Stankovic v. City of Westminster [2000] UKEAT 696_00_1512 (15 December 2000)

JUDGMENT PRELIMINARY HEARING © Copyright 2000 APPEARANCES For the Appellant The Appellant in person JUDGE J ALTMAN This is an appeal from the Employment Tribunal sitting at London North on 15 November 1999 in which the claim for constructive dismissal was dismissed, and the claim for unfair dismissal on grounds of redundancy was dismissed. It comes before us by way of a preliminary hearing to determine if there is an arguable point of law, such as to justify consideration in full by the Employment Appeal Tribunal. We propose to direct that this matter does go forward to a full hearing on one aspect of the claim, but before we turn to that, I deal with those matters which we consider do not raise any point of law, capable of full argument. Very briefly, the employment of the Appellant ended on or about 7 June 1999 when she opted for dismissal for redundancy; why she did that requires a little further examination. In her Originating Application she set out, first of all, the option she was given when she chose redundancy; secondly, she gave the reason for it as relating primarily, to what she saw as her life having been made unbearable by the appointment of a new manager, and she claimed unfair dismissal and redundancy on the basis of it. The Appellant was a long-serving teacher; for some 13 years she had received no complaints as to her teaching. The Employment Tribunal found little conflict as to the actual evidence. It appears that in September 1998 a new line and course manager, as she was called, was appointed, and that began a period in which the Respondents sought to impose on the Appellant, by means of fairly formalised meetings, checklists, reports and so on. These were changes that were fundamental to the way in which the Appellant had been carrying on her job for many years, in a way that seems, on the face of it, to have required instant transformation and does not appear, on the face of it, to have recognised the need for the careful management of change by consultation, development and gradual weaning of practices which may no longer have fitted the modern way of teaching, as seen by her employers. But the consequence was that the Appellant and the manager developed a stand-off position at an early stage. The Appellant felt she was being challenged, without any proper discussion, and, having practices unreasonably imposed upon her that were not appropriate, and she complained to the programme area leader, as she was called. The Appellant did not attend an appointment made for her by her manager, she wrote rejecting the criticisms levelled against her, she challenged the need for lesson plans and her manager complained about her. In consequence, no doubt from the perspective of the Appellant, a curious position arose for her. Having questioned the way in which she was being challenged, and having written rejecting those criticisms, by way perhaps of an informal type of grievance, she found herself in the middle, instead, of disciplinary arrangements and procedures. Again, she did not attend those meetings and did not start a formal grievance procedure, though she was asked to do so. So without her input, the area leader produced a report recommending a disciplinary hearing, fixed for 19 February 1999 which the Appellant declined to attend, and when that was considered in her absence, she was issued with a final written warning, and the Employment Tribunal summarised their findings in relation to that at the bottom of page 5 of their decision. From that, the Appellant raises really two matters. First, she complains in her Notice of Appeal, and in the body of an affidavit sworn on 26 May 2000, that the Employment Tribunal, in their approach to the evidence, demonstrated bias and misrepresented some of the evidence that had been heard. It is unnecessary for us to go in detail through that, or through the response of the Chairman. Suffice it to say that we have read that affidavit very carefully, and essentially what it is is that the Appellant seeks to provide an explanation as to why the Tribunal accepted some evidence and rejected other evidence, and drew inferences from the evidence which the Appellant feels are unwarranted. But it must be emphasised that the whole process of a Tribunal hearing is to weigh and assess evidence and consider differences of emphasis in the way witnesses deal with matters, and whom the Tribunal has had an opportunity of assessing. Frequently, parties feel that the Tribunal's assessment of the evidence is wrong, and that is no doubt the case here, but that does not, in our judgment, demonstrate bias. We find, on the face of this appeal, no arguable case of bias whatsoever. Nor do we find any arguable case of there being any appearance or reasonable perception of bias on the part of the Chairman, or the members of the Tribunal, and we dismiss that ground at this stage. The second matter that follows from that is that the Tribunal had to consider whether the conduct of the Respondents, in their handling of the disciplinary process leading to a final written warning, was so wrong as to constitute a breach of contract such as to lead the Appellant to leave, in the way that she did, which was by opting for redundancy which she would not have otherwise have done. Here again, the Employment Tribunal came to a conclusion on that matter and they directed themselves correctly on the law. They found that there had been no breach of contract by the Respondents as to the way in which they handled the matter. Certainly, it follows from their decision that there was no fundamental breach, such as to entitle the Appellant to leave without notice, and that seems to us to have been an assessment of the merits which they set out in some detail, and on the facts and the evidence that was a conclusion they were entitled to reach. As we said at the outset of this judgment, it may be that the crudeness and artificiality of the way in which the Appellant was treated was counterproductive in the end, but that does not make it a breach of contract. In paragraph 13 of their reasons the Employment Tribunal found "at no time did the employer manifest any intention not to be bound by the contract of employment which they had with the Applicant. On the contrary, it seemed to the Tribunal that they were actively seeking to operate within its terms." The Employment Tribunal then point to the strong reactions of the Appellant. We have not heard the evidence, we do not know the background to this case, but we can imagine cases in which the proudest and most conscientious of teachers, who could, with careful management, become great assets to an education authority, can become so stressed by the way in which change is managed that that undermines their ability to continue. In this case, however, the Tribunal reached a decision and we find that they made no error of law in that respect. We turn now to the question of redundancy. It appears from the bottom of page 6 of the decision, and the facts there outlined, that there was to be a reduction in the number of hours required by the college overall, but on page 8 the Employment Tribunal found that the number of hours devoted to teaching English to Speakers of Other Languages, which is the department in which this Appellant taught, were not reduced. In crude terms, it appears this was what is often called a "bumping redundancy" because the Respondents looked at their overall workforce rather than that workforce which related directly to those departments where there were to be reduced hours, and that at the top of page 7 they set out the options that were offered to employees. It appears that the process of selection was discussed, to some unspecified extent, with the trade unions, and that the Appellant was given a few days to make up her mind and in paragraph 9 the Employment Tribunal began to set out their reasoning. They found that the reason for dismissal was redundancy. However, we pose the question, as a point of law, as to whether they fully considered the question of unfair dismissal. Did they go on fully to consider whether the Respondents were reasonable in treating that as the reason for dismissal, when viewed in the light of equity and the substantial merits of the case? In paragraph 9, when they looked at the "process" leading to redundancy, they defined personal consultation as being: "aimed at enabling an individual to bring to the attention of employers personal factors which might be unknown" and they also related it to alternative work, and then in paragraph 14 onwards, they dealt with their reasoning about it. The Employment Tribunal found that there was full consultation with the union, but poor consultation with the Appellant and they did not criticise the timetable, but described it as having "slippage". It seems to us that it is arguable that the Employment Tribunal erred in failing to ask itself a number of questions, such as "Was there any proper procedure for this redundancy exercise? If so, how was it arrived at? Was it reasonable to have this bumping situation? Thirdly, was the definition of the purpose of personal consultation unduly narrow, and even where there is union consultation, is it not well established that there should be consultation about selection, as well as personal matters? Was selection fair? Was it shown to be in accordance with an existing procedure? Was there proper consultation? Was the sequence of grievance and disciplinary hearings, even if the Appellant had attended them, in the context of her opting for redundancy, without more, sufficient to enable her to form a balanced judgment? Was it a fair selection where her job was not reduced in hours? Was the alternative opportunity for work fair, bearing in mind that it appears that it required, in accordance with the finding of the Employment Tribunal, that as a condition precedent to having alternative or additional work, that the Appellant would have to join, in accordance with paragraph 15, in a continuing selection process, which might (or presumably might not) produce similar hours of work and would require a different contract of employment? Did the Employment Tribunal ask themselves whether that was a genuine offer of alternative work or a device to get employees to sign up to a new contract and to have to apply for their own jobs? It seems to us arguable that those were all questions that were relevant to the issue whether the Respondents were reasonable in treating the redundancy as the reason for dismissal and arguable that the Employment Tribunal erred in not addressing them. But the matter clearly requires full argument and there is much to be said, no doubt, on both sides. This appeal will therefore be listed for half a day in Category C, Skeleton Arguments to be filed not less than 14 days before the hearing. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII