London Borough of Barking and Dagenham v. Cogley [2001] UKEAT 0630_01_0410 (4 October 2001)

JUDGMENT PRELIMINARY HEARING © Copyright 2001 APPEARANCES For the Appellant MR J HAWTHORNE Solicitor Instructed by Messrs Witham Weld Solicitors 70 St George's Square London SW1V 3RD JUDGE PETER CLARK This is an appeal by the Respondent employer, the London Borough of Barking and Dagenham, against the decision of the Stratford Employment Tribunal, promulgated with Extended Reasons on 22 March 2001, upholding the Applicant's complaint of unfair dismissal. The Applicant commenced her employment for the Respondent in March 1979 as Officer-in Charge of the Brocklebank Lodge Old Peoples Home. In January 1985 she became manager of Saywood Lodge Old Peoples Home, Dagenham, where she lived alone in a service occupancy flat. The Employment Tribunal found that the Applicant was fully committed to the best interests of the residents in her care, although there were shortcomings on the paperwork side of her duties. On 5 October 1998 the Respondent's Social Services Committee agreed to a new management structure for the older people's residential care, moving away from traditional residential homes such as Saywood Lodge. The effect of this proposed restructuring of operations would involve the loss of 6 manager's posts, including that held by the Applicant. The possibility of voluntary redundancy had been raised with the Applicant and other affected managers and although the applicant made inquiries about this possibility in July 1998, the Employment Tribunal found she had no settled intention to take that option. On 12 May 1999, whilst officially on leave, the Applicant passed the lounge area at the Home and saw a resident, MG, then aged 95, slumped in her chair. The Applicant arranged for her admission to hospital. On 14 May 1999, the Applicant was instructed to attend a meeting at which she was suspended from duty "due to information received alleging serious neglect of a resident". She was instructed not to enter Council premises other than for the purpose of going to and from her flat and not to have contact with any member of staff or resident. She was not then told which resident was the subject of the Respondent's investigation. The Employment Tribunal found that the Applicant was devastated by her suspension. She remained under suspension, in isolation, for 19 weeks until 27 September 1999. On 25 June MG died, her death being certified as due to natural causes. It was not until 12 July that the Applicant was interviewed by the investigating team and then learned that the resident in question was MG and that she had died. The team prepared a report which was presented to the Respondent in September 1999. It found no case of neglect on the part of the Applicant. The Applicant was summoned to an "Investigation Interview" by a letter dated 20 September from the Head of Division, Mr Ashelford. The Employment Tribunal described that letter as surprisingly terse and formal. At the meeting Mr Ashelford had a large file in front of him. He told the Applicant he would not go through it because it would take too long but would tell her what she wanted to know, namely that no negligence had been found against her. The Applicant had, the Employment Tribunal found, become desperately worried during her 19 week suspension. She lost weight and suffered from stress-related psoriasis which turned to septicaemia, requiring her admission to hospital. The Applicant lost confidence in the Respondent as a result of this experience, compounded by the Respondent's failure, contrary to the evidence of Mr Ashelford, to reinstate her into her old job; instead she was finally offered the permanent post of deputy manager at the Brocklebank Nursing Home. Having lost all confidence in the Respondent the Applicant resolved to leave their employment. She enquired again about voluntary redundancy; her redundancy was approved by the relevant sub-committee of the Respondent on 3 November and by letter dated 4 November 1999 she was formally dismissed by reason of redundancy with effect from 31 December 1999. On termination she received an enhanced redundancy payment and other benefits. On these facts the Employment Tribunal found that the Applicant was not constructively dismissed but was actually dismissed under s.95(1)(a) of the Employment Rights Act 1996. The next question for the Employment Tribunal was what was the principal reason for that dismissal. The relevant findings as to that matter is set out at paragraph 35 of the Employment Tribunal's reasons as follows: "(3) On the face of it the question (that is the principal reason for dismissal question) can be answered simply on the basis that the Applicant was dismissed by reason of redundancy. However, we do not find that the matter is that simple. Looking beyond form to the substance of what has occurred, we find that the reason for the dismissal was that the employment relationship could no longer continue because the Respondent had destroyed the employment relationship. The progressive destructive process was concluded by the Respondent making it abundantly clear that it did not trust the Applicant to resume responsibility for the care of the residents of Saywood Lodge, notwithstanding the findings of the Joint Investigation Report. We determine that that was the principal reason for the Applicant's dismissal, albeit that the dismissal was labelled and processed through the Respondent's redundancy machinery. (4) It is for the Respondent under s.98(1) of the Act to show the reason for the dismissal and that it was a reason within s.98(1)(b)/(2) of the Act. We determine that the Respondent's reason for declining to reinstate the Applicant was its belief regarding her capability to satisfactorily discharge the manager's role at Saywood Lodge. The Respondent has not set up as its case the reason which we have determined and indeed its case contradicts our findings. (5) Accordingly, the Respondent having failed to establish a potentially fair reason for dismissal within s.98(1)(b) or (2), we find that the Applicant was unfairly dismissed." Against that conclusion this appeal is brought. Mr Hawthorne submits that the Employment Tribunal fell into error by confusing the reason for the parties entering into discussions with the outcome of those discussions, that is dismissal by notice on 4 November. He contends that the Employment Tribunal looked at their finding of a breach of trust on the part of the Respondent in October 1999 but failed to consider the effect of that breach of trust between October and 31 December 1999. We have concluded that that submission itself confuses constructive dismissal with actual dismissal. Mr Hawthorne would accept the Employment Tribunal's finding as to the principal reason for dismissal if employment ended in October but he submits that their finding ignores the discussion entered into between the parties from late September which resulted in termination with a redundancy package. The question of constructive dismissal simply does not arise in this case because as Mr Hawthorne accepts the Employment Tribunal were entitled to find that there was an actual dismissal under s.95(1)(a). Accordingly, it seems to us the only question in this appeal and the one on which we must focus is whether or not the Employment Tribunal were entitled to find that the principal reason for dismissal was not redundancy as the Respondent contended but the lack of trust by the Respondent in the Applicant to resume her old position as manager of Saywood Lodge. The short answer to that question is, in our judgment, the Employment Tribunal were entitled to so find. Cases do arise in which redundancy is given as the ostensible reason for dismissal in circumstances where a 'redundancy situation' in the loose sense of that expression exist. However, that was not the principal reason in the employer's mind for dismissing the Applicant, so the Employment Tribunal found after a careful review of the evidence and findings of fact made on that evidence. It was the lack of trust in the Applicant not withstanding her being exhonerated by the joint investigation report. Since that was not the reason advanced by the employer and does not amount to a potentially fair reason for dismissal, in our view the Employment Tribunal were entitled to conclude that the Respondent had not made out a potentially fair reason for dismissal and it must then follow that the dismissal is unfair, it being unnecessary to proceed to consider the question of reasonableness under s.98(4) of the Employment Rights Act. In these circumstances we have concluded that this appeal raises no arguable point of law to go forward to a full hearing and the appeal it must be dismissed at this stage. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII