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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Boreland v Gloucestershire County Council [1994] UKEAT 645_92_2305 (23 May 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/645_92_2305.html Cite as: [1994] UKEAT 645_92_2305 |
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At the Tribunal
Before
HIS HONOUR JUDGE J HULL QC
MISS J W COLLERSON
MR P DAWSON OBE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR J L SHAW
(REPRESENTATIVE)
Shaw Personnel Services Ltd
The Cleeves
Nailsworth
GL6 OPA
For the Respondents MR K HARVEY
(SOLICITOR)
County Legal Services
Quayside House
Quay Street
Gloucester GL1 2TZ
JUDGE HULL QC: This is the decision of us all. Mrs Boreland was employed by Gloucestershire County Council as a Night Care Assistant in homes for the elderly, a highly responsible position. She is a lady in middle age. She was first employed by the authority on the 26 January 1975, or the Respondents say rather later in 1975. About two years later in 1977 she started at one of the Council's homes, Saintbridge House, where she remained for twelve years. She, one evening in November 1989, appeared to be under the influence of drink, or drugs, at a training session. She was with one of her colleagues, who was apparently in the same shape, and was sent home.
There followed attempts to hold disciplinary hearings. I should say that the staff at this particular home wrote a letter which we have seen, in which they referred in unfriendly terms, to her behaviour and said that they themselves had suffered as a result. So there was dissatisfaction at Saintbridge House amongst her colleagues, apparently. That letter was written to the Union. It was clearly intended to have some influence on the Union's attitude; if it was taken seriously by the Union there would be an effect on Mrs Boreland herself.
Mrs Boreland was unwell for much of 1990. It was not until the end of 1990, a year later, that the matter was finally dealt with. There was a disciplinary hearing. There was a warning, and she was ordered to be transferred and her appeal was dismissed on the 29 November 1990. On the 17 December 1990, more than a year after her first suspension, she reported at another of the Council's establishments, called Woolstrop House. There again, the staff's reaction to her was very unfavourable. She was again sent home. Her suspension continued.
Had that led to her immediate dismissal there would have been little doubt, one would have thought, that that was caused by the staff reaction. However, that was not the position. She went home and she continued at home. She was offered work, not at night but during the day. That apparently did not suit her for various personal reasons. In particular she was looking after her grandchild. She had legitimate reasons for rejecting that. She was offered employment on the 10 January 1991 at a place called Trevone Elderly Peoples Home. She declined that offer and then she was offered further day work at another establishment in March 1991, and she declined that; again, no doubt, for good reasons. She remained without work, but on pay.
During 1991 and perhaps before, Gloucestershire County Council had been considering and negotiating plans for the transfer of its old peoples' homes to a private limited company, which was non profit making called, Coverage Limited. Those negotiations bore fruit in June 1991 when the majority of the homes were transferred. This made the placing of Mrs Boreland impossible. All but two of the homes were transferred and one of those apparently was not operational. She was offered voluntary early retirement. She declined that.
Eventually in September 1991 she received notice of redundancy from her employers, as they called it, and that was to expire on the 31 December 1991. She was dismissed on that date. She complained to the Industrial Tribunal on the 13 January 1992 and this appeal is brought to us from the decision of the Industrial Tribunal. They sat at Bristol under the Chairmanship of Mr Woods on the 20 May 1992. They gave their short reasons on the 26 May and their full reasons, which are with our papers, on the 15 July. Putting it very shortly, they found that the dismissal was by reason of redundancy.
What was urged by Mr Shaw, who has appeared before us today, was that they failed to give proper weight to and reach a proper decision in respect of, his submission that the reason for dismissal was not truly redundancy but was the Industrial action, or threat of Industrial action, taken first by the staff at Saintbridge, and, secondly, by the opposition of the staff at Woolstrop House, when they too objected to her and so she was sent home from there too; and he invites our attention to Section 63 of the Employment Protection (Consolidation) Act 1978 which provides:
"In determining, for the purposes of this Part any question as to the reason, or principal reason, for which an employee was dismissed or any question whether the reason or principal reason for which an employee was dismissed was a reason fulfilling the requirements of section 57(1)(b) or whether the employer acted reasonably in treating it as a sufficient reason for dismissing him,-
(a)no account shall be taken of any pressure which, by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to dismiss the employee, and
(b)any such question shall be determined as if no such pressure had been exercised."
Mr Shaw has invited our attention to several cases which deal to some extent with the questions of causation and the other logical questions which arise from the application of that section. For example, in one of the cases, there was the question of what contributory fault should be attributed to an employee and there are other questions of causation which arise. However, they do not, with great respect, appear to us to be material in this case. In particular, it is not necessary for us to decide, and it was not necessary in our view for the Industrial Tribunal to decide, whether the actions of the employees, who clearly did not like the prospect of working with this lady, were intended to bring about her dismissal or were merely calculated to bring it about. We do not need to consider that at all, because of course the Tribunal has made no findings.
The effect of Section 63 is simply this: that if there comes into the story, if I can put it in this very general way, if these comes into the account of the employee's employment, and the ending of his or her employment, Industrial action or the threat of Industrial action of some sort then that is to be disregarded. No account should be taken of it. It would have been, of course, rather simpler to a person coming to this legislation for the first time if Parliament had simply provided that if a dismissal or other penalty is inflicted on an employee because of Industrial action, then that should automatically be treated as unfair. But that was not the language used by Parliament. What Parliament said was that no account was to be taken of it in deciding on the questions which Section 63 refers to, which of course are the questions under Section 57.
Here the Tribunal thought it right to ask themselves whether the threat of Industrial action, if that was what it was, had anything to do with the matter. They deal with that in paragraph 10 of their decision. Mr Shaw with his usual ability has sought to persuade us that we should find that the dismissal was unfair by reason of the provisions of Section 63, on the grounds that it was caused by the Industrial pressure, which caused the Respondents to withdraw the Applicant from Woolstrop House. The Tribunal referred to two cases to which we have been referred, Trend v Chiltern Hunt [1977] IRLR 66 and Ferries v Johnstone, reported, 30 October 1984.
What the Tribunal are required to do is to decide on the cause of the dismissal. Of course they have to consider the matters under Section 57 - what was the reason for the dismissal? Did the employer act reasonably in treating it as a reason for dismissal?, and in doing that they have to put out of their minds any Industrial action. The Industrial Tribunal were to say to themselves, and no doubt did, "we are to take no account of the Industrial pressure which resulted in her not being taken back at Saintbridge House", if it did, and not being taken on at Woolstrop House; we are, so to speak, officially and lawfully obliged to ignore those matters. So far as we are concerned she simply was sent home and no reason on which we can rely for explaining those matters is adduced in evidence. What we have to consider is, when she was finally dismissed, more than a year later, what the cause of that was. We have put out of our minds any Industrial action, we are not concerned with that, we must take no account of that. What was the cause of her dismissal?
The employers, of course, said it was redundancy. As a result of the transfers of these homes their requirement for work of this sort, or for work of this sort at a particular place where she had been employed, had ceased or diminished. That was the case which they put forward.
Of course it might have been possible to take a different view of the facts and the Tribunal might have said "we do not think that redundancy has anything to do with this". It would have been perhaps a rather strange view of the facts, but there it is. The question is one of causation; of what is the true cause, the true reason for the dismissal and of course whether the employer acted reasonably. These are questions of fact for the Tribunal. It seems to us that if anything they put their minds in a frame rather too favourable to the employee; they said:
"In other words was the threat of industrial action the causative factor for this dismissal? The answer to that question is, in our view, clearly that it was not."
That is the question of causation, and they were well entitled to reach their conclusion. Therefore having put the questions of Industrial action, and its effects, entirely out of their minds, they had to ask themselves what was the true reason for the dismissal. What had the employer shown? They found that it was redundancy. The requirement had ceased or diminished, by reason of events which they described and which I have tried to describe shortly. It seems to us that they were entitled to reach that conclusion.
No question of law, in our view, arises here. Therefore in spite of Mr Shaw's persuasiveness to which the Tribunal also paid tribute, we are afraid that we cannot allow this appeal and it falls to be dismissed.
