Appeal No. UKEAT/0564/06/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 March 2007

Before
HIS HONOUR JUDGE BIRTLES
DR S R CORBY
MS N SUTCLIFFE

CAMBRIDGE HOUSING SOCIETY	APPELLANT

MRS J ANWAR	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Ms S Jolly
(of Counsel)
Instructed by:
Maclay Murray & Spens Solicitors
1 London Wall
London
EC2Y 5AB	
For the Respondent	Mrs J Anwar
(The Respondent in Person)

Mrs A Davison
(a friend)	

SUMMARY
Unfair dismissal – Reasonableness for including substantial other reason / Reasonableness for dismissal
4 grounds of appeal challenging reasonableness of Employment Tribunal decision allowing a claim for unfair dismissal.  All 4 grounds held to be the questions of fact open to Employment Tribunal on the evidence.  Appeal dismissed.  No error of law.

HIS HONOUR JUDGE BIRTLES

Introduction
1.	This is the full hearing of an appeal by the Cambridge Housing Society Ltd from the judgment of an Employment Tribunal sitting in Bury St Edmunds on 16 June 2006 and 24 August 2006.  The Chairman was Mr J Goodrich and the members were Mr A Shaw and Mr R Thompson.  The Employment Tribunal decided that the Claimant Mrs Janet Anwar was unfairly dismissed.  A remedies hearing was to take place at a later date.  Before us today the Appellant has been represented by Ms Jolly of Counsel and the Respondent Mrs Anwar has represented herself supported by her friend Mrs Davison.  

The Employment Tribunal Judgment Part 1: summary of issues 
2.	The respective cases of the parties are conveniently summarised in paragraphs 2 and 3 of the Employment Tribunal judgment: appeal bundle pages 1 and 2:

“2.	The Claimant presented her claim to the Tribunal on 15 September 2005.  Her complaint was that she had been unfairly dismissed because she was asked to accept a change to her terms and conditions of employment which was very detrimental to her. 
3.	The Respondent entered a Response denying that the Claimant had been unfairly dismissed.  They contended that the Claimant had been dismissed because she refused to accept essential changes to her terms and conditions of employment following an extended period of consultation and that this dismissal was for some other substantial reason so as to justify the dismissal.  In addition, they contended that if the Tribunal was to determine that the dismissal was unfair, compensation should be reduced to nothing as she was offered alternative employment after termination of her employment and acted unreasonably in refusing it.”

The Employment Tribunal Judgment Part 2: the material facts
3.	The Employment Tribunal found a series of facts which are set out in its judgment at paragraphs 13-43.  Those finding of fact are incorporated into this judgment.  Put very shortly the Respondent/Claimant had worked for the Appellant from 9 November 1998 until she was dismissed by her employers, the effective date of termination being 30 June 2005.  She worked as a night nurse at Langdon House which is a care home looking after elderly people.  English was not her first language.  She had been given assistance by the Appellant in improving her English and indeed obtaining her NVQ Care Level 2 qualification.  

4.	In 2003 the Appellant engaged consultants to carry out a review of the structure of terms and conditions of those working in its four care homes.  As a result of that review a number of changes in terms and conditions of employment were proposed and following decisions by the Appellant’s board of trustees the Appellant commenced consultation with the work force affected by those changes.  The substance of the changes was that there was to be a new organisation structure, revised pay rates, an interim amendment to sickness policy, a revised policy on rest breaks, the introduction of monthly pay, the introduction of corporate uniforms for care staff, the introduction of a stop and search policy for all employees, a one-off additional days paid leave for all employees on completion of the first ten years of service and every five years thereafter and for these changes to be implemented.  

5.	There was no recognised trade union.  The consultation took the form of a series of meetings to which any employee could attend and an invitation to put comments in writing together with a number of letters to all the employees concerned.  The Tribunal found that the meetings were held in the day time.  The Claimant attended one such group consultation in November 2004.  Having attended that meeting the Respondent then initiated the Appellant’s grievance procedure.  The details are set out in the findings of fact.  There were various stages of that procedure including an appeal and a final appeal which took place on 15 June 2005.  At that appeal hearing the Claimant’s representatives asked that her protected pay be made up to June 2006 and that the Claimant would accept changes on that basis though a number of further points made going through the Claimant’s various concerns.  

6.	The Tribunal expressly found at paragraph 43 of its decision this:

“At no stage of the consultation process however did the Respondent analyse the Claimant’s complaint that her actual pay would be reduced by 10% if the changes were put into place.  The Respondent’s calculations were based on contractual rates of pay only not her actual pay at that time.  Even at this hearing the Respondent’s witnesses did not know how much worse off the Claimant would have been in comparison to her actual pay leading up to the time the changes were imposed.”

The outcome of that final appeal was sent to the Claimant in a letter dated 20 June 2005.  In that letter the Claimant was informed that she would be offered contractual earnings protection until 31 December 2005 subject to her acceptance to the revised terms and conditions.  The offer was not accepted by the Claimant and her dismissal took effect on 30 June 2005.  

The Employment Tribunal Judgment Conclusions
7.	These are set out in paragraphs 46-60 of the Employment Tribunal’s decision.  They are incorporated into this judgment. 

The Notice of Appeal
8.	The Notice of Appeal raises four separate grounds of appeal.  They were argued in a slightly different order from the Notice of Appeal itself but we will deal with them in the way in which they are set out in the Notice of Appeal. 

Ground 1
Paragraph 6.1 of the Notice of Appeal
9.	The Employment Tribunal misdirected itself in law and fact when concluding that no fair consultation had taken place.  This reference is to paragraphs 55 and 56 of the Employment Tribunal decision where it said this:

“55.	One crucial aspect of the Claimant’s complaint – her main complaint – that was never addressed, however, was to explore her assertion that she would be 10% worse off at her current rate of pay.  The Respondent’s communications were based on the contractual position alone and, although this was important, it was a major concern to the Claimant how the proposals would work out in practice on her pay.  Even by the time of this Tribunal Hearing, the Respondent did not know whether or not her assertion that she would be 10% worse off was correct or not, nor did they explore that complaint with her.
56.	A reasonable employer of the Respondent’s size and resources, acting within the range of reasonable responses, would have explored the issue with the Claimant thoroughly, particularly as she was a longstanding and valued member of staff; and would have explored exactly how much she would be losing and made clear to her that they were giving serious consideration to this particular difficulty.  Fair procedures involved taking account of this vital aspect of the Claimant’s complaints.  In order for consultation to be meaningful and adequate a reasonable employer would explore what was a serious and justified complaint on the part of an employee.”

The Notice of Appeal in effect asserts that the process which was carried out in this case was as a matter of fact a fair and lengthy consultation process and as a result the Tribunal has reached a conclusion which on the facts before it could not have reached, but in particular focused far to much on the, what I think Mrs Jolly referred to as the magic words, 10% loss.  

10.	We begin by reminding ourselves of a useful definition of consultation albeit in the context of consultation between an employer and a trade union which is in the judgment of Glidewell LJ in the case of British Coal Corporation v Secretary of State for Trade and Industry ex parte Price and Others [1994] IRLR 72.  At paragraph 24 Glidewell LJ said this:

“I would respectfully adopt the test proposed by Hodgeson J in Queen v Gwent County Council x-Parte Briant reported, as far as I know, only at [1988] Crown Office Digest page 19 when he said:
“Fair consultation means (a) consultation when the proposals are still at a formative stage,   (b) adequate information on which to respond, (c) adequate timing which to respond,     (d) conscientious consideration of an authority of the response to consultation.”
Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted and to express its views on those subjects with a consult or thereafter considering those views properly and genuinely.”  

11.	In its fact finding exercise the Employment Tribunal clearly distinguished between the individual consultation with the Respondent/Claimant and her operation of the Appellant’s grievance procedure: see paragraphs 55 and 56 of its judgment.  We can deal with this ground of appeal on this basis, that on the evidence before it the Employment Tribunal was entitled to come to the conclusion it did.  The fact that a different Employment Tribunal might have come to a different conclusion does not amount to an error of law.  The Employment Tribunal heard and saw the relevant witnesses and it was from that evidence before it that it reached the conclusions that it did in paragraphs 55 and 56 of its judgment.

Ground 2
Paragraph 6.2 of the Notice of Appeal 
12.	The Tribunal took into account irrelevant considerations when reaching its decision that the dismissal was unfair and as such allowed those considerations to influence or infect its entire judgment in an impermissible manner.  In particular since there was no evidence at all upon which to support such findings of fact/conclusions.  Ms Jolly in her oral submissions effectively relied on two matters.  The first was a reference to religious discrimination: see paragraph 62 of the Employment Tribunal’s decision where it said this:

“Lastly in case it may be of assistance to the Respondent for future consideration we draw attention to the Claimant’s complaint that the proposed changes had a greater adverse affect on her because she was a Muslim.  The Claimant has not brought a religious discrimination complaint and we offer no opinion of whether or not the changes had an indirectly discriminatory effect.  When however an employee complains that the proposed changes to terms of employment would have had an indirectly discriminatory effect, it is important for an employer in order to act fairly to consider and analyse whether such proposals do in fact have such an affect.  We did not hear evidence that the Respondent gave the issue such consideration and analysis.”  

It is important to note that paragraph 62 follows obviously paragraphs 60 and 61.  Paragraph 60 reaches the unanimous judgment of the Tribunal that the Claimant was unfairly dismissed for the reasons set out before.  In other words a line is then drawn at that stage.  Paragraph 61 deals with the setting up of a remedies hearing.  The reference in paragraph 62 seems to us to be crystal clear: it has nothing to do with what has gone before and as its first words show, it is an attempt by the Tribunal to give some guidance to the employer in the future.  The critical words to us seem to be “lastly in case it may be of assistance to the Respondent for future consideration”.  We are not persuaded by Ms Jolly’s submission that somehow this is an irrelevant consideration which has infected the earlier part of the Employment Tribunal’s judgment.  

13.	The second matter mentioned by Ms Jolly referred to paragraphs 26 and 52 of the Employment Tribunal’s decision.  They referred to the question of the consultation meetings.  Paragraph 26 says this:

“26.	The meetings were held during the day-time.  It was more inconvenient for night-time staff to attend these meetings than day-time staff.  Nevertheless, the Claimant attended one such group consultation meeting in November 2004.”

Paragraph 52 says this:

“52.	No particular account was taken to address particular attention to the disadvantaged group.  That is those working at night as Mrs Anwar was.  Apart from an individual (as opposed to a group) meeting in February 2005, the responsibility for arranging individual meetings was with the Claimant through raising her grievance and her appeals.  It might have been helpful for the Respondent to have given particular attention to those adversely affected in order to ensure that the nature of their concerns could be drawn out as soon as possible.”

It seems to us that this is a perfectly legitimate point for the Employment Tribunal to raise.  It is not an irrelevant consideration and indeed paragraph 52 makes clear that the Appellant thought once the Claimant had raised a grievance that that was in some way a substitute for an individual consultation process.  We are not persuaded by Ms Jolly’s submissions that either of these matters infected the Employment Tribunal decision.

Ground 3
Paragraph 6.3 of the Notice of the Appeal
14.	The Tribunal misdirected itself in law and in fact at paragraph 58 of its decision in concluding that section 98A(2) of the Employment Rights Act 1996 did not apply to this case.  Paragraphs 57 and 58 of the Employment Tribunal say this:

“57.	We have gone on to consider section 98A(2) of the Employment Rights Act 1996.  If the Respondent had followed fair procedures would the Claimant have been dismissed anyway?
58.	This is a finely balanced issue and it is always difficult for Tribunals to explore hypothetical issues.  It is possible that, if the issue had been properly and fully considered, the outcome would have been the same.  It is also possible that some different outcome would have occurred that would to have led to the dismissal of the Claimant.  Further exploration would have taken place, as we have indicated above.  The Claimant’s union representative expressed willingness, when attending appeals on the Claimant’s behalf, to sign up to the new terms of pay if protection was extended to 30 June 2006.  The Claimant was not therefore completely rigid in her stance.  We conclude, therefore, that section 98A(2) does not apply but we instead reduce the Claimant’s award by 50% to take account of the possibility that if fair procedures were adopted the Claimant would have been dismissed in any event.”

Ms Jolly’s submission on this seems to us really to be twofold.  First, in terms of the language in which the Employment Tribunal expressed itself in paragraph 58 the use of the word “possible” rather than a sentence which said, “We find it more probable than not that the Claimant would not have been dismissed in any event or would have been dismissed in any event”.  

15.	Second, if one looks at the relevant pages of the notes of the hearing taken by a trainee solicitor and Ms Jolly, Mrs Anwar herself did not necessarily agree that her representative had made that concession or indeed if he had that she necessarily agreed with it.  We take account of the fact that as the Tribunal clearly found that the Appellant knew English is not easy for Mrs Anwar and we are not prepared to rely upon a single line in a transcript or note of the evidence as a finding enabling Ms Jolly to found this submission.  

16.	We go back to the words of paragraph 58.  It might have been better expressed but it is not the function of this Tribunal to comb through the judgment of an Employment Tribunal line by line and to deal with issues of semantics.  In our judgment, what the Tribunal is saying in paragraph 57 and 58 is clear.  Paragraph 57 states the question: “If the Respondent had followed a fair procedure would the Claimant have been dismissed anyway?”.  Paragraph 58 answers that question.  The Tribunal quite rightly points out that this is a finely balanced issue in this case and it is difficult sometimes for Tribunal’s to deal with the question under section 98A(2) of the 1996 Act.  But of course they are enjoined by law to do so.  

17.	The Tribunal then sets out the two possibilities.  It indicates that further exploration would have taken place if there had been further consultation.  It refers to Mr Smith the trade unions representative’s willingness to make a concession and the Tribunal conclude in the last sentence that section 98A(2) did not apply.  They did however make a 50% reduction.  Although as we say paragraph 58 could have been better expressed, we are not persuaded by Ms Jolly that the Tribunal made an error of law.  We also should refer to a perversity argument.  We have in mind the very high standard set by the Court of Appeal: see Yeboah v Crofton [2002] IRLR 634 and in particular the judgment of Mummery LJ at paragraphs 92 to 95.  The standard for an Appellant to meet to persuade us that a part of a judgment or the judgment of an Employment Tribunal is perverse is a very high one.  It has not been met in this case. 

Ground 4
Paragraph 6.4 of the Notice of Appeal
18.	The Tribunal’s decision at paragraph 59 that the Claimant was not unreasonable in refusing an offer of re-employment was an error of law and/or perverse since no reasonable Tribunal properly directing itself on law on the evidence before it could have reached that conclusion.  Paragraph 59 of the Employment Tribunal says this:

“59.	We have gone on to consider the Respondent’s subsidiary argument.  Was the Claimant unreasonably refusing an offer of re-employment?  We have concluded that she was not.  It was a substantial reduction to her pay and was one of the main points of her complaint.  Her complaint was inadequately explored by the Respondent.”

That is succinct.  The Tribunal heard evidence and submissions over 2 days.  It heard from the Respondent’s representatives.  It heard from Mrs Anwar.  In our judgment the short answer to this ground of appeal is that there was factual material upon which the Employment Tribunal could reach its conclusion that Mrs Anwar did not unreasonably refuse the offer of re-employment.  We are not persuaded by paragraphs 6.4a to c of the skeleton argument or what was said to us in oral submissions by Ms Jolly.  With the respect of her it amounts to an attempt to re-run an argument that failed before the Employment Tribunal.  It also fails before us.

Conclusion
19.	For these reasons the appeal is dismissed.