4) The circumstances of the three other senior persons, with whom the applicant compared herself, Mrs Janet Jones, Mr Richard Skevington and Ms Susan Lewis were not comparable.  The applicant in evidence had agreed that either they had not been out of the court section for as long as she had or had more experience than her.  
(5) Miss Comfort admitted that she was never told that there was no job for her nor that she would not get the Newport Court Manager’s job.  Actually, the applicant’s own witness, Mrs Janet Jones informed the tribunal that shadowing was to get to know the Court Manager’s role and the purpose was relative to applying for and taking up that position.  
(6) Newport County Court was the second largest court in Cardiff Civil Justice Centre in South East Wales and the applicant, if appointed to the Court Manager’s post there, would have been responsible for twenty-five to twenty-eight staff.
(7) The respondent, quite understandably and responsibly, was not prepared to give Miss Comfort an assurance of the Court Manager’s position in Newport because it was occupied at the time.
(8) The tribunal accepts, as stated by Mr McNally in evidence, that from June to the end of August 2000, Mr Risk and Mr Pickett were both “bending over backwards” to try to give the applicant a post that she wanted and that by March or April 2001, a post would have become vacant.  Quite apart from any other post, Mr Risk confirmed that right up to 28 April 2001, if the applicant had said that she would accept Cardiff, he would have given her that position rather than her staying off work.  Relative to that, Miss Comfort agreed that, if there were no other jobs available, she would have gone to Cardiff and that she could not dictate that she went to a post at a particular time.  
(9) The applicant’s contention that she did not consider that there was a vacant post in Cardiff for her is not accepted because Mr Risk expressly stated that first, there was a vacancy there and secondly, in any case, in his position then, as the respondent’s Administrator for the Wales and Chester circuit, he could have created posts up to Span 8, the former Principal Officer grade.  
(10) The respondent, through its senior management personnel, did its very utmost to resolve the applicant’s position despite her only being prepared to consider the Newport Court Manager’s post and the practical impossibility, for the respondent, to concede to that because it was not vacant.
(11) Therefore, the respondent did not commit a serious breach of contract entitling the applicant to resign and thereafter to assert that she had been constructively dismissed.  In the circumstances then prevailing, the respondent throughout behaved reasonably.  As a result, the unanimous decision of the tribunal is that Miss Comfort was not constructively dismissed and not unfairly dismissed by the respondent from her employment.”
The first ground of appeal
7	Mr Gatt QC submitted that according to the Tribunal’s findings of fact what happened at two lunch time meetings between the Appellant and Mr Risk to the Appellant was critical.  These took place on 18 September 2000 and 19 October 2000.  According to Mr Risk they took place on 28 September 2000 and 19 October 2000.  Mr Risk described the two disputed meetings in his witness statement: EAT bundle page 99.  At the end of his account he referred to word-processed notes of those meetings which he said were contemporaneous in the sense that he had caused his secretary to produce them shortly after he returned from the two meetings.  On 6 February 2002, the Tribunal adjourned to 29 April 2002.  In that time the Appellant obtained the disclosure of word processed file notes of the meetings.  They showed that the computer files in question had not been created on 28 September and 19 October 2000 but at 11.02 am and 11.32 am respectively on 3 January 2001.  That was some time after the first letter from the Appellant’s solicitors, to the Chief Executive of the Courts Service.  The Appellant obtained a Witness Order requiring the attendance of Mr Risk’s secretary, a Ms Donna Mulhern.  She gave evidence on 29 April that she had typed these two file-notes together from hand written notes, provided by the Appellant.  At the resumed hearing on 29 April 2002, the Appellant was represented by Mr Panting, who asked for Mr Risk to be recalled to explain the discrepancy between this and his previous sworn evidence.  The Chairman warned that there might be costs implications and Counsel for the Respondent said that costs would be sought if Mr Panting did not pursue the application.  Mr Gatt QC’s claim here is that the Employment Tribunal failed to deal with the doubt cast on Mr Risk’s evidence, and by failing to do so, the Tribunal fell short of its duty to explain to the parties why they had won or lost: Meek -v- City of Birmingham District Council [1987] ICR 250 and Anya -v- University of Oxford [2001] IRLR 377.  

8	Mr Philip Coppel for the Respondent points to the fact that first the Appellant made the submission to the Employment Tribunal that the notes were forgeries and that they represented an attempt at backfilling on the part of Mr Risk.  Second, he points that a careful reading of the paragraphs of its Decision, as set out above, show that the Tribunal decided the matters in issue based on other evidence, the vast majority of which predated the alleged acts complained of.  The Employment Tribunal referred to the submission in its Decision: EAT bundle page 6, paragraph 11, and did not find it necessary to express a view on the point.  It was quite clear from the Chairman’s letter to the Employment Appeal Tribunal that it was aware of the conflict of evidence: EAT bundle 57, paragraph 7.

9	In his Skeleton Argument, Mr Coppel identifies a series of meetings and discussions between the Appellant and various members of the Respondent’s staff to discuss her situation, and it is not necessary to repeat them here.  They begin in June 2000 and end on 11 September 2000.  In addition, at the second meeting on 19 October between the Appellant and Mr Risk, the Appellant was handed a letter which says this:
“I have now had the opportunity to reflect on what would be the most appropriate development move for you, that would also bring the greatest benefit to the Circuit.  As I said when we had lunch, this is a difficult decision given the present state of Span 6 posts in South Wales.
After careful consideration I have decided that you should temporarily transfer to Newport County Court, with effect from 1 November, to undergo three months training in County Court procedures and systems.  I will ask Di Thomas to liaise with Jan Jones and the Training Managers to develop a suitable training plan, which will cover both AO and EO duties.
At the end of January you will go on detached duty to Pontypridd, where I will expect you to shadow the Court Manager, in addition to supporting the other grades.
During March 2001, I will decide which post you will take up from 1 April.  Your move at that point will be a permanent transfer.  I hope that the 5 months of development you are about to receive will allow you to be considered for a full range of duties.  However, out of fairness to you, I should make it clear that the decision I take in March will be in the best interests of the Circuit.”

10	Mr Coppel submitted that in the evidence before the Tribunal the following matters emerged:-
(1) that the Appellant knew that there was a fourth HEO post in Cardiff: see paragraph 1 of her Originating Application (page 27); witness statement, paragraph 16 (EAT bundle page 29); a further statement: 12 (EAT bundle page 112).  Mr Coppel says that this evidence fully justifies the Employment Tribunal finding that the Appellant knew that there was a fourth HEO post in Cardiff and there was therefore no redundancy situation.  

(2)  There was therefore no necessity for the Appellant to resign and claim unfair dismissal.  Furthermore, there was ample evidence from which the Employment Tribunal could find that the Respondent was trying very hard indeed to accommodate the Appellant’s desire for a career change to become a Court Manager.  In the Autumn of 2000, there was no vacant post as Court Manager and the Appellant needed training.  That is what the letter of 19 October 2000 provided for.  

11	We agree with the submissions of Mr Coppel.  In our judgment, a careful reading of the documentation before the Employment Tribunal and the Notes of Evidence make it clear that first, the Appellant knew of the existence of a fourth HEO post in Cardiff, even though she was doubtful as to whether there was enough work to justify it.  That is not the point.  The evidence does not suggest that this post would not be created or that the Appellant would not be considered for it.  Second, the Tribunal was entitled to accept the evidence of the Respondent’s witnesses that it was trying to accommodate the Appellant’s desire to obtain a job as a Court Manager, preferably at Newport.  That issue is fully set out in the passages from the Employment Tribunal Decision as set out above.  

12	We have also considered an ancillary submission that because Mr Panting did not in fact make an application to recall Mr Risk, then either the Tribunal, of its own motion, or the Respondent should have recalled him.  In our judgment, there is no basis in this submission.  The Appellant did not in fact apply to recall Mr Risk and the purpose of the recall was to try to make good the allegation (which had been put to him when he gave his evidence) that he had deliberately fabricated the contents of the notes of his two meetings with the Appellant.  It cannot be necessary for the Respondent to apply to recall Mr Risk if it considered that his evidence the first time round was adequate and persuasive.  Neither, in our view, can there be any obligation upon the Tribunal to recall Mr Risk of its own motion.  We would deprecate any attempt by Employment Tribunals to step into the arena and seek to clarify evidence because it thinks, or may think, that a clearer picture will emerge if a witness is either called or recalled by it.  The Employment Tribunal is a judicial body and it is its function to adjudicate on the case put before it by the parties.  

The second ground of appeal
13	The second ground of appeal is that the Employment Tribunal erred in law in deciding that there was no breach of contract because there was no redundancy situation.  The Employment Tribunal dealt with this issue in paragraph 18 of its Decision under the heading “Breach of Contract” in the following way.  

“(1) Miss Comfort said in evidence that if she had been told to go to Cardiff in a role, she would not have been redundant.  The explanation for that was that there was a mobility clause in her contract of employment.
(2) The reason why she was not instructed to take up a post in the Cardiff Civil Justice Centre was because the respondent was doing its utmost to meet the applicant’s ambition for a Court Manager’s post in accordance with the undertaking given to the respondent’s Whitley Council Trade Union Side - A1 p.103.
(3) As Mr McNally explained in evidence, because of the mobility clause, there was no redundancy even though her previous post ceased to exist and thus, at the beginning of September 2000, she was not surplus to requirements.
(4) Additionally, Mr Risk was confident that there was a post for every member of staff and the Court’s policy was to avoid redundancies in any event.
(5) In those circumstances, the applicant’s position with the respondent was not redundant in accordance with Section 139(1) of the 1996 Act and therefore, it follows that there was no breach of contract by the respondent.”
14	Mr Gatt QC refers us to the statutory definition of redundancy in section 139(1) of the Employment Rights Act 1996.  The relevant part reads as follows:

“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-  
(a) the fact that his employer has ceased or intends to cease-  
(i) to carry on the business for the purposes of which the employee was employed by him, or 
(ii) to carry on that business in the place where the employee was so employed, or 

(b) the fact that the requirements of that business-  
(i) for employees to carry out work of a particular kind, or 
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”

15	Mr Gatt submits that the Employment Tribunal did not consider section 139(1)(b)(i) at all, though it did consider section 139(1)(b)(ii).  However, it decided that there was no redundancy situation because there was a mobility clause.  This was an error of law: see High Table Ltd -v- Horst [1998] ICR 409.  In answer to this, Mr Coppel points to the fact that there was more than adequate evidence before the Employment Tribunal which entitled it to find first, that there was or would be a fourth HEO post available in Cardiff, although the Applicant was unwilling to work in Cardiff.  Second, that the Appellant was to embark upon a training programme which would enable her to be considered for a post of Court Manager if vacant.  

16	We accept these submissions.  In our judgment, there was ample material before the Employment Tribunal which enabled it to find that there was no redundancy situation in this case.  For these reasons the appeal is dismissed.