The amended grounds of appeal really are based on three distinct areas in the evidence where Mr Horan alleges that the Tribunal have failed to make findings of fact on key areas and as a result of that failure he argues that their conclusions as to the fairness of the dismissal can be challenged. He relies on the authority of English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 , the well-known passage from Lord Phillips where in particular he said that:
Lord Phillips went on to say this:
Mr Horan argues that there were critical areas in the history of this case which the Tribunal have failed to deal with.
The background facts can be taken from the Tribunal's decision. Mr Marsland had worked from 1 April 1998 as an area support services officer. His duties consisted of monitoring ground maintenance contract arrangements for schools and other establishments and prior to reorganisation he was responsible for some 176 schools and other establishments.
In 2003/2004 the Respondent determined that ground maintenance and cleaning services, which had hitherto been separate functions, should be combined. Thereafter consultations took place, both individually and collectively with those affected and with the trade union. On 8 December 2004 the union accepted the proposals which would mean that existing support officers, including the Claimant, would be redeployed into new area support officer posts, obviously having control over both ground maintenance and cleaning services.
The key clause in the Appellant's terms and conditions was clause 7 of the redeployment agreement. The Council had an agreement with the unions that if employees were to be redeployed the redeployment panel would decide whether the proposed redeployment was suitably measured against certain specified criteria. Although the agreement itself appeared to affect only redundancy, it was agreed between the parties from the evidence that it covered also situations such as a reorganisation as occurred in this case.
The clause read as follows:
In January 2005 the Appellant and others were advised that a redeployment process was going to take place. They were asked to return a form stating their preferences. The Appellant did not return that form.
On 3 February the panel agreed that the Appellant and others should be redeployed into the new area support officers' posts, which were considered suitable redeployment. The Claimant again could have attended that panel but did not, alleging that he was unaware of the appointment.
It is right to say that throughout this consultation process the Appellant expressed in writing his objections to being redeployed, although recognising the Respondent's right to restructure. He considered that his changed job description was not suitable alternative employment and in fact he disagreed with the whole proposal to merge the duties of ground maintenance and cleaning.
He was written to on 10 January reminding him that pursuant to the agreement he was entitled to refuse the first offer; however he was required to undertake the duties of the new post until such time as a second suitable alternative offer of employment could be made. Thereafter meetings took place and the Tribunal found that Mr Marsland would not undertake the reorganised role until it was established that the variation to his terms and conditions were legal. He was advised that his refusal to undertake the new role was potentially gross misconduct and unless he agreed in writing to undertake the new role disciplinary action would follow and he risked being suspended.
In fact, the process did not take place until the end of 2005 because he was off work for six months between June and December. Thereafter, he was taken to a disciplinary panel. That panel was split into two hearings because the panel were, according to the Tribunal, concerned that he understood his options with regard to redeployment. The redeployment panel confirmed that the new position was suitable and confirmed that the provisions of clause 7 would apply. We will refer to that decision below.
The disciplinary panel reconvened and decided that he should be dismissed for gross misconduct for refusing to undertake duties in accordance with clause 7. An appeal against that decision was unsuccessful.
The Tribunal in their decision set out the law, namely Section 98 Employment Rights Act 1996 and British Homes Stores v Burchell [1979] IRLR 379. They accepted that there was a business need for the reorganisation and that there was adequate consultation and they set out clause 7 and accepted the Council's version of it. The Appellant, at the hearing before the Tribunal, had contended that clause 7 gave him the option of refusing the first offer and in fact, as it were, sitting it out until a suitable alternative position came along. The Tribunal, however, were satisfied that the Council's view was correct; that having refused the first offer it did require the Appellant to undertake the duties of the offered post until such time as an alternative suitable offer was available.
The Tribunal was satisfied that a thorough investigation had taken place and that the dismissal hearing was conducted properly and came to the view that the dismissal was therefore not unfair.
Mr Horan in the Notice of Appeal challenges three areas in the history of these events where he contends that the Tribunal failed to deal with key matters. First of all, in the grounds of appeal paragraph 1.1 he sets out that the basis on which Mr Marsland was taken to the disciplinary panel was a refusal to take on the new role on a "permanent" basis.
The Tribunal in dealing with the lead up to the disciplinary panel do not mention the word "permanent" as figuring in the complaint giving rise to that panel hearing. Paragraph 13 of the Tribunal's decision speaks of the Claimant being advised thus:
The Tribunal in paragraph 15 refer to a meeting between Mr Spencer and the Appellant on 12 December 2005 when the Claimant was suspended because he was not prepared to undertake the new role for reasons he had previously stated. Mr Horan has in fact taken us through the relevant correspondence. The key letter which is not referred to by the Tribunal is a letter of 29 December 2005 from Mike Hart to the Appellant. It contained these two paragraphs:
Later in the same letter:
The disciplinary hearing in fact did not commence until the following year, 8 December 2006. It is referred to as 8 December 2005 in the Tribunal's decision but that is an error. So, there is no reference in the Tribunal's decision to the apparent cause of complaint made against the Appellant that it was a refusal to give an assurance to permanently undertake the role. However, by the time one gets to the disciplinary hearing itself the Tribunal record at paragraph 17 that the Appellant was referred to the redeployment panel and that met on 11 January 2007, erroneously described as 2006 in the Tribunal's decision. Paragraph 17 carries on as follows:
It is clear to us therefore that, even if there was a misunderstanding in terms of the earlier letter that had been written a year previously in December 2005, nevertheless as a result of the reconvening of the redeployment panel, which the Tribunal found was attended by Mr Marsland, and as a result of the reconvened disciplinary panel, the Tribunal make it quite clear that he was being disciplined not because of a failure to permanently take on the new role but a failure to work at the new job under clause 7 until such time as a suitable appointment came along.
Whilst in a world of perfection it might have been preferable for the Tribunal to have mentioned that earlier letter and to contrast it with the disciplinary hearing and the reconvened redeployment panel, we do not find that defect to invalidate the Tribunal's key findings which must go to the reasons for dismissal which are set out very clearly in paragraphs 17 and 18. Miss Connolly, who appeared below, has assured us that certainly in the manner in which the Appellant gave evidence in relation to those events he was clear that he was being disciplined for a failure to comply with clause 7. It is clear that the Appellant's fear was that if he had begun to work at the new job that it would have sealed his fate for the future and that no suitable offer would ever have appeared in the future that might have provided an alternative job for him. That indeed is the clear flavour of the evidence that we have seen from the notes of evidence.
Three matters clearly emerged from those notes which are incontrovertible. Firstly, that the Appellant did not want to move from his original job. Secondly, that he thought that clause 7 would allow him to have the option of sitting it out until at least one suitable offer came along; and thirdly, his concern that once he got going on the new job the Respondents would make no effort to offer him an alternative for consideration, pursuant to clause 7.
So, dealing with that first issue, namely the nature of the letters that were sent before the disciplinary hearing, we are satisfied that in so far as there was a failure by the Tribunal to mention that one particular letter from Mr Hart we do not form the view that the Tribunal's decision was thereby invalidated in any way.
As regards that disciplinary hearing in December 2006/January 2007, the amended Notice of Appeal contends that the panel's decision was that, and I quote from paragraph 1.3 of the Notice of Appeal:
Before us, Mr Horan conceded that the issue of temporary employment was raised for the first time at the appeal stage and again we have checked through the notes of evidence that have been provided to us and the documents and we are quite satisfied that the disciplinary decision was based on the failure to comply with clause 7, that the Appellant understood that that was the reason for dismissal, and that followed, as we have indicated already, the reconvening of the redeployment panel.
It is right we should read out the panel's conclusion in its entirety, although it was only referred to in summary form by the Tribunal. The resolution of the panel said as follows:
The third area in the Notice of Appeal concerns the appeals committee hearing. Paragraph 1.4 of the Notice of Appeal says this:
Paragraph 1.5:
We have not in fact been directed to any letter written by the Appellant suggesting that he was willing to work on a temporary basis. The only reference that we have been taken to is page 29 of the notes of evidence. Mr Marsland was questioned by Miss Connolly and there was the following question and answer exchange:
The appeal hearing was dealt with in paragraph 20 of the Tribunal's decision. They said this:
It is right to say that that paragraph does not contain any reference to any offer that Mr Marsland may have made concerning being willing to work on a temporary basis and indeed the letter confirming the appeal panel's decision sent on 4 April 2007 does not appear to make any reference to that offer.
We regard the offer, even if it was made to work on a temporary basis as being irrelevant to the issues that were in front of the appeals committee. They were enquiring into whether a dismissal based on a failure to comply with clause 7 was in all the circumstances a proper decision and the use of the phrase "permanent" or "temporary" in our view was irrelevant to the issues that were in front of them and we do not find that the failure of the Tribunal to make reference to that brief passage of evidence from the Appellant is in any way a material fact such as would have to mentioned in a decision, or indeed going to the Tribunal's overall view as to fairness or unfairness.
Accordingly, as will be apparent, we have analysed the three areas that Mr Horan has referred us to; we hope with the detail covering the issues that he raised. Other than the defect in failing to mention Mr Hart's letter, and we have dealt with that and the effect of it, we find no defects in the Tribunal's analysis of the key facts in the case. The analysis of their decision as to fairness is clear and correct and in the circumstances this appeal is dismissed.