Appeal No.	 EAT/394/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 November 2000

Before
HIS HONOUR JUDGE D M LEVY QC
LORD GLADWIN OF CLEE CBE JP
MR D J HODGKINS CB

MS VALERIE SHODEKE	APPELLANT

(1) MR D HILL (2) MR A DOUGLAS (3) MR H TINWORTH	
(4) LONDON BOROUGH OF HAVERING	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MISS S BIBI
(of Counsel)
Instructed by:
Messrs Stewart & Co
Solicitors
76 West Green Road
Tottenham 
London N15 5NS	

JUDGE D M LEVY QC

1	We have before us today a hearing ex-parte of the appeal by Ms Shodeke, (the Appellant)  against a number of Respondents, but primarily the London Borough of Havering, (“the Council”) resulting from a hearing which took place over 26 days before an Employment Tribunal sitting at Woburn Place (Stratford) on various days.  

2	The Applicant, throughout the hearing, was in person; the Council and 2 lay Respondents were represented by Mr Allen QC and Mr Keen; Mr D Hill, the First Respondent, (Mr Hill) one of the employees of the Council was represented by Ms Robertson of Counsel from 19 October onwards, that is all save for the first 4 days of the hearing.  

3	Essentially the Appellant failed in all of many applications, and was ordered to pay £150 costs to the First Respondent and £300 to the other Respondents, having regard to her failure to attend on time on 19 October, the 5th day of the hearing.  

4	At the very centre of the compendious Notice of Appeal are a number of allegations which could be summarised, that the hearing was biased or perceived to be unfair.  Ms Shodeke has been fortunate to be represented by Counsel today, and Counsel, Ms Bibi, has drawn to our attention something which may have gone amiss very early on in the hearing.  We take the position from page 35 of our bundle, paragraph 20 of the long extended reasons, which were sent to the parties on 24 January of this year; we extract only the essential at this point.
“There were a number of applications, during the hearing of these cases, and we consider it necessary to note those and to indicate what witnesses we heard.  On 11 October 1999 [the Appellant] applied for the cases to be adjourned until a date to be fixed in 2000, an application which Mr Allen QC and Mr Hill resisted. [the Appellant] said that she wished to obtain legal representation as her union had withdrawn two weeks before and she had been unable to obtain the services of a solicitor in the meantime. [The Appellant] further said that she needed to be at home on occasions when required, to care for her father who was recovering from a serious renal condition.  We were aware that [the Appellant] had recently made applications to adjourn these cases, which was schedule to last 34 days and all had been rejected.”  
Ms Bibi emphasised the sentence which follows:
“The last application before this hearing; it was made on 7 October 1999, and the grounds put forward on 11 October 1999 were not materially different from those put forward then.”

5	After reasons for refusing an adjournment, there is this sentence:-
[The Appellant] did not suggest that her father could not fend for himself and she indicated that if she was not in court she would be at work, albeit that her employers had agreed that she could on occasion leave to attend to her father at short notice.”

Various affidavits to deal with allegations of bias and unfairness, have been sworn for the purposes of this hearing.  In hers, sworn on 24 May 2000, the Appellant states:-
“My father’s serious illness, and the sudden and unexpected desertion of my legal representative, laid me low from the start.  In spite of this, I was refused an adjournment, and forced to carry on regardless in a case for which I had little opportunity to prepare.”

6	In the course of her submissions today, Ms Bibi has drawn to our attention a letter dated 7 October which, on instructions, she told us that the Appellant had faxed to the Employment Tribunal on that day, 7 October, and with it she enclosed various documents, including a medical certificate from her doctor which said:-
“She is unfit to appear for any hearing for immediate future”
We understand from what Ms Bibi has said to us that the Appellant says that that medical certificate was before the Tribunal on 11 October 1999, the first day of the hearing.  If that was so, when an application for an adjournment was made, it is surprising that no reference was made to it in the extended reasons. Allegations of bias and what happened thereafter may have to be read in the light of whether or not such a certificate was before the Tribunal, and if so, what weight, if any, was put on to it.  In such circumstances we think it desirable that before a panel decides whether the allegations of bias should go to a full hearing, further enquiries should be made, prior to a further preliminary hearing of the Appellant’s appeal.  

7	There should be further evidence put before another panel of this Tribunal. The Appellant must set out more fully in an affidavit her account of the material events which she says took place on 7 October 1999.  That should include what was said on her instructions by Counsel today namely that a medical certificate was before the Tribunal that day.  We would then wish to have the comments of the Chairman on that further affidavit.  Inevitably this would lead to a further delay for this preliminary hearing on the points of bias, but nonetheless it is so fundamental to the Appellant’s case that we would think it would be only fair that she should be given, at this stage an opportunity more fully to state her case.  We bear in mind that it is apparently only recently that she had the advantage of instructing Counsel and solicitors to assist her on an appeal which it would be difficult for an Appellant in person to conduct.  

8	So far as all the allegations which concern bias which are in the Notice of Appeal, and in the Skeleton Argument of Counsel for today, we are unable to say that they should go forward to a full hearing, however we are not able to say they should not.  

9	There are two grounds in the Skeleton Argument which are taken from the Notice of Appeal which we think we can properly deal with today, and those are alleged misdirections of law and we take this from paragraph 4 of Counsel’s Skeleton Argument, but the appropriate paragraphs, in the light of our judgment, in the Notice of Appeal will not be allowed to go to a full hearing.  The point which is made is that the Tribunal failed to consider all the relevant ingredients of the redundancy provisions under the Employment Rights Act before making a finding that the Appellant had been fairly dismissed by the Respondents, by reason of redundancy, and there is a reference to bundle, page 64 in the decision at paragraph 60 
“In particular, the Tribunal failed to consider whether:
(i) it was unfair for the Respondents to forgo consultation with the Appellant and/or her union representatives;
(ii) the alternative jobs offered by the Respondents were ‘suitable’ alternatives;
(iii) it was reasonable for the Appellant to turn down the jobs offered;
(iv) work of the kind the Appellant was undertaking had indeed ‘ceased or diminished or are expected to cease or diminish’ within the meaning of section 139 Employment Rights Act 1996”

10	We turn to the appropriate paragraphs of the decision which are at page 64 of our bundle, paragraphs 60 and 61.  Paragraph 60 reads:-

“60     The seventh issue goes to the real reason for the dismissal.  There was a reconstruction of the Social Services Department which affected the Children and Families Division as it did other Divisions.  We do not accept [the Appellant’s] submission that this change was brought about as a device to get rid of her.  This would be, if correct, an extremely elaborate and costly way to achieve that end.  In the reconstruction, [the Appellant’s] job and others simply disappeared and they were, in our decision, redundant as defined by section 139 Employment Rights Act 1996 in that the Authority no longer had a requirement for employees to carry out work of the particular kind that [the Appellant]  used to carry out.  It is our decision that the officers of the London Borough of Havering who were involved came to the conclusion that [the Appellant] should be dismissed as redundant, because she was in fact redundant and this decision had nothing to do with her colour or indeed anything else.  [The Appellant] was offered other positions but refused them and, in those circumstances, there was no real alternative way in which the Authority could have gone.  In short, we hold that redundancy was the real reason for [the Appellant’s] dismissal.

61     The eight issue goes to fairness and we here bear in mind the words of section 98(4) Employment Rights Act 1996.  We have looked at the back-drop to [the Appellant’s] dismissal, her attitude to her managers during the redeployment process, the line taken by her trade union representative and the attempts by the London Borough of Havering to find a role for her. [the Appellant] criticised the offers that were made to her, but if she had accepted one of them there is no reason for us to believe that the offer would not have been honoured.  Some of the offers may have been below [the Appellant] in one sense or another, but we accept the evidence that these were the jobs available at the time.  [the Appellant] complains that other jobs became available later,  but they were short term positions,  they were mentioned  on        e mails that [the Appellant] would have seen and, as the Authority pointed out [the Appellant] could have applied for any of them, but did not.  Furthermore, [the Appellant] had stated that she only wanted a job in the Children and Families Division and that at a senior status.  The London Borough of Havering, as it should have done, consulted with [the Appellant] over a period of time, made efforts to re-deploy her and eventually time ran out.  We should add that, if [the Appellant] had taken one of the lower grade positions, she would have maintained for a protected period of at least three years her old grade and salary.  Furthermore when [the Appellant] wanted an extension of time to stay with the Authority so that she could give evidence to the investigators dealing with the M case, this was granted and her time was extended to the end of January 1998.  These appear to us to be examples of a fair employer in operation rather than the reverse.  Accordingly, taking into account all the matters set out in section 98(4) Employment Rights Act 1996, we conclude that this was not an unfair dismissal.”

11	In our judgment the redundancy issue was fully and properly dealt with in those two paragraphs.  In the course of today, we have looked at the two letters which were shown to us, one of them dated 3 June 1997 and another dated 24 September 1997 which deal with the negotiation between the Appellant and the Head of Community Care Services in the one case, and the Director of Social Services in another case, and we are satisfied that the Council took all appropriate steps to find and offer to the Appellant other work that was available, particularly taking account of the fact that she would have maintained, for a protective period of at least three years, her then grade and salary.  There is nothing, in our judgment, of which the Appellant can properly complain in the finding that redundancy was the real reason for her dismissal or that there was anything unfair about that.  We will therefore not allow that issue to go to a full hearing.

12	It was also submitted that the Tribunal had failed to consider in their decision whether the Respondents had complied with section 71 of the Race Relations Act 1976.  Where there has been a hearing over 26 days and there is a judgment which goes on for 35 pages it cannot be expected that every ‘t’ will be crossed and every ‘i’ will be dotted.  However it is quite clear to each of us reading the decision in full, that the Tribunal had well in mind the section which is mentioned by Ms Bibi in her Skeleton Argument and we can see no reason for that ground to be further pursued in appeal.  It is not necessary for there to be a specific mention of the section for an appellate Tribunal to be satisfied that the Employment Tribunal had a basic section such as this well in mind.  

13	In summary, therefore we will dismiss the appeal on the grounds of these two points.  We will leave it at large to another Tribunal, sitting ex-parte, to deal with the allegation of bias after the further evidence has been lodged. We will also leave to that Tribunal to consider whether a small issue as to costs of one day should go to a full hearing.  

14	Documents material to the further hearing of the appeal should be exhibited by the Appellant to her Affidavit.  We would thank Ms Bibi for her submissions.  We will return to her the documents we have looked at in the course of the hearing. 

15	We think it would be of assistance, now that there is Counsel on the scene, if before the further hearing, the Notice of Appeal which now runs to some 6 pages is carefully looked at to see whether there can be a grouping of the grounds of appeal which would make it easier for the advocate to address the Tribunal, and easier for the Tribunal to hear her submissions.