Appeal No. UKEAT/0328/15/DM

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

	At the Tribunal
	On 19 February 2016

Before
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
(SITTING ALONE)

LINCOLNSHIRE COUNTY COUNCIL	APPELLANT

MISS N LUPTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR ANDREW SUGARMAN
(of Counsel)
Instructed by:
Legal Services Lincolnshire
49-51 Newland
Lincoln
Lincolnshire
LN1 1YL

For the Respondent	MISS NICOLA LUPTON
(The Respondent in Person)	

SUMMARY
UNFAIR DISMISSAL - Reinstatement/re-engagement

1.	In making a re-engagement Order the Employment Tribunal erred by failing to specify the nature of the employment within section 115(2)(b) and by failing to address practicability of re-engagement, particularly having regard to the Claimant’s own evidence.

2.	The question of re-engagement would be remitted to the same Tribunal accordingly.

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

1.	Lincolnshire County Council, the Appellant, challenges an Order for re-engagement made by Employment Judge Moore at a Remedies Hearing on 8 June 2015 as reflected by a Judgment with Reasons promulgated on 5 August 2015.  There is also a challenge to a costs award made at that Remedy Hearing.  The appeal is advanced on the Council’s behalf by Mr Sugarman of counsel, who did not appear below and who has made cogent submissions supported by a helpful skeleton argument.  The appeal is resisted by Miss Lupton, who appears in person.  She has been measured and moderate in her submissions, seeking to support the Tribunal’s Decision.

Background
2.	The facts in brief are as follows.  Miss Lupton, the Claimant below, was employed as a Support Worker at Earlsfield Youth Centre in Grantham from 14 July 2010 until her dismissal.  The dismissal was found to be both procedurally and substantively unfair.  In her employment with the Council she worked 18½ hours a week from Tuesday to Thursday: between 8.30am and 3.15pm on Tuesdays and Thursdays and until 3.00pm on Wednesdays.  In June 2012 she became a foster carer, which meant that she could no longer work during school holidays or outside school hours.  That was accommodated by the Council by allowing unpaid leave or affording her time off in lieu.  In 2014 the Council required the Claimant to change her working hours, and when that was refused she was dismissed.

3.	At the substantive hearing the Employment Tribunal found that there was no sound business reason for the change in hours required, that the Council had acted arbitrarily, that the process adopted by the Council in seeking to enforce the change had been unfair and that the Council had failed to consider alternatives to dismissing her.  At paragraph 48 of the Liability Judgment the Tribunal identified two vacancies that might have been suitable alternative employment at that time.  The Tribunal made a 20 per cent reduction under Polkey v A E Dayton Services Ltd [1987] IRLR 503 to reflect the chance of a fair dismissal in any event, even if a fair procedure had been adopted, and in reaching that conclusion the Tribunal referred to the Claimant’s requirement to work term-time only as problematic and potentially challenging to accommodate but concluded in light of the Claimant’s evidence that she was seeking support for her foster care responsibilities that might enable her to work during the school holidays as well.  The Tribunal concluded that a 20 per cent reduction reflected the chance of the Claimant securing alternative employment that was suitable to her needs and arranging alternative care for her foster child.

4.	In her ET1 the Claimant ticked the box claiming reinstatement but not re-engagement.  She provided two witness statements for the Remedy Hearing.  The first, a short statement dated 8 May 2015, said that her terms of reference for her job search were very narrow due to her circumstances, that she had been searching for term-time flexible positions in and around the Grantham area in order for her to continue to support her foster daughter and that that meant that there were very few roles for which she was able to apply.  She identified two jobs she had been considered for, albeit the organisations had said that they could not accommodate her limited flexibility in terms of hours.  Other roles she had applied for had not proved fruitful.

5.	In a longer second witness statement dated 3 June 2015, under the heading “Reinstatement/Re-engagement” the Claimant makes clear the difficult position in which she had been placed as a consequence of her dismissal and why she felt she had no choice but to ask for her job back.  She explained that the responsibilities in relation to her foster child required her to have flexible working and that in order to have the right to request flexible working she would have to work for at least six months in a job.  That had proved impossible since her dismissal, and that was why she wished to return to work for the Council.  She said at paragraph 3.4 that she had been sent a list of live vacancies throughout the county by the Council.  This is a list provided to her in April or May 2015 - in a context to which I shall return in a moment - and in relation to the 76 positions identified, she explains that she was not qualified for 59 as she is not a qualified Teacher or Social Worker.  Of the 17 remaining, only three were in the Grantham area, the rest being for posts in Lincoln, Gainsborough and Boston, which was too far for her in terms of travelling commitments.  Of the three remaining vacancies, one was a full-time permanent post with the youth offending team, another a 30-hour per week post as a Registration Officer, and the last one a Catering Assistant working every day to supervise school meals.  She does not expressly indicate a desire for re-engagement into those posts, although her general desire for re-engagement is clearly expressed in her witness statement.

6.	The Claimant did however, make clear at the Remedy Hearing that despite all the difficulties she had in relation to the Council, none of which were of her own making, she did wish to be reinstated to her old job at the Earlsfield Centre or to be considered for re-engagement in one of the two posts that had been vacant at the time of her dismissal, namely the Employability Co-ordinator and Work Experience Co-ordinator posts, both at the Earlsfield Centre.

The Remedy Judgment
7.	The Remedy Judgment sets out the relevant statutory provisions and summarises the principles of law that are applicable to questions of reinstatement and re-engagement.  No criticism is made of the approach identified.  Rather, the Council submits that the Tribunal erred in its application of the law to the facts and in its approach to the evidence.

8.	The Tribunal made its findings by reference to the evidence it heard from Mrs Fran Fletcher for the Council and Miss Lupton and her father.  Of significance are the following; 
(i)	The Employment Tribunal found that both of the alternative roles referred to by the Claimant were 37-hour per week roles, though no consideration had specifically been given to the possibility of performing those roles on a part-time or job-share basis.  
(ii)	At paragraph 27 the Tribunal said:
“27. … The Claimant’s search for work has been restricted by the need to adhere to her foster daughter’s care plan.  As such she is only able to work within school hours and requires a term time only contract.  Further, the hours must be such that she must be able to commute to and from work within school hours and therefore has been searching for work in the Grantham locality.”
(iii)	At paragraph 31 the Tribunal recorded the fact that the Claimant sought reinstatement to her former position because it satisfied a number of quite specific limitations on her as a result of her foster care responsibilities and would accommodate term-time only working in the Grantham area, which was necessary.  She felt she had no alternative but to enter “this lion’s den”.  At paragraph 32 the Tribunal referred to the list of vacancies (identifying 78 rather than 76) which the Claimant referred to at paragraph 3.4 of her second witness statement, saying most had closing dates that had passed by the time of the hearing.  Nonetheless, the vacancy list showed a substantial number of vacancies, many of which are school-based and term-time only.  However the Tribunal made no reference to the evidence the Claimant had given at paragraph 3.4 about the unsuitability of the vast majority of those posts. 
(iv)	The Tribunal concluded that reinstatement was not practicable because of the irretrievable breakdown in the relationship between the Claimant, Mrs Fletcher and Ms Poll.  Those conclusions are at paragraphs 47 and 48, and there is no challenge to them.  This meant that re-engagement to the roles at the Earlsfield Centre was also not practicable.

9.	As for re-engagement on a wider basis, the Employment Judge said:
“49. Re-engagement.
The Respondent’s submissions did not address the issue of re-engagement or why that would not be practicable.  The Respondent is one of the largest employers in the area.  There were 78 vacancies available in April/May 2015 (the Respondent did not adduce up to date evidence of vacancies that were available at the time of the actual hearing).  Many were based in schools that could satisfy the need for the Claimant to work term time only.  Re-engagement would negate the need for the Claimant and Mrs Fletcher and Ms Poll to work together again and therefore those relationships are not relevant.  There were no submissions or evidence by the Respondent, as in the Oasis Community Learning [v Wolff UKEAT/0364/12] case that the relationship with the local authority as a whole had broken down.”

10.	At paragraph 50 the Employment Judge said, “I therefore make an Order for Re-engagement in the terms set out in the Judgment above”.  The terms of the Order made are set out at paragraph 1 of the Remedy Judgment, and, so far as material the Order reads:
“1. The Respondent is ordered to re-engage the Claimant with effect from 13 July 2015:-
a. The terms on which re-engagement is to take place are as follows:
b. The identity of the employer is Lincolnshire County Council.
…”

11.	The terms as to remuneration and arrears of pay and arrangements to restore contributions to pension and deal with career and salary progression are dealt with, and the Order expresses that it must be complied with by 7 August 2015.  So far as the nature of the employment is concerned, this is dealt with at paragraph 1c as follows:
“c. The nature of the employment is a term time only contract with part time hours of 18.5 per week which are to be within school hours in the locality of Grantham.  The employment is to suitable in regard to the Claimant’s background and experience comparable to that from which she was dismissed or other suitable employment.”

12.	Against that Judgment and Order three grounds of appeal are advanced on behalf of the Council by Mr Sugarman.  I deal with them in turn.
The Appeal
13.	Ground 1 is a composite ground which argues that there was an error of law by misapplying or failing to have proper regard to section 116(3)(a) of the Employment Rights Act 1996 (“ERA”) and/or by failing to have regard to a relevant consideration, namely the Claimant’s stated preference as to the nature of the Order to be made and/or by failing to provide adequate reasons for the Judgment.

14.	Here, the Council relies on the fact that the Claimant did not seek re-engagement on the wider basis and having indicated her preference and desire for reinstatement or re-engagement to the two roles at the Earlsfield Centre it was not open to the Tribunal to have regard to re-engagement on a wider basis.  It is said that the terms of section 116 are mandatory because of the words used in subsection (3) that the Tribunal “shall” take into account any wish expressed by the complainant as to the nature of the Order to be made, and, insofar as reliance is placed on the vacancy list, Mr Sugarman submits that the list was disclosed to allow the Claimant to consider and comment on it, as she did.  She did not however identify any particular job for which she wished to be considered.  Mr Sugarman argues that if a specific job or type of job had been identified by reference to that list, the Council could have responded to it and if appropriate could have led evidence as to which schools were in Council control, as to the degree of flexibility in relation to hours and term-time working and as to the qualifications required for the particular role.  That was not done because not only did the Claimant not express a wish to be re-engaged into any of those roles, but the matter was not canvassed with the Council by the Tribunal.  He submits that was an error of law and procedurally unfair.

15.	Against that Miss Lupton agrees that her stated preference was for reinstatement, although she also sought re-engagement to the two specific posts, and she was unable to identify anything in writing to suggest that she identified any other specific posts in the vacancy list that she was prepared to do.  Nevertheless, she made clear that her wish, given her circumstances and her particularly limited working hours and arrangements by virtue of her foster care commitments, was to return to work at the Council with continuity preserved.

16.	Although I am not persuaded that the Tribunal erred in law by reference to section 116(3)(a), because, in my judgment, the Tribunal did take into account the wish expressed by the Claimant as to the nature of the Order to be made, I am concerned that there may have been procedural unfairness in the approach adopted by the Tribunal to this issue.  Given that the Claimant had not identified a specific job in the vacancy list and given her evidence at paragraph 3.4, it was incumbent on the Tribunal if re-engagement on a wider basis was to be considered, to raise that expressly with the Council to enable the Council to address the point and make relevant submissions if so advised.  Had the Council known that the Tribunal was minded to make a more generic Order it would have had material to advance, as suggested by Mr Sugarman.  It could have identified for the Tribunal those jobs that were in schools which were not within the Council’s remit and jurisdiction, and those jobs where there was or was not any possibility of flexible working.

17.	Accordingly, although I am not persuaded that the error lay in a failure to have regard to the wishes expressed by the Claimant in relation to this Order, I am satisfied that it was procedurally unfair, for the reasons just given.

18.	Ground 2 contends that there was an error of law in the Order made because of a failure to have regard to relevant considerations and a perverse conclusion reached in relation to practicability.  The statute and the guidance in the authorities require a broad, commonsense approach to the question of practicability.  “Practicable” in this context means more than merely possible but “capable of being carried into effect with success” (see Coleman and Anor v Magnet Joinery Ltd [1975] ICR 46 at page 52).  Re-engagement is not to be used as a means of imposing a duty to search for and find a generally suitable place within the ranks for a dismissed employee irrespective of actual vacancies.  That, as the Council contends, puts the duty too high.  An employer does not necessarily have a duty to create space for a dismissed employee to be re-engaged.  The question at the end of the day is one of fact and degree by reference to what is capable of being carried into effect with success.  Since these are questions of fact and degree for a Tribunal, provided there is no error of law or principle and the conclusion is not perverse, this Appeal Tribunal will not interfere with a Tribunal’s findings.

19.	Practicability was an important factor for the Tribunal to consider when it came to address the wider approach to re-engagement.  However, because the Council did not address practicability in relation to wider re-engagement, it seems to me that the Tribunal limited its consideration of this issue, first to the fact that the Council is one of the largest employers in the area, and secondly, to the fact that many of the roles identified on the list were based in schools that could satisfy the need for the Claimant to work term-time only.  The question of practicability is, as Mr Sugarman submits, a mandatory consideration.  There is no statutory presumption that an employer is required to displace.  

20.	As the Council contends, there was material available in the Claimant’s own witness statements that significantly limited the practicability of re-engagement on the wider basis.  Indeed, on the face of the list, none of the jobs were suitable for her; 59 were roles that she was unqualified to perform and the remainder apart from three were located outside Grantham, with the three within Grantham being full-time posts.  That did not necessarily make those jobs impracticable, but on the face of the list, unless changes were made in terms of part-time working or job-sharing, they were not necessarily practicable at that time and no attempt was made to establish that they were.  Since practicable means more than merely possible but capable of being carried into effect with success, it seems to me that the Tribunal’s approach as revealed by paragraph 49 was flawed.  There was a failure to address relevant considerations and a failure to take into account evidence that was available to the Tribunal, and that meant that practicability was not established.

21.	Finally, in relation to re-engagement, ground 3 contends that the Tribunal erred in law by failing properly to comply with or consider section 115(2)(b) of the ERA when making the re-engagement Order.  Here, the Council contends that the Tribunal erred in failing to identify the nature of the employment to which the Claimant was to be re-engaged with any degree of detail and precision.  The statute expressly requires the Tribunal to specify the nature of the employment.  That is mandatory and failure to comply with that requirement is an error of law.  The Order made required re-engagement into employment that was:
“… suitable in regard to the Claimant’s background and experience comparable to that from which she was dismissed or other suitable employment.” 

22.	Although Tribunals have a wide discretion as to the terms of an Order for re-engagement, those terms must be specified with a degree of detail and precision.  I accept the Council’s argument that this Order did not satisfy those requirements.  On any view, the vacancy list included a wide variety of roles not limited to Support Worker roles.  Of the three roles in Grantham most relevant to the Claimant, one was a role within the youth offending team, one was a role as a Registration Officer, and the third a Catering Assistant role.  To require simply that the employment must be comparable is not adequate to identify specifically and with precision into what role the Council is ordered to re-engage the Claimant.
23.	For these reasons, both individually and cumulatively, it seems to me that the re-engagement Order made by the Tribunal cannot stand.

The Costs Appeal
24.	So far as the costs appeal is concerned, the Tribunal concluded that it was appropriate to make an Order for costs against the Council on the basis of unreasonable conduct.  The Order made was for £504, and I make it clear at this stage that no issue is taken as to the nature of that expenditure by the Claimant or as to whether she did in fact incur it.  Those matters are accepted.  The Tribunal dealt with the question of unreasonable conduct at paragraphs 62 and 63 as follows:
“62. The Claimant has been consistent in expressing her wish to be reinstated.  It was specified on the ET1 at the outset of the proceedings.  The Claimant confirmed this remained the position after Judgment on liability had been given in the course of the Tribunal explaining what orders could be made under S112 ERA 1996.  After the liability hearing the Claimant incurred legal costs between the liability hearing and the remedy hearing.  Prior to any decision from the Tribunal, Debbie Barnes, Executive Director for People Management for the Respondent, pre-empted the decision of the Tribunal on reinstatement, describing it (by her own admission) as “out of the question”.  In my view this amounts to unreasonable conduct in the way the proceedings have been conducted.
63. Having decided there has been unreasonable conduct, I have decided it is appropriate to make the costs order for the Claimant’s legal costs incurred in the sum of £504.00 under Rule 75 (1) (a) as they were incurred as a direct result of the Respondent’s clear and express indication to disregard a potential Order of this Tribunal. …”

25.	The circumstances in which Ms Barnes came to make the comment that is referred to as a partial quote by the Tribunal are these.  There was a telephone call between Ms Barnes and Mr Lupton, the Claimant’s father, between the Liability Judgment and the Remedy Hearing.  The telephone conversation took place against the background of the parties seeking to avoid returning to the Tribunal and instead agreeing a basis on which that Remedy Hearing could be avoided.  In his witness statement at paragraph 5.3 Mr Lupton explains that there were two discussions with Ms Barnes and in the latter, Ms Barnes said to him that, “re-instatement was out of the question because there were no longer any vacancies”.  Ms Barnes agrees that was said.
26.	Mr Sugarman argues that the Tribunal ignored the context in which that comment was made, namely without prejudice discussions in which the Claimant was asking the Council to agree to reinstatement.  Secondly, the quote that the Tribunal referred to was a partial quote that leaves out of account the explanation for the statement, which was that there were no longer any vacancies.  Thirdly, the interpretation placed on the statement by the Tribunal was that this was Ms Barnes making clear that the Council intended to disregard any subsequent Order made by the Tribunal in relation to reinstatement.  In his submission, the evidence could not support that inference which was perverse.

27.	I accept those submissions which were not seriously contested.  The Tribunal was wrong to ignore the context and wrong to quote a partial statement by Ms Barnes.  Further, to interpret the statement as a decision to pre-empt the Tribunal’s Order was unreasonable and meant that the Tribunal was wrong to conclude that the conduct was unreasonable conduct, particularly in circumstances where the Tribunal itself made no Order for reinstatement.  Moreover by failing to canvass with the Council the possibility of making a costs Order on the basis of that statement by Ms Barnes, the Employment Tribunal deprived the Council of the opportunity to comment on Ms Barnes’ statement and to put that comment into context.  In those circumstances, in my judgment, the Tribunal was not entitled to conclude that there was unreasonable conduct, and the costs Order must fall.

Disposal
28.	Mr Sugarman submits that if he is right and the Tribunal erred in law in relation to re-engagement then the only possible conclusion in light of the approach of the Claimant and the Tribunal was that no re-engagement Order could be made and the only remedy available to the Claimant is a remedy based on compensation.
29.	I disagree.  This is a case where the Claimant, a litigant in person, made clear her wish to return to employment with the Council albeit not as clearly as she should have done for the reasons she gave.  It was incumbent on the Tribunal to canvass re-engagement on the wider basis with the Council and to deal expressly with the mandatory requirements of the statute, namely the particular employment into which re-engagement might be ordered and the practicability of such an Order, but it did not do so.  This is not a case where only one conclusion is available on this question.  Although on the face of it the jobs listed in the vacancy list (mostly if not all no longer available) were not suitable or practicable, it may well be that some flexibility could have been accommodated.  That would have been a matter for evidence and submissions by the Council, and is a matter that should return to the Tribunal to be dealt with appropriately.

30.	The next question is whether to remit to Employment Judge Moore or to a different Tribunal.  I have considered the factors identified in Sinclair Roche & Temperley v Heard & Anor [2004] IRLR 763.  Although I accept, as Mr Sugarman has submitted, some points in favour of remission to a different Tribunal, and I particularly have in mind the perception created by the costs Order, I am satisfied that the Employment Judge is fully capable of behaving in a fair and professional way.  She reached proper conclusions in relation to reinstatement and re-engagement to the Centre itself, and I am quite sure that, having regard to the guidance available in this Judgment, she is capable of and will reach proper conclusions on wider re-engagement if the matter is remitted to her.  That is the proportionate approach to take in all the circumstances.  The case is remitted to Employment Judge Moore accordingly.

31.	The Claimant should not take from this Judgment that there is any criticism of her or her conduct in this matter.  She was, as the Tribunal found, a good employee of the Council who worked hard in a valuable role.  She was not the cause of her dismissal, and she has undoubtedly been unfairly treated, as the Tribunal found.  It may be that with a degree of flexibility and co-operation on both sides - which I urge both sides to adopt - this case can be resolved without returning to the Employment Tribunal.  But if that cannot be achieved, the matter shall return to Employment Judge Moore to deal with the question of wider re-engagement other than to a role at the Earlsfield Centre.  The costs Order falls away, and to that extent the appeal is therefore allowed.