Appeal No. EAT/1004/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 2001

Before
MR RECORDER UNDERHILL QC
MR J R CROSBY
MR S M SPRINGER MBE

LINDA COLBACK	APPELLANT

MRS E FERGUSON & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	The Appellant in person	

MR RECORDER UNDERHILL

1	The Appellant was employed as a training manager in the office of the mental health charity, MIND, in Newcastle.  The office closed in 1995, or possibly not finally until 1996, in circumstances which are highly contentious.  We do not think it is necessary for us to attempt to summarise the background.  Suffice it to say that there were allegations of serious financial irregularities against a Mr Close and that as result the financial position of the Newcastle office was called seriously into question.  

2	The Appellant’s employers, as established by the Tribunal in proceedings involving two other employees, were the executive committee of the Newcastle MIND.  She and other employees were dismissed, ostensibly for redundancy, in September 1995.  In these proceedings, brought against seven members of the executive committee, the Appellant claims that that dismissal was unfair.  

3	A Tribunal sitting in Newcastle heard her claim over five days in January 2000, and by extended Reasons sent to the parties on 26 April 2000 dismissed her claim.  The Tribunal also “dismissed from the proceedings” three of the Respondents on the basis that they were not members of the executive committee at the time that the Appellant’s dismissal took effect.  This is, in effect, an additional reason why the claim against those particular Respondents failed. An application for review of that decision was dismissed on 15 May 2000.  

4	The Appellant appeals to this Tribunal against both the substantive decision of 26 April 2000 and the refusal of the review application on 15 May 2000.  She has put in very full and very well set out grounds of appeal.  These were amended, in some limited respects, in accordance with an Order of the Registrar on 14 August 2000.  We consider those grounds in turn.

5	The first point deals with the status of the three Respondents against whom the claim was dismissed, irrespective of the substantive issues in the case, and is dealt with by the Appellant under two heads.  The first is that the Tribunal misdirected itself in law on the status of Mrs Eccleston.  The Tribunal made an express finding that Mrs Eccleston was not a member of the executive committee after February 1994.  The Appellant asserts in her Notice of Appeal that Mrs Eccleston retained a very active role, notwithstanding her purported resignation; and she told us orally, although this does not explicitly appear in the Notice of Appeal, that in any event Mrs Eccleston was treated as a member of the executive committee from February 1995, when Mr Close ceased to have any further dealings with the affairs of MIND.  But we have seen nothing to suggest that the explicit finding by the Tribunal, to the effect that Mrs Eccleston was not a member of the executive committee at the relevant time, was not one which was open to it.  

6	The Appellant also, by her amended grounds of appeal:

“respectfully seeks a determination on the status of Mr and Mrs Lowery”

These are the other members of the executive committee against whom the claim was dismissed.  Her point is that Mr and Mrs Lowery resigned only because they were accused, or were suspected, of wrong-doing, and that they should not therefore be treated as if their resignation had been effective.  We are not aware of any arguable ground of law on which that can be a correct analysis.  The finding of the Tribunal was that they had effectively ceased to be members of the committee by the time the dismissal took effect, and that seems to us to be the only issue which arises.  

7	The Appellant’s second point is:
“the Tribunal has failed to determine the commencement date of employment.  This was an issue within the jurisdiction of the Tribunal but to which only vague findings have been alluded.  The appellant does not take the view that this is a discretionary issue dependent only on the potential of a hearing for remedies.”

That is a quotation from the original grounds of appeal.  The matter is put slightly more shortly in the amended grounds of appeal.  We do not see that the Tribunal was under any obligation to make a finding as to the commencement date of the Appellant’s employment.  It was not material to any relief which it was being asked to grant.  

8	The Appellant’s third point is that the Tribunal has made a finding that the employer consulted on redundancies but that no other Tribunal could have reached this finding.  This is plainly an allegation of perversity.  In paragraph 15 of the Tribunal’s Reasons, it said as follows:

“15    Then we come to the fairness of the decision to treat redundancy as sufficient reason to dismiss the applicant.  The statement was repeated during the course of the hearing, certainly originating on at least one occasion from the applicant’s side that everyone knew there were going to be redundancies from February onwards, but it was just a question of how many and when against that background.  There were crisis meetings, rescue plans, consultation with the union and agreement with a worker’s representative and the union chair in a Personnel Sub-Group that there should be redundancy, notices were issued, a rescue plan was not adopted because of lack of funding support and the decision to close was confirmed and authorised by a minuted resolution of the remaining members of the executive committee.  The Tribunal did not accept any challenge to the minutes of that meeting.” 

That summarises a number of other individual findings, in the early part of the Reasons, including findings that Mrs Anderson, the designated employee representative, had communicated to staff members on an ongoing basis the facts discussed in the executive committee as to the problems which Newcastle MIND was facing and the discussions of possible redundancies.  The Tribunal plainly did not find Mrs Anderson a satisfactory witness, but that was the finding of fact which it made as to her role and how she performed it. 

9	We have been through the grounds of challenge advanced by the Appellant to the finding of the Tribunal as regards consultation.  Some, such as the references to the position as regards the statutory collective consultation obligations and notification to the DTI, seem to us not to be relevant to the questions of fairness in general, and consultation in particular, as between the Respondents and the Appellant as an individual.  The remainder seem to us to be criticisms of the Tribunal’s conclusions of fact, which are incapable of supporting an allegation of perversity. 

10	The Appellant’s fourth point is that:

“The Tribunal found the statutory presumption of a fair redundancy to have been met.  No Tribunal considering the evidence and directing itself properly to the law could have reached this finding: it is “plainly wrong”.”

We sought to clarify with the Appellant what she meant by this ground.  In essence, she wishes to challenge the finding of the Tribunal that the dismissal was for an admissible reason, namely redundancy: that is what she had in mind in using the phrase “the statutory presumption of a fair redundancy”, although that is not in fact an accurate statement of its effect.  Her essential point is that the closure of the Newcastle MIND was unconstitutional, forced through by a small group, in collusion with the City Council. But whether that was so or not, she does not, and could not, deny that she was effectively dismissed, - albeit, she says, improperly - and it seems to us plain beyond argument that the reason for that dismissal was the impending closure of the Newcastle office.  That is, necessarily, a dismissal for redundancy.  How that decision was arrived at, and whether it was a justified decision, or properly arrived at through the constitutional procedures of the employer, is a matter outside the scope of the Tribunal in considering the questions arising under the statute.   The Appellant indicated that she did not wish to challenge the decision of the Employment Appeal Tribunal in Moon & Others v Homeworthy Furniture (Northern) Ltd, but it seems to us that the arguments which she wished to advance necessarily had that effect.  In any event, the Tribunal did consider, at paragraph 14 of its Reasons, whether the decision to proceed to closure was reasonable, and found that:

“it is lucidly clear that the respondents had no alternative but to bring the business of Newcastle MIND to a closure and dispense with the staff.  They faced bankruptcy threats from the Inland Revenue, immediate demands for repayment  of their overdraft from the bank and a total withdrawal of all major funding.  Mrs Colback has tried nobly to argue that the situation was not as stated above, but with a conspicuous lack of success.”

12	It is plain that the Appellant also wishes to challenge the fairness of the decision, even if it is to be treated as a dismissal for redundancy.  Once it is established that there was a genuine redundancy situation, and that that was the reason for her dismissal, this becomes a difficult argument for her to advance.  The Tribunal’s Reasons, as already partly quoted, concluded in summary that the problems of the Newcastle MIND were so acute that nothing short of total closure, with consequent redundancies, was practicable.  That finding seems to us to be unchallengeable as a matter of law.  No question of selection appears to arise, and so far as consultation is concerned we have already indicated that insofar as consultation is, as it plainly is, a relevant aspect for the Tribunal to consider in considering questions of overall fairness, the Tribunal’s conclusions cannot be impeached.  

13	The Appellant made it clear to us in argument that the core of her case that the dismissal was unfair was that it was effected by the unconstitutional clique to which we have referred earlier, i.e. that she was dismissed by the wrong people.  In our view, if the dismissal were otherwise for an admissible reason and otherwise fair, points to be taken as to the constitutionality of those taking the decision do not appear to us to bear on the issue of unfair dismissal.  

14	The Appellant’s fifth point concerned a finding made by the Tribunal in paragraph 9(b) of its Reasons.  There was an issue as to whether the Appellant had been an employee at all at the material time.  This issue the Tribunal determined in her favour; but one of the arguments which had been raised against her was that she had rendered an invoice for a sum of £3000, which had been paid, and it was said that that was inconsistent with her position as an employee.  In referring to that episode and, as we say, finding in the Appellant’s favour, the Tribunal said: 

“The fact that it was canvassed appears to a large extent to have resulted from the payment of £3,000.00 which the applicant extracted from the respondents in July 1995.”

The Appellant regards the use of the word “extracted” as pejorative, and indeed as implying criminal conduct on her behalf.  We do not believe that it is to be read in that way; but even if, which we do not accept, the phrase were ill-judged it could not, by itself, be a ground of appeal against the decision of the Tribunal.  We are happy to make it clear, if it needs to be, that it was not part of the Tribunal’s role to make findings about the propriety or otherwise of the Appellant’s conduct, and we do not think that this passage should be regarded by anyone as having that effect.  The Appellant also relies on the same phraseology as indicating bias on the part of the Chairman; we do not see how it can be so understood. 

15	Lastly, the Appellant says this:

“The Tribunal wing members in this case chose to make a private journey with a respondent immediately following the conclusion of the Hearing and before written submissions or a decision had been made.  An independent person with knowledge of the issues involved could well form the view that this encounter could have led to a real possibility of bias.”

This refers to an incident following the last day of evidence when the two lay members were seen by the Appellant sharing a taxi from the Tribunal to the railway station in Newcastle.  This incident formed the basis, or part of the basis, of the Appellant’s application for a review, and for the purpose of the review statements were obtained from the two lay members.  The essential facts appearing from their statements, which are very full, appear to be these.  Following the end of the hearing the members were waiting for a taxi outside a hotel close to the Tribunal offices.  Taxis were slow to come, and they were anxious to get to the railway station as soon as possible.  A taxi drew up and they tried to get in to it, but it then appeared that it had been pre-booked by Mrs Eccleston, one of the Respondents.  When it became clear what had happened, Mrs Eccleston said that her route took her past the station, and offered that they should share.  After initially demurring, they accepted.  Mrs Eccleston sat at the front of the taxi, and they sat in the back.  There was little conversation and none relating to the case.  The members paid for the journey as far as the station. 

16	The Appellant accepts that she is not in a position to challenge the veracity of the statements of the lay members to that effect.  In our view it was unwise of the Tribunal members to accept, precisely because there was a risk that by their doing so, some suspicion of the type on which the Appellant now relies might arise.  However, that is not the essential question in law.  In the leading case of Reg v Gough [1993]  A.C. 646 Lord Goff said, at page 670:
“I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matters through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event, the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time.  Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger, rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him;”

Once it is appreciated that that is the test, and it is for this Tribunal, having regard to the facts as now known, to decide whether there was a “real danger” of bias, we are entirely satisfied that there was no such danger, and there is no prospect of an appeal succeeding on those grounds.  

17	In these circumstances, having reviewed all the grounds of appeal which the Appellant would wish to raise if the matter proceeded to a full hearing, we are satisfied that there is no real prospect of success on any of them, and we accordingly dismiss the appeal.  

Sir, I need your permission for leave for the Court of Appeal.  

Yes, you need to have asked for it.  No, we refuse.