APPEARANCES
| For the Appellant |
Mrs J Archer
(The Appellant in Person)
Mr D Archer
(Representative) |
| For the Respondent |
Mr B Carr
(of Counsel)
Instructed by:
Messrs Lovells Solictors
Atlantic House
Holborn Viaduct
London
EC1A 2FG |
SUMMARY
Unfair dismissal – Reason for dismissal including substantial other reason
Race discrimination - Indirect
Appellant was dismissed by the Respondent, who should have first obtained the approval of the Lord Chancellor but instead followed no procedure at all, disciplinary or otherwise. The reason was that she had been absent from her post in London for over 9 years, was now living in Wales, and delivered an invitation to return. Extensive grounds of appeal were reduced to two for full hearing: in relation to disclosure, and arguing that the Tribunal was obliged to apply s.98A(2) to hold the dismissal unfair. In particular, it was argued that the effective decision to dismiss was that of a third party (the Lord Chancellor) and thus it could not be proved by the evidence called by the Respondent what he – an independent third party – would have decided.
The appeal was rejected. The Appeal Tribunal lent further support to Kelly-Madden in its approval to "a procedure".
THE HONOURABLE MR JUSTICE LANGSTAFF
- This is an appeal from a decision of an Employment Tribunal at London (Central) the reasons for whose decision were promulgated on 30 January 2006. For two reasons this judgment may be shorter than it would have otherwise have been. The first is that we have the great advantage of a reasoned judgment made on a preliminary hearing by a Tribunal over whom HHJ Richardson resided which we incorporate so far as material into this judgment, and secondly, more pragmatically, because of the hour. For those who may later come to read it a summary of the facts, though partial, is provided by the submissions which the Respondent presented at the close of the hearing to the Employment Tribunal.
- The overview which appealed to the Respondent was to draw attention to the fact that the Appellant had been employed as a Deputy Chief Clerk in the Magistrates' Courts at Highbury Corner Magistrates' Court from 9 August 1993. On 12 March 1995 she took maternity leave. By October 2004 the Claimant had, with the exception of two days in February 1996 when she returned to work for the purpose of securing a career break, been absent from the workplace for a period just in excess of 9 ½ years. During that period of time she had been granted successive extensions to her overall period of absence and according to the Tribunal, though it was an issue, had shown no real inclination to return to work in her substantive post in London.
- It was said by the Respondent, and the Tribunal broadly accepted, that she had also during that period failed to keep in touch with her employers for long spells of time and told her employers that she could not in fact return to employment in London due to the fact that she had relocated in South Wales - the Tribunal indeed found that she had no real intention of doing so. She wanted, it appears, to keep her employment status, for reasons no doubt connected with seniority in, or advantage in securing, a post as a Magistrates' Clerk in Wales.
- The Tribunal dismissed complaints that she had been unfairly dismissed with effect from a date with which it was agreed between the parties was 26 October 2004. It dismissed her complaints of automatic unfair dismissal, of direct and indirect sex discrimination and of breach of contract. In respect of those complaints she appealed on a number of grounds to this Tribunal.
- By the decision of this Tribunal presided over by HHJ Richardson on 8 November 2006 a limited number of grounds only were permitted through to this full hearing. The first related to disclosure, the second series of grounds related to the impact in this case of section 98A(2) of the Employment Rights Act 1996. Critical to the background against which we are asked to decide these issues is the status of the Appellant as a Deputy Magistrates' Clerk. As such she had the protection because of her initial employment of section 80 of the Police and Magistrates Courts Act 1994. Subsection 6 of that section provides:-
"A person who is employed under a contract of service to which subsection 5 above applies…" (this is one such case) "shall not be dismissed from his employment without the approval of the Lord Chancellor and before approving the dismissal of any such person the Lord Chancellor shall consider any representations made by him."
This procedure is echoed in the provisions of the Justices of the Peace Act 1997 schedule 4 paragraph 11(3). It also finds expression in a disciplinary procedure which we were shown as a schedule f. It might thus appear that the Respondent being a public body would have no power lawfully to determine the employment of the Claimant without first obtaining the approval of the Lord Chancellor. As a matter of fact that approval was never sought. It was therefore never given.
- At the outset of this hearing we enquired of the parties whether they wished or how they wished us to proceed in the light of this. Both parties urged us to accept the economic reality of the case that the Appellant had been dismissed effectively on or with effect from 26 October 2004. The Claimant had asserted dismissal. A claim for unfair dismissal could be based on nothing else and the Respondent had accepted that that was the case. It appears that the true legal position, if it were different, never occurred to the parties until very shortly before the Employment Tribunal hearing. Both proceeded upon the basis that there had been a dismissal.
- There have been no proceedings before the administrative court seeking judicial review of the decision to dismiss. Neither party has suggested that the decision to dismiss is a nullity albeit that it was the decision of the Respondent and not the decision of the Lord Chancellor. Although we recognise the artificiality of dealing with a case whose legal foundations may seem to be as shallow as these we shall do so. This is because our function is to resolve disputes between parties. Where the parties both say that a certain premise is to be accepted as correct which brings both parties within the scope of the law, we see it as appropriate that we should determine the dispute as it is presented to us by the submissions of the parties. It does however have this repercussion in this particular case. It has to be accepted that the decision which we are asked to review is a decision of the Respondent and not a decision of the Lord Chancellor. The employer who has the power to dismiss, it has to be accepted, is the Respondent and not the Lord Chancellor.
Disclosure
- Prior to the commencement of the hearing on 17 October 2005 the Appellant had sought extensive disclosure; orders had been made requiring such. She sought an order from the Tribunal for further disclosure having had nothing more disclosed to her under the original orders than her personnel file and internal emails referring to her. She wrote on 5 October 2005 requesting such disclosure and enclosing a list which we have at page 107 of the hearing bundle. That identified some 26 separate items which the Appellant asked should be disclosed to her. When that letter was put before the Tribunal it ruled that the Appellant was to make her application to the Tribunal at the beginning of the full merits hearing.
- Her complaint by way of Notice of Appeal at the original paragraph 6(1) is that in refusing to hear the Appellant's application for disclosure at the outset of the hearing on 17 October the Tribunal misapplied or misconstrued the overriding objective from rule 3(1) of the Tribunal Constitutional Rules of Procedure Regulations 2004 to deal with the case justly. The Appellant was later informed by solicitors acting for the Respondent that material relevant to the issues between the parties had not been disclosed. The impact of non-disclosure was that the Appellant was unable fully to present her case or cross-examine witnesses. This allegation was explored by asking the Tribunal chair and members to provide, if they would, statements of what they recollected as having occurred. It was plainly being alleged that the Claimant had not been permitted to make an application at the outset of the hearing. They did so.
- We have seen an affidavit from the Appellant. We have seen an affidavit from Mr Carr who appeared then as he appears today for the Respondent. We see our task as being to ask first what happened, secondly, did what happened demonstrate a procedural irregularity, and thirdly, if so was the Appellant disadvantaged thereby? Without setting out the accounts in detail because they differ in a number of respects, we can none the less be satisfied that this is what happened. We are satisfied on the material before us, it being a finding of fact for us to make, that an application was made for further disclosure before the Tribunal. We conclude that there were some submissions made in respect of it by both parties. The application was not however determined there and then. The Tribunal chair indicated that evidence would be heard first, and it duly was. The application was never revisited.
- Mrs Archer told us in the course of her submissions that she felt that a consequence of that was that she was disadvantaged in her cross-examination of witnesses. She felt that the way in which the chair had dealt with the matter was to preclude her from making a subsequent application.
- Was there an irregularity? In our view, on the evidence we have had put before us, there was no determination of the application. The chair did not say in terms that there could be no further such application. She did not in other words refuse the application nor rule that another one could not be made. Indeed if she had decided the application one would have expected to see some reference to it in the decision as there was about later issues in respect of disclosure of documents.
- We conclude that, although it may have been the understanding of the Appellant that she was not expected to make a further application, this was not a reasonable understanding of that which the chair had said. The chair was exercising case management powers in determining when it was appropriate, if at all, for the matters relating to disclosure to be further ventilated if they were to be. We note that the way in which the complaint was first put to us, and indeed the ground of appeal, focuses upon the timing at which the application was made. It does not in its terms suggest that such an application was precluded later in the hearing. We think it was as a matter of procedure open to the Appellant to make such an application. Both she and her husband are professionally qualified and both were there pursuing the case, we think, jointly.
- Was she at any disadvantage? It follows that if she could have made the application later at an appropriate time she would have been at no disadvantage in not having done so earlier. What seems to us to be unfortunate is the view that she took, that further pressure upon the chair to accede to her application would not be welcome. However, forming such a personal, unexpressed, view seems to us to fall short of establishing the unfairness necessary to constitute a procedural irregularity. In short, we can see no error of law in the Tribunal's approach and that of course concludes our powers in this matter. However it is right that we should add that we have looked at the list of materials of which disclosure is sought. We are not satisfied that those materials would have been necessary for a fair resolution of the issues arising between the parties in any event.
Section 98A(2)
- The Tribunal found that the employer had not treated the Appellant fairly. In considering unfair dismissal it concluded at paragraph 82 that the Respondent had followed no procedure at all in terminating the Claimant's employment. It had terminated her employment as a result of a letter written on 14 June 2004 requiring her to return to work, and when she did not return to work on that date by further letters on 26 October treated her as having resigned as a result of that conduct. The date at which dismissal was in contemplation predated 1 October 2004. As a result section 98A(1) did not apply to her dismissal. Section 98A(2) however, in its terms, applies to dismissals after 1 October 2004, and so it did.
- Having determined that the Respondent had followed no procedure and having concluded that the Respondent dismissed her without any disciplinary process despite a need for that having been highlighted in an internal report, the Tribunal thus had to consider whether or not the employer had satisfied them within the terms of section 98A(2) that the failures made no difference. Much turns upon the precise wording of that section which is as follows, so far as material:-
"Failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."
- At paragraph 82 the Tribunal said this:-
"82. As dismissal took place after 1 October 2004 the Respondents are able to avail themselves of the provisions of section 98A(2) of the Employment Rights Act 1996 (as amended) and therefore have the opportunity to show that the Claimant would have been dismissed even if they had followed the procedure. The procedure here is the statutory procedure that the Claimant was entitled to have the Lord Chancellor consider her case."
- At paragraph 84 it expressed its conclusions in these terms:-
"84. We are satisfied that without the operation of section 98(A)(2) the Claimant's dismissal would be procedurally unfair. We are equally satisfied that there would not be any substantive unfairness. If we were to make a finding of unfair dismissal it would be open to us to conclude that she had contributed substantially to her dismissal and that she would have been dismissed in any event had the procedure been followed. We accept Mr Carr's submissions in the alternative that had the Respondent gone through an internal disciplinary procedure, the outcome would have been the same. We are satisfied that Mrs Archer had not intention to return to work. We accept without reservation that she was, by her conduct, 100% responsible for the ultimate dismissal and we would find contribution to that extent."
- The Tribunal went on to say this as to the impact of section 98A(2):-
"85. However, the provisions of section 98(A)(2) have modified the 'fairness' arrangements at section 98(4). If the Tribunal is satisfied that the outcome would have been the same had the procedure been followed, then there is no unfair dismissal for the purposes of section 98(4)(a). In his closing submissions Mr Carr set out a long list of matters which would be relevant to any disciplinary deliberations (pages 4-10). We deliberated carefully and conclude that had the provisions at schedule 4 paragraph 11 of the Justices of the Peace Act 1997 been followed, the outcome would have been the same. We have no reason for considering that the outcome would be otherwise. We heard four and a half days of evidence and a half day of submissions. We have considered a very large number of documents and have had to make findings of fact in the face of conflicting evidence. We have heard the Claimants representations which presumably are the same or similar to those that would have been put before the Lord Chancellor, and we cannot see how his conclusion would have been other than to approve the dismissal.
86. It follows that we find that the Claimant was fairly dismissed."
As to that Mr Archer, on his wife's behalf, makes a number of submissions.
- First, he maintains that the Tribunal was wrong to hold that section 98A(2) was engaged. First he submitted that it could not be said that there was a procedure within section 98A(2). This was because the section made reference to failure by an employer to follow a procedure and here the failure was not that of the employer but of the Lord Chancellor. Secondly, a procedure must be read as a procedure of the employer and not a procedure which derived from statute such as the Police and Magistrates Courts Act 1994 or as it may be the Justices of the Peace Act 1997. Thirdly, he maintained that it was for the employer to prove that he would have decided to dismiss the employee. Since the decision which was critical to dismissal was in reality that of the Lord Chancellor there was no evidential basis upon which the employer could properly do this and therefore the Tribunal were necessarily wrong in attempting to speculate as to that which the Lord Chancellor, an independent third party, who was not before them and about whose processes there was no evidence, would have said.
- Next, he drew attention to cases determined since the Tribunal hearing, before this Tribunal, in which the scope of section 98A(2) has fallen for consideration. The first of those was a case called Mason v Governing Body of Ward End Primary School [2006] IRLR 432. Between paragraphs 24 and 36 this Tribunal presided over by HHJ McMullen placed a restriction upon the extent of that which was included in the scope of "procedure". A conclusion that there was no natural restriction within the wording of "a procedure" was, to the contrary, reached before this Tribunal presided over by the President, Elias J, in the case of Alexander v Bridgen Enterprises Ltd [2006] IRLR 422: see paragraphs 57 and 64. That decision was made in ignorance of the contemporaneous decision of HHJ McMullen.
- Elias P and the members of the Tribunal over which he was presiding therefore reconsidered the question in the case of Kelly-Madden v Manor Surgery [2007] IRLR 17. In that case at paragraphs 40-46 the Tribunal set out a reasoned analysis for preferring the Alexander approach to the Mason approach. This Tribunal again presided over by Elias P has adopted the self same approach subsequently in the case of Software 2000 Ltd v Andrews 26 January 2007 (UKEAT/0533/06). Mr Archer sought to argue that the Mason approach was not yet dead and that although a procedure, if it were construed broadly as Kelly-Madden, Alexander, Software 2000 Ltd suggested would be capable perhaps of including a procedure provided by statute for seeking the approval of the Lord Chancellor, if it were construed more narrowly in the Mason sense, it would not be. We unhesitatingly adopt the same approach as did Elias P to the words of the section. It seems to us that one cannot read in the restriction to those words which were read in by this Tribunal in the Mason case. Moreover we would support entirely the reasoning in Kelly-Madden.
- We would however add this to the reasoning in Kelly-Madden. It seems to us that one only gets a Tribunal to consider section 98A(2) if it first draws the conclusion under section 98 that the employer has satisfied the Tribunal that there is a reason falling within subsection 2, but that that employer may have acted unreasonably in treating it as a sufficient reason for dismissing the employee. Where that reason is a failure of procedure the Tribunal will have identified it as sufficient for holding that within the meaning of section 98(4)(a) and (b) they would conclude the dismissal was unfair were it not for section 98A. It is therefore the procedure which the Tribunal itself has in mind as relevant to the fairness of the dismissal which falls for consideration under subsection 2 of 98A. That reasoning, it seems to us, supports the view that whatever procedure the Tribunal feel the employer ought in fairness to have adopted is that which falls for consideration within that section.
- We do not accept the submissions made to us by Mr Archer. First, "procedure" is, as we have noted, a broad word. Secondly, the failure here was not a failure by the Lord Chancellor but a failure by the employer to approach the Lord Chancellor for his approval and to indicate to Mrs Archer that she could make representations to him. Once it is accepted, as it was in this case, that for the purposes of this hearing at any rate the employer had a power to dismiss which he exercised then the procedure which he should have adopted is plainly his own procedure and the procedures of a third party are nothing to the point.
- Next, it seems to us that the reference to the decision being one of a third party though initially seeming to have some appeal has to be answered upon the approach which was identified in Software 2000. At paragraph 54 of the judgment Elias P set out what seems to us a helpful set of applicable principles. At (3) he said that there might be circumstances where the nature of the evidence which an employer wished to adduce on which he sought to rely was so unreliable that the Tribunal might take the view that the whole exercise of seeking to reconstruct what might have been was so riddled with uncertainty that no sensible prediction based on that evidence could properly be made. It is said by Mr Archer that that is necessarily the case here.
- The fourth principle however reads on as follows:-
"Whether that is the position is a matter of impression and judgment for the Tribunal, but in reaching that decision the Tribunal must direct itself properly. It must recognise that it must have regard to any material and reliable evidence which might assist it in fixing just compensation even if there are limits to the extent to which it can confidently predict what might have been and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.
5. An appellate court must be weary about interfering with the Tribunal's assessment that the exercise is too speculative. However it must interfere if the Tribunal has not directed itself properly and has taken too narrow a view of its role. That there must inevitably be uncertainties is obvious from the context."
- In argument Mr Carr for the Respondents suggested that there may be cases in which the employee of a subsidiary company might fall to have his appeal determined by managers in the employment of the holding company. The procedure would not in one sense be the employer's procedure. Neither would it necessarily be the case that the Tribunal would have the individuals who might make the decision before it. It would have to some extent to make its best assessment of that which those men would decide. The same must be true in any case where the failure of the employer is a failure to permit an employee to put his case before a disciplinary panel or for that matter an independent appeals panel. In such a case it may be very difficult to know what that panel might have decided without even knowing what its constitution might be.
- It seems to us that these uncertainties are implicit in the context within which section 98A(2) has to work. It may be that exercising its best judgment a Tribunal concludes that the evidence before it is insufficient for it to be satisfied that the employer can properly ask it to determine that there was a probability of dismissal in any event. However it is not what this Tribunal did. The wording of paragraph 85 made reference to a very large number of considerations urged upon it by the Respondent. Broadly speaking, most of those representations were ones which the Tribunal elsewhere adopted as fact. They refer to the evidence, the submissions and the documents. They also take account of the fact that the Claimant was able to make submissions as to what the Lord Chancellor would or would not have decided.
- Powerful submissions were made to us on the Appellant's behalf, perhaps repeated from those which were made to the Tribunal by Mr Archer. They urged that the Lord Chancellor might well have in mind a broader perspective than that of the Greater London Magistrates' Courts Authority. He might, for instance, have regard to the need to retain experienced and worthwhile clerks in office. He might have had regard to the broader, more liberal, considerations which would have meant that this Appellant would not have had her dismissal approved. But powerful as these submissions are the point which the Tribunal make at paragraph 85 is they had heard those submissions and felt able to determine them.
- We have to ask ourselves whether the Tribunal were in error in concluding that they had at least sufficient evidence before them to make an assessment. We cannot say that they were. Unless we can be confident that there was something necessarily wrong with their approach to that assessment, or that its decision was so unreasonable that no reasonable Tribunal could make it, its assessment must stand. We can say that neither of those faults appears obvious to us. Its assessment must therefore stand.
- The issue of the date at which dismissal would have occurred, had a procedure been followed, was raised, relying on what was suggested in the Alexander v Bridgen case. The summary of principles in Software 2000 takes Alexander a stage further. At principle (7) a range of options for a Tribunal is set out. One of those is to find that employment would have continued but only for a limited fixed period, which is to be contrasted with a finding (7(a)) that the employment on the balance of probabilities would have terminated when it did, had a fair procedure been followed. As to this we have had regard to the issue which the Tribunal had to determine. The statutory issue posed by the 1996 Act as amended is one which is dependant upon the employer showing that he would have decided to dismiss. There is no reference there to time.
- Showing that he would have decided to dismiss involves presenting a sufficiency of evidence to persuade the Tribunal that he, the employer, would have taken that course. The dismissing employer here was the Magistrates' Courts authority. At the close of his submissions Mr Archer argued that it might be a different employer, because, if the procedures had been allowed to run their course: discipline first, with 28 day intervals between the stages, followed by a reference to the Lord Chancellor which would be determined within an uncertain time scale, it was likely that the Appellant would not have been dismissed before 31 March 2005 when the Greater London Magistrates' Courts Authority ceased to be. She would have become an employee of the National Service which then took over. He did not persist in arguing this point. The regard that the Tribunal has to have is upon the actions of the employer who dismisses.
- The issue of time could have been addressed by the Tribunal but was not. Is this a necessary flaw in its decision? Since the statute does not require the Tribunal to consider time as such, although plainly it may do so of its own motion or at the invitation of either party, we do not think that the decision is in this respect flawed.
- Next at the conclusion of paragraph 84 the Tribunal indicated that it concluded that Mrs Archer was 100% responsible for her ultimate dismissal. This is a finding of contribution. Contribution was in issue before the Tribunal, albeit that this was not a remedies hearing. That is plain from the Claimant's own closing submissions in writing, the opening words of paragraph 3.1.8 reading "On contributory fault…." and it is plainly what the Respondents addressed too. The issue therefore of the percentage of contribution was before the Tribunal. Here a wrong had been done to Mrs Archer. It was a wrong which no doubt had consequences for her, but that is the position in any case in which contribution falls to be assessed. We have considered anxiously whether the finding as such can stand but we have concluded once again that a Tribunal's assessment of contributory fault even to the extent of 100% is not one with which any appellate Tribunal should lightly interfere and we decline to do so.
- It follows that on all the submissions which had been made to us in respect of the various grounds of appeal we have no option but to reject the appeal and do so.
An application for leave to appeal
- It is correctly said that there are decisions of this Tribunal which are somewhat inconsistent. We do not think that that is a suitable ground of appeal in this case both because of the particular facts of this case and because the inconsistency arose between a decision early in a line of decisions which since then have been entirely consistent and reasoned.
- Secondly, it is said that the Court of Appeal should have an opportunity of considering the operation of section 98A(2) in cases where third party involvement is concerned. We do not think that this is a suitable case in which to consider any such point. As far as we are concerned third party involvement is within the context in which section 98A(2) must be thought to operate. In this case the issue was entirely one of fact whether the Tribunal had a sufficiency of evidence to decide it was in a position to assess what the third party might do. It is a case therefore not of third party involvement, but of the sufficiency of evidence. Accordingly we refuse leave to appeal.
