THE HONOURABLE MRS JUSTICE SLADE DBE
1.
The Bakers Food & Allied Workers Union, the Respondent, appeals from
two Judgments of an Employment Tribunal on a claim for unfair dismissal brought
by Mr Ippoma, the Claimant. Mr Ippoma was one of two former employees
whose claims were heard together. Mr Ippoma was the Second Claimant but in
this judgment we refer to him as “the Claimant”. The two Judgments under appeal
are a remedies Judgment sent to the parties on 13 January 2012 (the
Remedies Judgment), and a costs Judgment sent to the parties on
30 March 2012 (the Costs Judgment).
2.
A Notice of Appeal from the Judgment on liability sent to the parties
initially on 11 November 2011 and corrected and sent in corrected version
on 6 December 2011 (the Liability Judgment) was amended by permission of
HHJ Peter Clark on 16 January 2012. Ms Gower for the Respondent
does not challenge the finding of unfair dismissal in that Judgment but
challenges paragraph 21.1 in that Judgment, which is relied upon by the
same Tribunal in their Remedies Judgment and in their Costs Judgment. She
rightly recognises that an appeal does not lie against the reasoning in a
judgment where the order made is not appealed. Such an appeal would be
academic. Accordingly, an appeal against the Liability Judgment is not
pursued. However, paragraph 21.1, which is a key part of that Judgment,
was relied upon in the Remedies Judgment and in the Costs Judgment, and
incorporated in those Judgments to arrive at the orders which are under appeal.
Outline facts
3.
The Claimant brought claims against the Respondent of unfair dismissal
and victimisation under the Race Relations Act 1976. He initially also
brought a complaint of race discrimination. His claim of unfair dismissal was
heard together with that brought by a Miss Christou. Miss Christou
was employed on 1 June 2004, and dismissed on
31 March 2010. She was the organising secretary of the Respondent. The
Claimant was employed on 1 June 2002 and was also dismissed on
31 March 2010. At the time of his dismissal he was a project manager
in the Respondent’s learning services project. This was an education project
which provided training to trade union members. The funding for the project
came from a third party, the Union Learning Fund. The fund was administered by
Union Learn on the Government’s behalf.
4.
The Employment Tribunal found that at the material time there were six
project workers working for the Respondent in the Union Learning Fund operation
and a project manager. Funding for the project had been provided by agreements
lasting two years with Union Funding. Funding had been provided up to
1 April 2010. As for future funding, the Employment Tribunal set out
evidence given relating to a number of meetings between the Respondent and Union
Funding. A number of observations and findings were made by the Tribunal in
their Liability Judgment in relation to the progress of those discussions and
the role played by the Claimant in them.
5.
It appears that the Union Funding project had not been conducted by the
Claimant to the satisfaction of Union Funding. However, the Employment
Tribunal held in paragraph 15.7 that the Tribunal was satisfied that when
the criticism from Union Funding became apparent it did come as a considerable
surprise to Mr Marino, the General Secretary.
6.
So far as the bidding for further funding for the two years from
1 April 2010 is concerned, in paragraph 15.9 of the Employment Tribunal’s
Judgment it is recorded that on 10 December 2009 Mr Marino wrote to the
Claimant saying that he had been getting complaints from his Executive
Committee that the bid documentation was always presented to them very late in
the day, giving them little time to consider it and make relevant changes. It
appears that on 16 December 2009 the Respondent approved bid documentation
which had been submitted for approval by the Claimant. When that documentation
was submitted to Union Funding it was rejected. Further attempts were made to
obtain funding and the Claimant continued to be involved in the bid process.
The Tribunal record that on 3 February 2010 the Claimant:
“[…] attended a meeting with Union Learning Fund in Liverpool to try to resolve matters. He had received from them seven recommendations as to
how the project might be acceptable, which included reducing the project
management on the matter; combining the finance and administrative posts; and
reducing the number of project workers and generally downsizing the project.”
7.
On 4 March 2010 a meeting took place with Union Funding at Congress
House at which the Claimant was present. Following that meeting, a redraft of
the Respondent’s proposal was made. The Employment Tribunal set out an exchange
of emails between Union Learning and the Respondent, which track the progress
of the bid and its eventual success. It appears that on
29 March 2010 the General Secretary wrote to the fund providers,
saying:
”[…] I trust the reduction in staff into one project manager and
five project workers and the holding of pay to the same as the old bid shows
our commitment to meet Union Learning concerns in this area.”
On 30 March the response came to the General Secretary of
the Respondent that the funders were now in a position to approve the project
bid in line with “the changes submitted yesterday”.
8.
As is recorded in paragraph 15.16 of the Tribunal’s Judgment, at an
earlier stage the funders had suggested to the Respondent, that “rescindable
termination notices should be given” to the staff. In accordance with those
rescindable termination notices, the employment of both the Claimant and
Miss Christou came to an end on 31 March 2010. The Claimant was
invited to attend an interview for the post of Project Manager after that
date. He did not attend or apply for the post. Miss Christou was invited
to attend an interview for the post of Project Worker. She too did not attend.
9.
The Claimant presented a claim for unfair dismissal on
28 June 2010 in which he also made a complaint of race
discrimination. In his ET1, he alleged:
“7. Given that funding had been secured there was in fact no
redundancy situation. The Claimant’s position was not redundant as there was
no diminution in the Respondent’s need for employees to carry out the kind of
work he was employed to do at that workplace.”
10.
In paragraph 8 the Claimant set out a number of procedural failures
by the Respondents and their failure to consider or provide alternative
employment opportunities and/or training so that he might be redeployed to
another position. In paragraph 9 the Employment Tribunal held:
“In the circumstances the Claimant contends that he was unfairly
dismissed.”
11.
The Claimant added in his ET1:
“10. The Claimant is currently standing to be the General
Secretary of BFAWU. The election is due to commence on 12th July 2010
and the result announced after 9th August 2010.
[…]
12. It is the Claimant’s primary case that he was unfairly
dismissed for the reasons set out above. Further and/or alternatively the
Claimant will contend that he was made redundant not for the reasons specified
by the Respondent, but because of an underlying desire to frustrate the
Claimant’s campaign to become General Secretary of the Union. The Claimant
will contend that he would not have been made redundant had he not stood as a
candidate for election as General Secretary.”
The Claimant also presented a victimisation claim under the race relations
legislation.
12.
The Claimant withdrew his claim of race discrimination. His claim of
unfair dismissal was heard with that of Miss Christou on dates between 18
and 25 July 2011. There were three hearing days, other days being
occupied by reading and deliberation by the Tribunal. The Tribunal determined
that the victimisation claim should be heard at a later date.
The Liability Judgment
13.
The Employment Tribunal held that Miss Christou’s dismissal was
unfair. Her post was redundant but suitable alternative employment as a
Project Worker was available and she was not offered this post. The Employment
Tribunal held that the Claimant was unfairly dismissed. It was held that there
was no redundancy affecting the Claimant. There is no appeal from the finding
of unfair dismissal and no challenge to the conclusion that his post was not
redundant.
14.
At paragraph 21.1 the Employment Tribunal made observations which
are at the heart of this appeal:
“21.1 So far as the second claimant is concerned, the tribunal
is of the view, on the findings of fact found by the tribunal regarding the history
of the funding, that funding was available for 2010/2011 at 31 March 2011,
as it had been on previous occasions and that we regret to say that this was
merely a ruse by the first respondent. It was quite obvious when we have
extracted the relevant emails that Union Funding had made it quite clear to the
first respondent that payment of staff would occur from 1 April as it had
on previous occasions. There was no redundancy situation in relation to the second
claimant’s job. The project manager role for 2010/2011 would be exactly the
same as the project manager role carried out by the second claimant up to 31
March 2011. Union Funding had specifically guaranteed the payments in
Catherine McClennan’s email on 31 March 2010 at 9.51.
21.2 In those circumstances we find that Second Claimant was
also unfairly dismissed.”
The Tribunal went on to hold that there could be no contributory
fault by either the Claimant or Miss Christou.
15.
Another material finding made by the Employment Tribunal was in relation
the Claimant’s suspicion or complaint that he may have been dismissed because
he was running for the post of General Secretary of the union. At
paragraph 14 the Tribunal observed:
“It is also important for the purposes of this Judgment to say
that there was a relevant background to these complaints, namely the election
of a new General Secretary. Mr Marino was coming up for retirement. The
Second Claimant was a candidate to be General Secretary as was Mr Draper,
whose unofficial campaign manager was the Second Respondent. It should also be
mentioned that, because the election is inextricably linked with the
victimisation claim, the Tribunal will not make any relevant findings of fact
in that regard either.”
16.
The victimisation claim was dismissed in a decision to the parties on
13 January 2012. At paragraph 14 the Employment Tribunal rejected
the Claimant’s evidence regarding victimisation and held that they were driven
to the conclusion that the allegation of victimisation was false and that the
Claimant did not make this allegation in good faith. The Tribunal held that
the race discrimination claim, which was relied upon in the victimisation claim
as the protected act, was not such an act because the claim was made not in
good faith.
17.
The Liability Judgment, having initially been promulgated on
11 November 2011, did not include the passage in paragraph 21.1
relating to ‘ruse’. The Employment Tribunal sent out a corrected judgment on
6 December 2011 in which the passage in 21.1 appeared as it is in the
Judgment before us. It included the word ‘ruse’. The remedies hearing started
on 16 November 2011. It is apparent from the Remedies Judgment that
an issue arose as to the meaning of ‘ruse’ in the Tribunal’s Liability Judgment.
It may well be that this was because the word ‘ruse’ was used orally by the
Employment Tribunal but at the time of the remedies hearing in
November 2011, it was not in the original Liability Judgment and the
corrected Judgment had not yet been circulated.
18.
In paragraph 4 of the Remedies Judgment, it is stated:
“Ms Gower, on behalf of the Respondents, put to the
Tribunal alternative meanings in relation to the Tribunal’s comments that we
felt the whole exercise of dismissing the Claimant was a ruse. If that part of
the Tribunal’s oral Judgment (unfortunately excluded from the written reasons
but now included under a certificate of correction) was unclear, the Tribunal
is now confirming that the Tribunal concluded this was an invented redundancy
situation, deliberately created by the First Respondent to get rid of the
Claimant, who at the time was fully aware that there was no redundancy because
the funding had in fact been guaranteed by Union Learning. That being the
case, we now turn to consider compensation.”
19.
At the remedies hearing the Respondent advanced the argument that the
Claimant had failed to mitigate his loss because he had not responded to an
invitation to be interviewed for the post of Project Manager. The Employment
Tribunal rejected that argument. They developed their reasoning for this
conclusion in paragraph 3 of the Judgment:
“Our reasoning is, first of all, that it is quite clear to the tribunal
that there has been a total breakdown in trust and confidence between the claimant
and the senior figures in the first respondent and, second, we cannot see how
the claimant could possibly have felt that he would be treated fairly in the
circumstances that had happened to him at that time. We take into account, of
course that the allegations of the second and third respondent had not occurred
at that particular time. We find that it has not been shown by the first respondent
that the claimant did act unreasonably in turning down the job offer.”
It is plain from that paragraph and from paragraph 4 that
this Employment Tribunal was relying on its finding made in the Liability
Judgment at paragraph 21.1 that the exercise of dismissing the Claimant
was a ruse. The Tribunal amplified their reasoning in paragraph 21.1 by saying
that they had concluded that this was an invented redundancy situation.
20.
The Employment Tribunal awarded a compensatory award of the statutory
cap, namely £63,500 together with a basic award. The hearing took place on 16
to 18 November 2011 and the judgment sent to the parties on 13
December 2011. On 16 December 2011 a review application was made on
behalf of the Respondent. The reasons for the application were stated to be as
follows:
“The key factual finding that underpinned the finding of unfair
dismissal in Mr Ippoma’s case was that there had been a ‘ruse’ to get rid
of him. The Respondent considers that it is unable adequately to identify or
understand the reasons for this finding as it is not adequately explained by
reference to the evidence before the Tribunal.”
The application for review was rejected by the Employment
Tribunal by a decision sent to the parties on 16 January 2012. The
Employment Tribunal said at paragraphs 3 and 4:
“3. The basis of the review application is that the Judgment
does not comply with the authority of Meek v City of Birmingham District Council [1987] IRLR 250.
4. The Tribunal is satisfied that the Judgment as a whole (and
in particular the whole of paragraph 21.1) is Meek compliant.”
21.
The Tribunal then considered applications by the Respondent for costs
against the Claimant and by the Claimant for costs against the Respondent. The
Claimant’s victimisation claim had been dismissed and his race discrimination
claim withdrawn. His unfair dismissal claim had succeeded. The Employment
Tribunal awarded the Claimant costs against the Respondent in the sum of
£6,600. At paragraph 12 of the Reasons, the Employment Tribunal held:
“We do not consider the conduct of the First Respondent was
unreasonable(sic) and the Tribunal has considered it appropriate to exercise
its discretion to make an award of costs against the First Respondent in favour
of the Second Claimant. In particular we refer to paragraph 21.1 of our
Judgment sent to the parties on 6 December 2011.”
Submissions of the parties
22.
Ms Gower submitted that the basis of the Remedy Judgment and the
Costs Judgment is the conclusion expressed by the Employment Tribunal at
paragraph 21.1 of the Liability Judgment that the dismissal of the
Claimant for redundancy was a ruse. She said that conclusion, which was at the
heart of both Judgments under appeal, does not give the parties sufficient reasons
to enable them to know why the redundancy was held to be a ruse. The basis for
the decisions is simply not Meek compliant. This point loses
nothing by its simplicity.
23.
Further or alternatively, it was said that the conclusion under
challenge, namely that in paragraph 21.1 of the Liability Judgment, was
perverse. A number of reasons were given to support that contention. However,
Ms Gower very fairly and properly, pointed out that by reason of the
inadequacy of the reasoning for the conclusion under challenge, it was somewhat
difficult to analyse how it was perverse. That difficulty illustrates the
defect in the reasoning supporting the important finding at
paragraph 21.1.
24.
Mr Salter, for the Claimant, contended that on a fair reading of
the Employment Tribunal’s Judgment in the liability hearing, there was
sufficient evidence to support their conclusion that the reason given for the
dismissal, alleged redundancy, which was found not to be such, was a ruse.
Importantly, he points out that there was no redundancy situation. At the time
of the dismissal it was known not just by the Respondent but by the Claimant
himself that funding would be available for the following two years going
forward and that the post occupied by the Claimant was not redundant.
25.
Mr Salter also referred to other facts set out by the Tribunal in
particular those which related to criticism of the way in which the Claimant
performed his job. He suggested that it was implicit in the Tribunal’s
findings that the purported redundancy dismissal was, in fact, a dismissal to
get rid of an employee who it was thought was not performing satisfactorily.
Discussion and conclusion
26.
It is well established that an Employment Tribunal is required to give
reasons for their decision. Parties must know why they have either won or
lost. The case of Meek v City of Birmingham District Council
[1987] IRLR 250 is so well known that Meek has almost become an
adjective in the lexicon of employment lawyers so it is that it is said that a
Judgment is not Meek compliant. However, since this attack is at
the heart of the appeal, it is worth setting out the passage in Meek
on which reliance is placed and which is particularly apposite in this case.
In paragraph 8 Bingham LJ held:
“It has on a number of occasion been made plain that the
decision of an Industrial Tribunal is not required to be an elaborate
formalistic product of refined legal draftsmanship, but it must contain an outline
of the story which has given rise to the complaint and a summary of the
Tribunal’s basic factual conclusions and a statement of the reasons which have
led them to reach the conclusion which they do on those basic facts. The
parties are entitled to be told why they have won or lost. There should be
sufficient account of the facts and of the reasoning to enable the EAT or, on
further appeal, this court to see whether any question of law arises, and it is
highly desirable that the decision of an Industrial Tribunal should give
guidance both to employers and trade unions as to practices which should or
should not be adopted.”
27.
At the heart of the appeals against these two decisions is the finding
by the Employment Tribunal in the Liability Judgment at paragraph 21.1
that the dismissal of the Claimant asserted to be for redundancy, was, “Merely
a ruse by the First Respondent”. The Employment Tribunal found that there was
no redundancy situation in relation to the Claimant’s job. In those circumstances,
as the Respondent had not established a reason for dismissal within the Employment
Rights Act 1996 section 98(1)(b) the Employment Tribunal found that the
Claimant had been unfairly dismissed. Rightly there was no challenge to that
conclusion by the Respondent on appeal.
28.
The Employment Tribunal relied upon the finding that the exercise of
dismissing the Claimant for alleged redundancy was a ruse to conclude that
there had been a total breakdown of trust and confidence between the Claimant
and the Respondent and therefore that the Respondent had not shown that the
Claimant acted unreasonably in turning down their offer of the job.
Accordingly they made no finding that he had failed to mitigate his loss.
Further, the Employment Tribunal relied upon their finding in
paragraph 21.1 to conclude that the conduct of the Respondent was
unreasonable. It was on this basis that the Employment Tribunal exercised
their discretion to order the Respondent pay to the Claimant costs in the sum
of £6,600.
29.
The finding that redundancy as the reason for dismissal was not
established is not challenged. Such a finding leads to a finding of unfair
dismissal. But the finding of ‘ruse’ goes further than this. What was the
‘ruse’ and what was the improper motive behind the decision to dismiss? Why
was the Claimant dismissed? These are important questions which are not answered
in the Employment Tribunal’s Judgment. In our judgment, they are necessary
questions to be asked and answered to support the conclusion expressed by the Employment
Tribunal that the dismissal for purported redundancy was a ‘ruse’. The
fundamental decision of the Employment Tribunal that the dismissal for
purported redundancy was a ‘ruse’ is not compliant with the requirement to give
proper reasons for a decision. The Judgment on remedy and on costs depends
upon the finding of ‘ruse’ in the Liability Judgment. Accordingly, in our
judgement, neither the Remedy Judgment nor the Costs Judgment is compliant with
Meek in this regard. The appeal is allowed on this ground.
30.
Turning to the second ground of appeal, perversity. Ms Gower
rightly acknowledged the difficulty in advancing this ground because the
Employment Tribunal did not identify the basis for their conclusion that the
purported redundancy dismissal of the Claimant was a ruse. Ms Gower
referred to a number of other matters on which she relied to advance the
perversity ground of appeal. However, having regard to the fact that we are
allowing the appeal on the Meek ground, it is not necessary to
consider the perversity ground. Not only is it not necessary but it is also
not possible to consider and properly decide the perversity ground given the
absence of reasoning on the point at issue in this appeal.
31.
This matter is to be remitted to a differently constituted Employment
Tribunal. We will invite final consideration by the parties of the terms of
that remission. In directing that the matter goes to a differently constituted
Employment Tribunal. We have in mind, the unreported review of the judgment in
Sinclair Roche & Temperley v Heard
[2004] IRLR 763 in EAT/0637/05 in which an initial decision to remit to the
same Employment Tribunal was reversed.
32.
This Employment Tribunal was given an opportunity to explain the basis
for their key finding which is under challenge in this appeal. That was done
by the very proper review request by the Respondent. That request was turned
down on the basis that the Tribunal Judge said that the key finding was Meek
compliant. We have found that it was not Meek compliant.
Further, it is clear from paragraph 4 of the Remedies Judgment that a
further attempt was made to obtain clarity as to the meaning of the key passage
in the Liability Judgment which, in our respectful judgment, was inadequately
explained. In those circumstances, it would not be just or appropriate to send
the matter back to the same Employment Tribunal. Accordingly, it is to be
remitted to a fresh Employment Tribunal on the basis that the finding of unfair
dismissal stands with the finding that redundancy was not established to be the
reason for dismissal. Those findings remain in place.
33.
What will be material for the fresh Employment Tribunal to consider and
decide upon is the real reason for dismissal. Ms Gower has set out in her
skeleton argument four questions to be asked by the Tribunal on a remission but
we would like to canvass with both counsel a precise formulation of the terms
of remission.
34.
The orders against the Respondent on remedy and costs are set aside.
Those matters are remitted to a fresh Employment Tribunal to decide remedy and
costs in light of a decision to be taken by them on the reason, which has been
held not to be redundancy, for the Claimant’s dismissal. All other findings of
fact to stand save for the words from “we regret to say” up to and including
“extracting the relevant emails that” in paragraph 21.1 of the Liability
Judgment, paragraphs 3 and 4 of the Remedies Judgment and
paragraph 12 of the Costs Judgment.
