Appeal No. UKEAT/0822/03/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 March 2004
Judgment delivered on 30 July 2004

Before
THE HONOURABLE MRS JUSTICE COX
MRS R CHAPMAN
BARONNESS M T PROSSER

MR EDWARD NEEDHAM	APPELLANT

UNIVERSITY OF WARWICK	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR PATRICK GREEN
(of Counsel)
Instructed by:
Employment Integration
Manor Farm
Hummingham Road
Offchurch
Leamington Spa CV33 9AG	
For the Respondent	MR ANDREW TABACHNIK
(of Counsel)
Instructed by:
Messrs Martineau Johnson Solicitors
St Philips House
St Philips Place
Birmingham B3 2PP	

SUMMARY

Unfair Dismissal

Research Assistant employed by Respondents for “administrative reasons”, but working on fixed-term contracts entirely for a medical consultant attached to the Respondents and on research benefiting only the NHS Trust which employed the consultant and which funded the Assistant’s post.  Extent of Respondents’ duty to Assistant when consultant suspended and Trust failed to confirm that funding was available to renew contract.  Perversity and/or inadequacy of reasons challenge to ET’s conclusions.

THE HONOURABLE MRS JUSTICE COX

1.	This is the full hearing of an appeal by the Applicant (Appellant) from a decision of the Birmingham Employment Tribunal, promulgated on 18 August 2003, dismissing his complaint of unfair dismissal.  The Appellant’s principal ground of challenge to the Tribunal’s Decision is that it was perverse, the dismissal being said to be “plainly unfair”; and/or that the Tribunal’s reasoning was wholly inadequate, rendering their Decision unsustainable.  The Respondents submit that the Tribunal carefully considered all the relevant evidence, made legitimate findings of fact, applied the relevant law correctly to those facts and gave adequate reasons for their conclusions.

2.	In considering the issues in this appeal we have been assisted by Chronologies prepared by the parties which were, in the main, agreed and which enabled us to understand the evidence before the Tribunal below, where the hearing lasted approximately five days.

The Facts

3.	The Tribunal’s findings of fact are set out at paragraphs 1-8 of the Extended Reasons.  The Appellant was a research assistant, who was employed by the Respondents on a series of short-term contracts from August 1997 until 31 May 2002, when the last such contract came to an end.  It was common ground that there had been a dismissal.

4.	The Tribunal and Mr. Tabachnik, appearing before us on behalf of the Respondents, described the employment relationship between the parties in this case as “anomalous” and Mr. Green, for the Appellant, did not disagree with that description.  The Tribunal described the circumstances in paragraph 3 of their Reasons as follows:
“3.	Before starting work for the respondents, the applicant had been a research assistant at St. George’s Hospital, London, where his supervisor was Dr R K Mattu.  In May 1997, Dr Mattu was appointed a consultant cardiologist at the Trust and in August of that year, he arranged for the applicant to join him there as his researcher.  At the same time, Dr Mattu became an honorary lecturer at the respondent university.  For reasons which are obscure, it was agreed between the respondents and the Trust that the applicant would be paid by the respondents from funds provided by the Trust.  Those funds originated from grants and sponsorship obtained by Dr Mattu, but administered by the Trust.  The result was that the respondents accepted the legal responsibility for employing the applicant, but had no control over what he did or where he worked.  Dr Mattu, once again became the applicant’s research supervisor, and it seems to us that, in reality, the applicant became Dr Mattu’s personal assistant and the coordinator of his expanding research department.  The respondents received some benefit from these arrangements in that they were able to point to a distinguished cardiologist on their staff and have the technical assistance of the applicant, who occasionally worked for Dr Mattu in their laboratories.  However, the funding arrangements were inefficient and payments by the Trust to the respondents were often delayed.  In retrospect, all parties seem to be agreed that it would have been more appropriate for the applicant to have been paid and employed directly by the Trust.  Probably the reason for the anomalous arrangement was that the respondents, in their Department of Biology, employ as many as 50 researchers, technicians and other academics on fixed-term contracts, most of which are not renewed at the end of their fixed term because further funding has not been secured.  The respondents therefore had the experience of administering such contracts, which the Trust did not have.”

The reason why the Respondents agreed to be the Appellant’s employers was therefore identified as the experience which the Respondents had in administering such contracts, experience which the Trust did not have.  The only benefits afforded to the Respondents from this arrangement were those identified by the Tribunal, namely the presence of Dr. Mattu, a distinguished cardiologist, as a member of their staff and the technical assistance he received from the Appellant, who occasionally worked in the Respondents’ laboratories.  As the Tribunal found at paragraph 7 the Appellant’s researches were all conducted for the benefit of the Trust.

5.	The facts which the Tribunal found concerning events leading up to the Appellant’s dismissal were set out at paragraphs 4-8 as follows:

“4.	The applicant’s initial fixed-term contract was for a period of two years, to expire on 31 July 1999.  In May 1999, the respondents notified him that it appeared that, as there was no further funding available and as they were not able to guarantee further employment, his employment would terminate in July.  After some negotiation in respect of unpaid leave, the fixed-term contract was extended to 30 September and on 6 October 1999 it was extended at the written request of Dr Mattu until 31 January 2000.  It was then extended to 14 May 2000, then to 31 May, 31 July, 30 September and then to 14 May 2001.  The final contract was then for a period of a year to 31 May 2002.  At each of these renewals, problems of funding arose, but the applicant, who was well aware of the sums available in Dr Mattu’s research accounts, seems to have taken a relaxed attitude on the assumption that he had become an essential part of Dr Mattu’s research activities.
5.	On 21 February 2002, Dr Mattu was suspended from his duties with the Trust.  Dr Mattu alleges that he was victimised and intimidated by the Trust.  On 26 February, the respondents also suspended Dr Mattu from his post as an honorary lecturer.  The result was that Dr Mattu was no longer able to continue with his research and his offices and records were denied to him.  On 29 April 2002, Dr Mattu’s suspension by the respondents was lifted, but he remained and still remains suspended from his duties with the Trust.
6.	The announcement of Dr Mattu’s suspension prompted the respondents to consider the applicant’s position.  On 28 February 2002, they sent him a letter advising him that informal discussions between them and the Trust indicated that when his contract ended on 31 May, further ‘funds are not available to extend the contract beyond that date’.  The applicant knew that, in fact, funds were available in Dr Mattu’s research accounts.  He seems to have assumed that everything would be sorted out, although he was aware that he no longer had right of access to the facilities for research and that Dr Mattu’s research team of four qualified researchers, all of whom were senior to the applicant, were dispersing to other posts and duties.  Furthermore, the applicant had difficulty in contacting Dr Mattu who, until 29 April, when the suspension from his honorary post with the university was lifted, was effectively incommunicado.
7.	Having failed to get satisfactory replies to their oral enquiries, the respondents wrote to the Trust on 2 May 2002 and attempted to get some formal clarification of the applicant’s position.  The Trust replied to the effect that the respondents should make a formal request for the renewal of the applicant’s contract via the chair of their own Department of Biological Sciences.  This communication seems to us to be an extraordinary suggestion when it is borne in mind that the applicant’s researches were conducted for the benefit of the Trust.  We accept that at this time the relationship between the Trust and the respondents was in a process of change, but we think this letter reflects the fact that in the complicated situation arising out of Dr Mattu’s continuing suspension, the trust was anxious to make no decisions or commitments in respect of the applicant.
8.	The applicant was kept informed of the difficulties and uncertainties as to his future.  He contacted Dr Mattu who, on 21 May, wrote to the respondents saying that the Trust’s director of finance had agree that funds for the applicant were available for a further year’s contract and concluding, ‘I appreciate that the university (the respondents) did not precipitate this matter, hence I would be pleased if I could be kept informed if the Trust present any impedance to the monies being released to the university’.  We think that this is an important letter which reflects the reality of the matter, something which the applicant and Dr Mattu, in their evidence, were reluctant to admit.  We accept the evidence of Sarah Foottit, the Trust’s employee who was called to give evidence by this tribunal, and we find as a fact that the ‘funds’ were held in trust by the Trust and that neither Dr Mattu nor the applicant himself had any authority to commit the Trust to future expenditure.  When Dr Mattu had given assurances as to the future before his suspension he had, in our view, ostensible authority to do so and the respondents were entitled to rely and did rely on those assurances.  Once the respondents had knowledge of the suspension, ostensible authority terminated and the respondents were duty bound to obtain valid assurances from the Trust itself.  The Trust, for whatever reason, never gave such assurances.  The outcome was that the applicant’s fixed term contract came to an end on 31 May 2002 and he was dismissed.”

6.	In view of the issues which arose for consideration before us it is important correctly to understand the context for the Tribunal’s findings at paragraph 8.  Their reference to the need for the Respondents to obtain valid assurances from the Trust itself arose from the dispute between the parties below as to Dr. Mattu’s assertion that funds were in fact available for a further year’s contract for the Appellant.  It was not disputed by Mr. Green that the Appellant’s primary case below had been that once Dr. Mattu had asserted that funding was available, the Respondents should have accepted his assertions at face value and should have proceeded in reliance upon them.  This is clear from the Appellant’s letter to the Respondents’ Director of Personnel Services, dated 25 July 2002 (tab 36, page 72g of the bundle) in which he referred to Dr. Mattu’s statement that funds were available, yet “… Despite Dr. Mattu’s clear instructions and declaration of available funds my contract was still allowed to expire on 31st May 2002”.  The Respondents disputed that reliance could be placed on Dr. Mattu’s assertions re funding and the Tribunal preferred the evidence of Sarah Foottit on this point, finding that, after his suspension, Dr. Mattu no longer had authority to commit Trust funds and that the Respondents could properly rely only on assurances as to funding which came from the Trust itself, not from Dr. Mattu.  There is no challenge to this finding in the Notice of Appeal.

7.	After referring, at paragraph 9, to the Respondents’ continued but unsuccessful efforts after 31 May 2002 to secure for the Appellant the Trust’s agreement to a further contract, the Tribunal turned, at paragraph 10, to the law.  The Respondents’ case was that the Appellant’s employment was directly dependent upon funding provided by the Trust and that when the Trust failed to provide assurances that the funding for his future employment was secured, the Appellant became redundant, the Respondents no longer having a requirement for the Appellant to carry out research work.  They also contended that they had acted reasonably in all the circumstances in not renewing his contract.  

8.	In relation to section 98(1) of the Employment Relations Act 1996 and the reason for the dismissal, the Tribunal found at paragraph 10 that the Respondents had no direct interest in the research and that their interest “only arose when the Trust agreed to pay”.  It followed, therefore, that in the absence of such agreement to pay:
“… the Respondents’ requirement no longer existed and the Applicant’s position was redundant and that position is confirmed by the fact that Dr. Mattu’s team has dispersed and the research is no longer being carried out.” 

The Tribunal decided that if they were wrong about that interpretation of the facts then they would: 

“… have no hesitation in saying that the failure by the Trust to commit themselves to pay for an extension to the Applicant’s contract was a substantial reason of a kind such as to justify dismissal of an employee holding the position which the Applicant held.  We conclude, therefore, that the Respondents have discharged the burden on them to show an acceptable reason for the dismissal.”

Alleged errors in relation to these conclusions at paragraphs 7(h) and (i) of the Notice of Appeal were withdrawn at the hearing before us and it was common ground that redundancy was the reason for the Appellant’s dismissal.

9.	At paragraph 11 the Tribunal went on to consider section 98 (4) of the Act, correctly directing themselves to the necessity to determine the fairness of the dismissal having regard to all the circumstances, including the size and administrative resources of the Respondent’s undertaking in determining, in accordance with equity and the substantial merits of the case, whether the Respondents acted reasonably or unreasonably in treating the redundancy situation as a sufficient reason for dismissing him.  At paragraphs 12-14 the Tribunal expressed their conclusions as follows:

“12.	The applicant’s representative, Mrs Donajgrodzka, in her submissions argues that the evidence shows that ample funds were available to finance a further fixed-term contract for the applicant.  She says that it was essentially a failure of communication and the respondents should have pressed the trust to release those funds, or perhaps taken a chance and accepted Dr Mattu’s assurances.  We do not think that this is a fair reflection of the evidence.  In our unanimous view, the respondents did everything they reasonably could to persuade the Trust to commit themselves to releasing those funds, but the Trust effectively refused to do so.  We suspect the Trust’s reason was directly connected with their suspension of Dr. Mattu, although they were careful never to express that reason directly.  Instead, they delayed and prevaricated, presumably hoping to minimise their problems.  In these circumstances, we find that the respondents acted reasonably in not unilaterally extending the applicant’s fixed term contract.  Mrs. Donajgrodzka’s second submission is that even if the respondents were entitled to say that the applicant was redundant, they failed to adequately consult the applicant.  Again, we do not think that this submission is borne out by the facts.  We note that the respondents followed their normal procedures and started by giving the applicant a standard warning of the impending termination of the fixed term contract and inviting him to discuss the matter.  Within two or three days, the applicant spoke to the respondents’ personnel officer, and then attended her office for a meeting where he was told of the respondents’ conversation with the Trust, which indicated that funds were not available.  The applicant, who knew as much as anybody about the funds in Dr. Mattu’s research account, was apparently not particularly concerned.  We think that this was probably because he had been able to fix such problems in the past and thought he would be able to do so again.  The applicant then took advice from Dr. Mattu and had a formal meeting, when he was accompanied by his union representative, with the respondents’ director of personnel.  On 13 May, the respondents gave him formal notice.
13.	Finally, Mrs. Donajgrodzka suggests that the respondents were at fault for not formally offering the applicant any other research position they might have had.  The evidence here is that all such positions were internally advertised and published on their website.  The applicant was aware of that, but was not interested in making any application and he was not qualified in any event to apply for any of the academic posts.  We do not think that the respondents can be reasonably criticised for treating the applicant like a responsible adult, especially when the established custom and practice in the academic world is for researchers to be employed on the recommendation of the particular research supervisor.
14.	We have reached the unanimous conclusion that in all the circumstances of this case, the applicant’s dismissal was fair.  It follows that this application does not succeed and it is dismissed.”

10.	The reference at paragraph 12 to the “normal procedures” followed by the Respondents in relation to consulting the Appellant is a reference to the Respondents’ procedures dealing with Fixed Term Appointments (tab 21-48 of the bundle).  The duty to consult and the procedure to be followed in the case of staff whose contracts are due to end were described as follows:

“I must ask you to ensure that you, or someone you delegate meet with each member of staff whose contract is three months from expiry: the purpose of the meeting is for you to let the person know if the contract is expected to be renewed, or what the position is if no definite outcome is known.
If the contract is not to be renewed, the member of staff must be told of the reasons for the non-renewal.  Please also make them aware that the relevant trade union has been consulted.  In addition you should seek to ascertain the member of staff’s view about the situation, and in particular whether he or she wishes to be redeployed to another post in the University.  If such a wish is made known to you, you should let me know in order that I can arrange for a copy of all vacancies to be sent to the member of staff until the expiry of their contract, and to allow me to investigate the possibility of arranging an interview if the member of staff applies for any particular post.  Please let them know that they must tell me (or a senior member of the Personnel Office) when they apply for a post in the University.
If the contract is not to be renewed, you (or your delegated representative), should meet the person on at least one more occasion prior to the expiry of the contract to confirm the position and discuss his or her view of the situation.  The date of each meeting needs to be recorded; you will probably find it convenient to annotate the monthly lists I will send you.
I should be grateful if you will ensure that questions of career development and counselling are dealt with during the process of consultation.”

In the remaining part of paragraph 12 the Employment Tribunal find that this procedure was followed.  We were taken to the relevant documents appearing in the Respondents’ Chronology, all of which had been before the Tribunal, referring to the various communications between the Appellant and, for the Respondents, Janet Jones, Administration Officer, Personnel Department, and Donald Beaton, Director of Personnel, between February and May 2002, all of which were indicating that the funding for the Appellant’s continued employment was not confirmed by the Trust and that this was being relayed to the Appellant.  Mr. Green did not challenge the fact that all this evidence was before the Tribunal below.

The Issues

11.	Mr. Green challenges the Tribunal’s findings in a number of respects, as follows.  In the course of the submissions from both counsel in this case we were referred to the Chronologies, to a number of documents and to oral evidence which was before the Tribunal.  We had regard in this respect to the witness statements.  Mr. Green submits, firstly, that the Tribunal’s conclusion at paragraph 12 that the Respondents had done “everything they reasonably could” to persuade the Trust to release the funds was a perverse finding or, alternatively, wholly inadequately reasoned.  In support of this submission he relies essentially on the fact that, notwithstanding the anomalous arrangement between the parties, the Respondents were still the Appellant’s employers and were therefore under a duty to treat him fairly at all times.  The Tribunal did not ask themselves what, reasonably, the Respondents should have done in these unusual circumstances but simply found, without explanation, that they did everything they reasonably could.  This finding, he submits, was against the flow of the evidence. They had found at paragraph 6 that Janet Jones had contacted the Trust in early March and then again in early May about the renewal of the Appellant’s contract. This he submitted represented delay and inactivity by the Respondents over a critical period of two months, with the deadline approaching, when they knew that the failure to follow the matter up properly would result in the Appellant’s dismissal.  Mr. Green points to a letter to the Appellant written on 11 October 2002, long after the dismissal, by John Smith the Director of Finance at the Trust (Tab 43 – 77), who stated amongst other things: 

“… Your employment may have continued if the correct application of process and procedures by both the University and the Trust had taken place in a timely manner … this is not therefore primarily an issue of funding.  It is an issue of systems and procedures.  The levels of communication and clarity between the University and the Trust and between the Trust and yourself has not been of an acceptable standard and on behalf of the Trust I offer you an unreserved apology for the situation where you were left with incomplete knowledge.”

12.	Secondly, the Tribunal’s reference at paragraph 7 to the Trust’s reply to the Respondents’ attempt to obtain clarification as to the Applicant’s position is a reference to the email dated 9 May 2002 to Ms. Jones (tab 28-67) in which Janet Powell for the Trust stated:

“Please be advised that the request for contract renewal for Mr. Edward W Needham (and other staff funded by this Trust) should come from the Chair of the Department of Biological Sciences, Dr. Andrew Easton through a letter to Karen Martin (Deputy Director of Personnel.)”

Mr. Green submits that it was clear now what the Respondents had to do, yet the evidence showed both that the Appellant himself had no idea this request had been made and that the Respondents did not submit the formal request sought before the dismissal date.  In these circumstances he submits that the Tribunal’s finding that this communication was “an extraordinary suggestion”, without further explanation, was also perverse.  The Respondents had a duty to progress matters on behalf of the Appellant as their employee and to keep him informed.  If they considered it to be an extraordinary suggestion they should have replied to the Trust saying so.  In any event it is perverse so to describe it given that the Trust, as a public authority, was reasonably asking for a formal request in writing before Trust monies could be released.  In view of the difficulties surrounding Dr. Mattu’s position the formal request required by the Trust in this e-mail could not reasonably be described as “extraordinary”.  Dr. Easton had himself referred in his evidence to the recognised need for greater transparency and formality in the allocation of public funds and for increased scrutiny of their release.  There was also a duty on the Respondents to keep the Appellant informed as to their communications with the Trust, yet there was no finding by the Tribunal as to the extent of that duty; and it is difficult to understand the reasons for the Tribunal’s conclusion.  

13.	Finally, he submits that the Tribunal’s findings that the Respondents did “everything they reasonably could” and that the Trust’s requirement for a formal request from the Respondents was “an extraordinary suggestion” do not fit appropriately with their finding at paragraph 8 that the Respondents were duty bound to obtain valid assurances  from the Trust, as opposed to Dr. Mattu.  It was essential in the circumstances for the Tribunal to explain why the Trust did not give such assurances, and in particular to ask themselves whether any default of the Respondents played a part in that failure.  The Tribunal simply found that the Trust, for whatever reason, never gave such assurances.  In conclusion Mr. Green submits that the Tribunal’s Decision was perverse or alternatively does not pass the test identified for adequacy of reasoning by the Court of Appeal in the well known case of Meek v City of Birmingham District Council [1987] IRLR 250 and more recently in the case of Tran v Greenwich Vietnam Community Project [2002] ICR 1101.

Our Conclusions

14.	It is not in dispute that the Tribunal correctly directed themselves as to the provisions of section 98 (1) and (4) of the 1996 Act, in deciding both the reason for and the fairness of this dismissal.  In seeking to persuade us that the Tribunal’s Decision was perverse Mr. Green fairly acknowledged that he faced an uphill task.  The assessment of evidence, both oral and documentary, and the determination of the facts and the conclusions to be drawn from them are pre-eminently the tasks of the Employment Tribunal.  This Appeal Tribunal, as it has frequently stated, is at an obvious disadvantage in revisiting the facts and in being asked to interpret evidence, in particular documentary evidence, without the benefit of hearing all the evidence adduced in the case.  As the Court of Appeal observed recently in Yeboah v Crofton [2002] IRLR 635, there is an increased risk in such circumstances that the Appellate Court’s close examination of the evidence and of the Tribunal’s findings of fact may lead it to substitute its own assessment of the evidence and overturn the facts when the picture before them is incurably incomplete (see paragraph 12). A perversity appeal should only succeed where “an overwhelming case” is made out that the Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached.  Further, in Stewart v Cleveland Guest (Engineering) Limited [1994] IRLR 440, the Employment Appeal Tribunal stated that:

“What matters is the substance of the Tribunal’s decision, looked at broadly and fairly, to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case.”

15.	With these principles firmly in mind we arrive at the following conclusions.  Firstly, in relation to the Respondents’ duty to this Appellant, it is clear from the Tribunal’s Decision, and it appears to have been common ground below, that primary responsibility for ensuring that adequate steps were taken to secure further funding and thus to secure the Appellant’s continued employment always lay with Dr. Mattu.  The Appellant worked directly under the supervision of Dr. Mattu and the Trust derived direct benefit from the research which the Appellant carried out for him.  The benefits to the Respondents from this arrangement were limited to those identified at paragraph 3 of the Tribunal’s Decision.  In such circumstances we accept Mr. Tabachnik’s submission that the Respondents’ duty towards this Appellant was no more than a general duty to carry out the necessary administrative tasks for the creation of a further contract with the Appellant, once funds were confirmed by the Trust as available for that purpose, and not to obstruct the process in any way.

16.	The evidence of Dr. Easton confirmed this point, referring at paragraph 3 of his witness statement to it being “up to academics themselves to ensure there is enough funding for their own research”.  In addition item 10 in the Respondents’ Chronology refers to the Appellant’s acceptance during his oral evidence that it was Dr. Mattu’s responsibility to secure funding for a further contract and this is not disputed.  Dr. Easton also referred at paragraphs 9-11 of his witness statement to the new, more formalised procedures relating to the release of funds and the Trust’s responsibility to inform Dr. Mattu about them, as follows: 

“9.	There is some further background which is integral to the issue of Dr. Mattu being responsible for securing further funds for Ted Needham’s position.  From around November 2000 onwards, the Department has been carrying out a financial review of all of its research expenditure.  I have been involved in this process from the outset.  Towards the end of 2001, the Trust indicated that it also was revising its own internal procedures on how it wanted to release funds to various bodies such as the University.  There was therefore a meeting set up between senior members of the Department and of the Trust, which took place in January 2002.  The Trust explained it would require its senior medics to make formal applications for funds, broken down into four financial categories.  This accorded with the Department’s and the University’s wish to make the whole process of receiving funds from the Trust more transparent, with clear lines of responsibility as to whom the University should refer all financial matters.
10.	It was agreed that a new procedure would be in place for the financial year starting April 2002.  Sarah Foottit from the Trust was to do all the necessary work within the Trust to ensure that the paperwork was set up.  The Trust also agreed that it would be responsible for communicating the new procedures to its staff.  However, both I and one of my colleagues involved, Professor Lord, agreed that we would speak with the Honorary Clinical Academics about the new procedures in the first week or so following that meeting, provided they were present on site within the Department.  Integral to the arrangements was that it was the Trust’s responsibility to ensure that its staff affected by the new measures knew about the new procedures.  This was important not least because the University had no formal way of contacting the honorary appointees who, like Dr Mattu, were infrequent visitors to the Department.
11.	As it happened, out of the five honorary appointees from the Trust, Professor Lord and I managed to contact three or four of them, but one or two were away.  One of those away was Dr. Mattu.  I assumed that the Trust would be contacting all honorary staff about the new application procedures, as it was doing for its other staff.  It subsequently became apparent that the Trust had not informed Dr Mattu of the new procedures.  I do not know why there was a delay, although I suspect it may have been because Dr. Mattu’s request for further funding was the first letter to be received since the new procedures were in place.”

17.	This important evidence was, as we understand it, not challenged below and, in our judgment, it explains why the Respondents took the course they did and, more importantly, why the Tribunal concluded as they did.  The Trust had the responsibility to tell Dr. Mattu about the new procedures and the Respondents’ expectation was that they would do so.  In late April or early May, as is clear from the Chronology (item 12) Ms. Jones advised Dr. Mattu that he should contact Dr. Easton for further details as to what was required from him.  However the matter dragged on due, as the Tribunal found, to the Trust choosing to prevaricate, hoping thereby to minimise their problems; and the Trust did not draw the new procedures to Dr. Mattu’s attention, as the Respondents had expected.

18.	The letter of 11 October 2002 containing the extract upon which Mr. Green relies (see paragraph 11 above) was a response to a wide-ranging grievance raised internally by the Appellant on about 22 May 2002.  A number of different issues quite apart from his employment status had been raised by the Appellant, one of which concerned “the handling of Dr. Mattu’s research accounts and the financial information communicated to the [Respondents] by the Trust”.  The extract referred to must be seen in context.  Immediately prior to this extract the letter stated, amongst other things, as follows (tab 43-76): 

•	“Until earlier this year, the University’s project and fixed term contract renewal procedure was that the Researcher (in this case, Dr Mattu) would write a letter to the University requesting that a new fixed term contract for the individual be established.  Since the new calendar year, the University has formalised this procedure in that a formal proposal detailing project title and costs including, salary, consumables, equipment and ancillary costs must be forwarded to the University by the Researcher.  The University then considers the project on the basis of project and funding appropriateness but implicitly assumes that proposed funding sources will be available.  Following completion of the requisite financial regulation form, a request is sent from the University to the Trust requesting that the Trust agree to the release of the money (research funding will have been paid directly to the Trust).
…
•	
…Changes to the way in which research funds were accounted for within the Trust (i.e. the introduction of exchequer accounts) was entirely appropriate, the changes being undertaken in line with Department of Health guidance to ensure future coterminosity of NHS Trust and University accounting procedures.  Whilst it was acknowledged by Ms Footitt that there had been a general failure by the Trust to communicate potentially confusing changes to accounts for research funds and the implications of such changes with those directly affected by the changes, oral evidence from you made it clear that you were aware of these changes.”

There was, therefore, evidence before the Tribunal that the Appellant knew what the position was throughout; and they found expressly at paragraph 12 that he was “not particularly concerned” about it.  

19.	Further, the letter of 4 February 2002 from the Trust’s Director of Finance, Paul Elkin, to Dr. Mattu (tab 22-52), written just two to three weeks before Dr. Mattu’s suspension, presents a picture of near agreement between them on funding issues for the coming year.  This can be contrasted with the position after suspension, when the evidence to which our attention was directed can reasonably be said to suggest a distinct lack of co-operation on the Trust’s part and a failure to tell the Respondents whether funding for the Appellant’s post will be made available.  There was therefore evidence before the Tribunal to enable them to conclude, in considering section 98(4) and the fairness of this dismissal, both that the Trust was deliberately delaying and prevaricating and that the Respondents had done all that they reasonably could in those circumstances.  This, in our judgment, is what this Tribunal decided.  

20.	The evidence to which we refer includes the following.  The memorandum from Ms. Jones to the Appellant dated 28 February 2002 (tab 23-62) informed him that the Trust had “… indicated that funds are not available to extend the contract beyond [31 May 2002]” and that “… at this point in time the University cannot offer you further employment after [that] date.”  There was also an acknowledgment that “the University is under an obligation to ascertain your view of this situation, to keep you informed and to make sure that you have a clear understanding of what is going on.  However, if you would like to discuss the matter further or require any information please contact me at any time.”  A copy of this memorandum was sent by Ms. Jones to Paul Elkin at the Trust on 1 March 2002 (tab 25-64), thereby informing the Trust as to what the Respondents had told the Appellant about his position.  There is no evidence that, after receipt of this communication, the Trust ever replied or corrected Ms. Jones’ impression that further funds would not be made available.  In such circumstances the two month “delay” or period of inactivity by the Respondents between March and May 2002, criticised by Mr. Green, can be reasonably regarded as a period during which the Trust failed to take any steps to correct the impression Ms. Jones had that funds would not be available. 

21.	In her letter to Mr. Elkin of 2 May 2002 (tab 27-66) Ms. Jones raised the matter again as follows: 

“Mr Needham has been employed by the University as a Research Assistant for Dr. Raj Mattu since August 1st 1997. His post is funded by Dr. Mattu from his endowment funds held at the Trust. Mr. Needham has had a series of short term contracts, the latest of which expires on May 31st 2002.
Mr. Needham has informed me that Dr. Mattu intends him to continue the research currently being undertaken for a further year. However, he is unable, under the present circumstances, to obtain the usual written confirmation from Dr. Mattu that the funds are available for this.
I would be grateful if you would look into the matter and confirm whether or not there is funding available to the University to extend Mr. Needham’s contract. A year’s extension is costed at £25K. If there is a lesser amount available, please let me know so that we can offer Mr. Needham a shorter contract. If there are no funds available, Mr. Needham would thus be redundant, in which case the University must proceed accordingly as soon as possible.”

22.	On 9 May the Appellant’s evidence was that he had met Mr. Beaton (Director of Personnel with the Respondents) when Mr. Beaton suggested that the Appellant should ask Dr. Mattu to “… contact Professor Andrew Easton … and the Trust for confirmation of funding” (witness statement at paragraph 40).  On the same date Janet Powell’s email of 9 May to Ms. Jones (tab 28-67) advised that the request for contract renewal for the Appellant should be made formally by Doctor Easton.  It seems to us that the Tribunal were entitled in the circumstances to regard this as “an extraordinary suggestion”.  What was regarded as extraordinary was that this was in fact the only step taken by the Trust at this time; and that, in a situation where all the Appellant’s work was being carried out for the benefit of Dr. Mattu and themselves, this had been the only communication from the Trust as to the Appellant’s position and future employment.  The Tribunal were entitled on the evidence to conclude that the Trust was prevaricating and deciding not to commit itself in any way and to regard this conduct as extraordinary.  It certainly cannot in our judgment be categorised as a perverse conclusion.

23.	On 21 May 2002, and therefore before the deadline expired, Dr. Mattu wrote a letter to Doctor Easton which was copied to Paul Elkin (tab 30-69).  Referring to a detailed review of his funds in December 2001 Dr. Mattu stated:

“It was very clear and agreed with the Director of Finance that there are more than adequate funds to support the renewal of all contracts of my research team, including Mr. EWA Needham.  You will therefore understand my surprise at what is currently taking place.
I believe that, as is usual, Janet Jones is being most helpful, but her options are limited.  I would be most grateful if you could therefore help in ensuring that the contract of Mr Needham is renewed as per usual for a further year, from 31st May 2002.  I am disturbed by the future and career of Mr Needham being threatened in this manner and disappointed that he is being unnecessarily subjected to anxiety and distress, when I can confirm that the funds are definitely identified and available for the contract to be renewed.
I appreciate that the University did not precipitate this matter, hence I would be pleased if I could be kept informed if the Trust present any impedance to the monies being released to the University.  I thank you in anticipation of your help.”

There is no evidence that Mr. Elkin took any action following receipt of this letter.  Further the Tribunal regarded this (see paragraph 8 of their Reasons) as an important letter, giving a clear indication of where primary responsibility lay and which reflected “…the reality of the matter, something which the Applicant and Dr. Mattu in their evidence were reluctant to admit.”

24.	On 28 May Dr. Easton wrote to Dr. Mattu (tab 31-71), who was well aware of the deadline at this stage, as follows:

“I am writing in response to your letter dated 21st May regarding the reappointment of Mr E. Needham.  To clarify the situation with respect to funding available for continuing Mr Needham’s contract, we have no way to confirm the availability of funding held at the Hospital and without such confirmation, and subject to other details considered below, we are not in a position to extend Mr Needham’s contract.  Following consultation with the Hospital at the beginning of this year it was agreed that from 1st April of this year, coinciding with the beginning of the financial year, we would put the funding agreements between ourselves and the Hospital, or staff at the Hospital using private funds, on a more organised footing.  This is because the previous arrangements did not provide sufficient accounting rigour for us to manage the resources appropriately.  Since that date all arrangements have required a financial statement in advance of establishing the agreement.  This statement must clearly identify the costs associated with the project, divided into standard categories of staffing (salaries), consumables and equipment.  In addition, if the project intends to use central Departmental facilities such as DNA sequencing these would have included on an agreed costing basis.  The timeframe of the project must also be clear and extensions beyond the originally agreed time would require the same process to be completed for any extension(s).  The Department, through the Chairman will then approve the project with the agreed funding.  This is the system that has operated for many years with all other funding that we have, including that from charitable sources, and allows us to conform to the accounting practices in the University, which have been changing over recent years.  We obviously also need a clear statement that the funding to cover all of the costs is available over the term of the project.  To date this has not been a problem for people involved in such projects to provide.  I should make it clear that we do not intend to make a scientific assessments for the project as that would clearly be inappropriate.  If you are able to fulfil this procedure we will be able to move forward in Mr Needham’s re-appointment.  I appreciate that this has consequences for Mr Needham but the Department must operate its financial matters on a level and clear footing.
“With regard to the other issues that you raise in your letter, I can enlighten you only a little.  Professor McCrae became involved in this, with the best of intentions, only at the request of Mrs Jones who was anxious to try to resolve the situation.  As I indicated above, we have no way of verifying what money is held at the Hospital and I have to act accordingly.  I hope we can sort these matters out quickly.”

It can reasonably be concluded that at this point the Respondents were explaining to Dr. Mattu what had to be done, a task which should already have been carried out by the Trust and which the Respondents considered would have been carried out by them.  There was no evidence, however, that Dr. Mattu submitted anything before the deadline of 31 May.  In his letter to Mr. Beaton of 25 July 2002 (tab 36-72g) the Appellant, referring to his meeting with Mr. Beaton on 9 May, stated:

“You suggested that Dr Mattu should contact the Acting Chairman of Biological Sciences, Dr AJ Easton, and raise the matter with the Trust.  Dr Mattu wrote to Dr Easton on 21st May 2002 (enclosed) and clarified that he had always declared his wish for my contract to be renewed and that funds were available for this.  On 29th May 2002, he also instructed the Trust (letter enclosed) to urgently notify the University that there were identified funds and to ensure renewal of my contract of employment with the University.  Despite Dr Mattu’s clear instructions and declaration of available funds, my contract was still allowed to expire on the 31st May 2002.”

This evidence seems to us to be also relevant to the Tribunal’s finding that, despite a personal request from Dr. Mattu, the Trust had decided to dig their heels in, to make no decision, and to allow the deadline to expire.

25.	In the circumstances, therefore, we consider that once the Appellant’s central argument had failed (that the Respondents should have accepted Dr. Mattu’s assurances as to funding at face value) there was ample evidence entitling the Tribunal to conclude that the Trust had prevaricated and that the Respondents had done all that they reasonably could in the circumstances.  The Respondents had advised the Appellant in early May that Dr. Mattu needed to contact Dr. Easton in circumstances where the evidence showed that the Appellant knew that Dr. Mattu had primary responsibility for securing the release of further funds.  Further it was common ground below that the Respondents anticipated that the Trust would be advising Dr. Mattu as to what was now required procedurally in order for the funds to be secured.  Dr. Easton himself then advised Dr. Mattu as to what was required.  Dr. Mattu then made a personal request to the Trust to notify the Respondents urgently that funds were available, which request was ignored by the Trust.

26.	Mr. Green sought to persuade us, in his reply to Mr. Tabachnik’s submissions, that the evidence to which we have already referred together with other evidence in the case was not only capable of bearing a different interpretation, but should have been so interpreted by the Tribunal.  Such submissions, ably presented as they were, indicate the dangers inherent in a perversity challenge to an Employment Tribunal’s findings.  Mr. Green in our judgment came nowhere near to approaching the overwhelming case that must be shown in order for an Appellant to succeed in such a challenge.

27.	We therefore turn to his alternative submission that the Tribunal’s conclusions were inadequately reasoned, which also fails for the following reasons.  As Mr. Green fairly accepted, whilst some of the matters which were common ground between the parties below were not set out extensively in the Decision (and it would probably have been preferable for them to have been referred to) there was no requirement that they should be and no error of law arises from their omission.  For the purposes of an appeal they are clearly to be taken as part of the reasoning.  The Tribunal’s reasons for their decision are primarily addressed to the parties and, in setting them out, the Tribunal can properly have regard to the facts which are within the parties’ own knowledge.

28.	In the present case, once those matters which were common ground are factored into the Decision the Tribunal’s findings in relation to the disputed issues and their reasoning in support are in our judgment clear.  This is certainly not a case where it can properly be said that it is not possible to understand how the Tribunal arrived at their conclusions on the facts found.  It seems to us that once the Tribunal had rejected the Appellant’s arguments it is clearly implicit from their decision that they considered the Respondents’ duty towards this Appellant in the unusual circumstances of this case to be a limited one.  Mr. Green did not suggest that the Appellant had alleged below that the Respondents failed to take certain, specific steps and that the Tribunal failed to address those allegations and make findings upon them.  Rather he submitted, as set out above, that their conclusions were perverse and/or inadequately reasoned which submissions, for the reasons we have given, we do not accept.  When expressing their conclusions at paragraph 12 the Tribunal were clearly relying on their earlier findings in paragraphs 6 to 9 and these were findings which they were entitled to make on the evidence.  Their conclusions are in our judgment adequately reasoned.  In the circumstances this appeal must therefore be dismissed.