Appeal No. UKEAT/0172/11/JOJ

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 31 August 2011

Before
HIS HONOUR JUDGE PUGSLEY
MRS C BAELZ
MR C EDWARDS

CHORLEY BOROUGH COUNCIL	APPELLANT

MR W ANDREWS	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR RICHARD CARTER
(of Counsel)
Instructed by:
Forbes Solicitors
Rutherford House
4 Wellington Street (St Johns)
Blackburn
BB1 8DD

	
For the Respondent	MR ANDREW BYLES
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
23 Princess Street
Manchester
M2 4ER

SUMMARY
UNFAIR DISMISSAL

In this case the Employment Tribunal found that the Claimant was unfairly dismissed due to his trade union activities.  On the findings of fact the ET make, this was a decision clearly open to the ET as the appeal was dismissed.  There was a factual basis on which the ET was entitled to draw an inference.

HIS HONOUR JUDGE PUGSLEY
Introduction
1.	Mr Carter, who appears for the Appellant must, during his address to us, have felt something like a member of the infantry approaching the enemy lines on 1 July 1916 in the Battle of the Somme.  Moreover, both the industrial members have an extensive knowledge of employment issues and both are united in their view that this is a case in which the Tribunal were entitled to reach the decisions they did.  It comes as no surprise, therefore, to say that we have considered carefully the arguments, well-put on behalf of the Appellant, but at the end of the day this is a case, for reasons we will give, that the appeal fails.

Background
2.	The Claimant was employed by the Appellant borough council from 1988 until August of 2009.  Initially employed as a gravedigger, he was then employed as a team leader in the Grounds and Maintenance Department.  After he was diagnosed with vibration white finger he was, in 1996, redeployed as an Assistant Market Manager.  In 2002, he was promoted to Market Manager.  He had for several years, at the time of his dismissal, been the Branch Secretary of Unison.

3.	In that difficult and demanding job he had been active in supporting a Tribunal claim made by someone called Steven Brereton, in which allegations were made that one of the Human Resources officers, Mrs Meek, had exerted pressure in connection with Mr Brereton, in connection with his trade union activities.  That claim was settled out of court.  Mr Andrews had also been active in organising opposition to the management’s proposals to outsource management markets in Chorley, which had eventually been abandoned.  In 2009, the Chief Executive, having been asked to investigate the cost savings, proposed a restructure within the Business Directorate, the People Directorate and the Chief Executive Officer of the office of Chorley Borough Council.

4.	It is a small local authority with some 400 employees and the restructuring was to effectively delete 17 posts which were replaced by 11.  In the area of the management of the market it would propose to delete the jobs of Market Managers, Senior Market Managers and Market Officers, and replace with a Market Co-ordinator and a Market Officer.  The post of Market Co-ordinator, which in fact replaced much of the Claimant’s post, was to be on scale 5, which was several thousand pounds less than his salary that he enjoyed before he was made redundant.

5.	The council had appointed, on grade PG, a post of Town Centre Manager to a Mr Conrad Heald.  Mr Heald was a graduate.  He had considerable experience in both the retail sector and markets, and had worked for the Manchester City Council.  At first, Mr Heald’s post was not mentioned in the restructuring document.  However, Unison was made aware of the proposals the following day.  Representations were made in a letter by a union official, Mrs Brown, that the restructure should affect the town centre’s job description, as it was inevitable he would have to take more responsibility to the management of markets.

The events leading to a dismissal
6.	On 27 February 2009, Mrs Meek held a meeting with the Claimant.  She was accompanied by Cath Burns, one of her team, who in practice had been the Claimant’s line manager, and Camilla Schofield from the HR Department.  At this meeting, Mrs Meek told the Claimant that the plan was to make his post redundant.  The Claimant alleged that she said “there’s nothing in it for you” or words to that effect.  Mrs Meek denied making the statement.  The Tribunal preferred the evidence of the Claimant.  The Claimant made this allegation in a letter of 24 March 2009.  Mrs Meek responded on 20 April 2009, but did not refute it.

7.	The Tribunal made findings of fact in paragraph 5, and throughout the whole body of its decision, which must have been hurtful for Mrs Meek.  They were unimpressed by her evidence.   They noted in response to nearly every question, she either could not remember or she said she was not involved with the process.  One of the few clear memories she said she had, was she had not made the remark in question about “there’s nothing in it for you”.

8.	They pointed out she stated in oral evidence that she had never been involved in trade union negotiations with the Claimant but, at paragraph 15 of her witness statement, she said she had worked with him in his capacity of Union Representative on many occasions.  The Claimant said, and the Tribunal accepted this, that Mrs Meek avoided him as much as possible, and he dealt mainly with Mrs Burns.

9.	The Tribunal were concerned that there were a number of occasions when the Appellant counsel could have called witnesses who are still employed by the council to corroborate Mrs Meek’s evidence.  They failed to do so.  They cite those instances.  The upshot is this.  The Tribunal note that the Claimant, together with a Mr Heald, were interviewed by a panel consisting of Mrs Meek, Cath Burns and Graeme Walmsley, on 28 May 2009.

10.	The Tribunal were concerned he was not, unlike Mr Heald, given time off to prepare a PowerPoint presentation.  He had assumed that as the meeting was scheduled to be in Mrs Meek’s office it did not have the facility for a PowerPoint presentation and only had a printout.  When he arrived, he was told the interview would be moved to another room with such facilities, and it was too late for him to project his presentation, though Mr Heald was able to.  Mr Heald, it seems, had been allowed to put his job application in late.

11.	No explanation was given that the scores for all members were not adduced, but only the documents completed by Mr Walmsley.  The Tribunal found, at paragraph 9, that there was a reasonable suspicion there was no discussion, as stated by Mrs Meek, who was unable to remember any details about the meeting or the discussion and it was Mr Walmsley’s scores alone that decided which candidate was to be appointed.

12.	The Tribunal then made this finding: that on the basis of the application forms which were in the bundle, it is likely Mr Heald would have been appointed because he did have superior qualifications and wider experience.  The Tribunal was severely critical that the Respondent had not been told of another job.  On the date he was told he was dismissed, it is clear from the Tribunal’s decision at paragraph 11, it was well-known there was another job of Market Co-ordinator.  The Tribunal said it was the employer’s duty to print out suitable, alternative information and should have mentioned this vacancy.  They had allowed Mr Heald, as they set out in paragraph 12, to apply for a post several grades below his existing one, and the Tribunal recognised that policies agreed with the union should generally be observed.  In terms employers have an overriding duty to act fairly and consistently, and he should have been given the opportunity to apply for the Market Co-ordinator post.  The council should not have assumed the Claimant would not have applied for a job with a lower salary.

13.	The Tribunal was critical of the appeals procedure.  It noted with concern that Councillor Walker was in the chair and was told certain things had not been mentioned, namely the Market Co-ordinator job nor the ill-health retirement, but both those matters were minuted as having been discussed.  They noted that Jane Meek had not been interviewed about the matter, and the appeal process was not sufficiently probing.  The Tribunal came to the conclusion the dismissal was both unfair, and also it was dismissal for the Claimant’s trade union activities.

14.	We have to say that we pay tribute to the integrity of Mr Byrne, the solicitor appearing for the Appellant.  One of the grounds of appeal was that the Tribunal had not distinguished between whether this was for a s.153 automatic dismissal, or a s.152.  Mr Byrne told us there was nothing argued by him about a comparator.  

15.	It would have been helpful if the Tribunal had in fact distinguished between s.153 and s.152 but this is really a matter of form because it is palpably obvious, looking at their decision, looking at what was argued before them, that they were making the finding that the Claimant was dismissed due to his trade union activities, and under s.152 rather than under s.153.

16.	Mr Carter has vigorously suggested that there was no basis for the Tribunal’s finding that the dismissal of the Claimant was due to trade union activities.  He has quoted a decision of mine in the case of Initial City Link v Turner [2007] UKEAT/0569/06/LA, in which I said that we were troubled that in drawing the inference that the dismissal was due to trade union activities, we consider the Tribunal did not investigate the circumstances of the treatment of other employees in the warehouse where the circumstances of the Claimant were sufficient to provide a firm enough foundation on which that inference can be drawn.

17.	Further on I say the fact that employees are treated unfairly may give rise to an inference that employees have been discriminated against by reason of trade union membership.  Had the Tribunal analysed the position in greater depth, then the Tribunal may have come to that conclusion, but there has to be a foundation.

18.	I make absolutely no apology at all for saying that the two members, both of whom have extensive knowledge from different sides of managerial practice in the public sector, are deeply concerned at what is revealed.  There are certain things that you can recognise, albeit that you cannot necessarily always define.  The industrial members of this Tribunal think it strikes them like treading on a rake with a blow to the head but that this was a decision that it was eminently within the Tribunal’s capacity to make.

19.	Looking through the decision, of the way in which the interviews were conducted, the fact that Mrs Meek was found to be an evasive witness, the fact the Tribunal accepted that she had made the remark “there’s nothing in it for you”, the fact of the poor record keeping, the fact that the Claimant was not offered the opportunity to be considered for the Market Co-ordinator’s position, the fact the appeal process was not sufficiently probing, and that Jane Meek should have been interviewed, grafted on to the Claimant’s work on behalf of another member, in which Jane Meek was a protagonist, the fact that the Claimant had caused problems for the management in connection with outsourcing the markets, was abundant evidence, in the view of all members of this Tribunal, for an inference to be drawn.

20.	The Tribunal had found the selection procedure of the Markets Manager was suspect.  It was concerned no HR representative was called as a witness, and the documentation without explanation was incomplete.  Tribunals, it used to be said, are industrial juries.  Every day of the week, jurors are directed that it is open for them to draw inferences, to come to common sense conclusions based on facts, that there is a difference between drawing an inference and speculating.  One is mere guessing.  The other is bringing to the knowledge of the world, and robust common sense, an inference from particular facts.

21.	I have referred the counsel in this case to a decision of Piglowska v Piglowski [1999] 1 WLR 1360 HL.  The immediate facts of that case need not concern us, because it was a concern about the division of a former matrimonial home.  In his speech, Lord Hoffman points out that the total value of the houses concerned was £127,000, and the legal costs, expended to decide how they are to be divided, was over that sum, namely £128,000 and likely to be over.  We need not be concerned with the facts of the case, but we have directed our attention to the view Lord Hoffman gives, that there must be caution in reversing a trial judge’s evaluation of the facts, and that is on much more solid grounds than professional courtesy.

22.	Specific findings of fact, even by the most meticulous judge are inherently an incomplete statement of impression, which was made on him by the primary evidence.  Express findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications of nuance, of which time and language do not permit exact expression, which may pay an important part in the judge’s overall evaluation.

23.	Judges, it is said, should be assumed to know what they are doing, unless it has been demonstrated to the contrary, and that there should be a real attempt by appellate courts to resist the temptation to subvert the principle, they shouldn’t substrate their own discretion, that of the trial judge, by a narrow textual analysis.  Further, that areas of discretion as to issues of whose evidence you accept, are based on judgements on which reasonable people may differ.  Appellate courts must be willing to admit a degree of pluralism, but overwhelmingly there should be a principle of proportionality between the amount at stake and the legal resources of the parties, and the community which is appropriate to spend on resolving this appeal.

24.	This is a Judgment in which there were three members.  The case took two days and it was promulgated with commendable speed by 21 September.  Despite the valiant efforts of Mr Carter, we are bound to say that we consider that what he has done, ably though he has done it (and none could have been more polite in his submissions to us) it to try and turn what essentially is an issue of fact for that Tribunal distilled into an area of law.

25.	In refusing in making a rule 3 declaration, HHJ Clark said this:

“Mrs Meek was found to be an unimpressive witness (para. 5); the Employment Tribunal was struck by the gaps in the Appellant’s evidence (para. 6); they found it suspicious that the Claimant was not considered for the Market Co-ordinator post (para. 15).  Taking their findings as a whole it was open to the Employment Tribunal to conclude, by inference, that the real reason for the dismissal was the Claimant’s trade union activities.  That conclusion cannot be characterised as perverse in the sense explained by Mummery LJ in Yeboah v Crofton [2002] IRLR 634”

26.	Having heard the arguments in this case, we agree and have little to add to that conclusion.  What happened in this case is that the Tribunal were perfectly within their rights to say we have not heard the real reason.  We have not heard relevant witnesses.  A Tribunal is entitled to be critical of witnesses.

Conclusion
27.	Managers obviously have a high degree of authority in the organisation in which they operate.  However, an Employment Tribunal must be free to reach its own view as to the credibility of witnesses: in this case the ET reached a conclusion which was clearly open to them.  We therefore dismiss the appeal.