EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lady Paton

Lady Dorrian

Lord McGhie

 

[2013] CSIH 4

XA51/10

 

OPINION OF THE COURT

 

delivered by LADY DORRIAN

 

in Appeal by

 

FIONA McBRIDE

Appellant;

 

Against a decision of the

 

 

EMPLOYMENT APPEAL TRIBUNAL

Respondents:

_______

 

Act: Truscott, QC et Gibson; Thorley Stephenson

Alt: Napier, QC; Maclay Murray & Spens

 

25 January 2013

 

The issues

[1] The appellant was employed by Strathclyde Police Joint Board, (subsequently the Scottish Police Services Authority) as a fingerprint officer working in the Scottish Criminal Records office (SCRO), from October 1984 until her dismissal on 1 May 2007. In a judgment registered on 26 January 2009 an Employment Tribunal ("the Tribunal") concluded that the appellant had been unfairly dismissed and directed that she should be reinstated, finding for the purposes of reinstatement that she had not caused or contributed towards her dismissal. The Tribunal's finding that she was unfairly dismissed was not challenged by her employers, but they appealed to the Employment Appeal Tribunal ("the EAT") against the order that she be reinstated. The EAT concluded that the Tribunal's decision to order reinstatement was perverse. They remitted the case to a differently constituted Tribunal for the issue of remedy to be considered afresh. The appellant has appealed against the decision of the EAT on the basis that they had erred in law in making a finding of perversity and in deciding to remit the case to a differently constituted Tribunal.

 

Employment Rights Act 1996

[2] Where an employee is found to have been unfairly dismissed, a Tribunal may, in appropriate circumstances, make an order for reinstatement. Section 114 of the Act provides:

"(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.

(2) On making an order for reinstatement the tribunal shall specify-

...........

(b) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and

............

(3) If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed".

 

Section 115 provides:

"(1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment".

 

Section 116 provides:

"(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account-

(a) whether the complainant wishes to be reinstated,

(b) whether it is practicable for the employer to comply with an order for reinstatement, and

(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms".

 

Section 230 provides:

"(1) In this Act 'employee' means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act 'contract of employment' means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

....

(4) In this Act 'employer', in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Act 'employment'-

(a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b) in relation to a worker, means employment under his contract;

and 'employed' shall be construed accordingly".

 

Background

[3] In January 1997 a fingerprint lift, labelled Y7, was taken from the scene of the murder of a woman named Marion Ross. That print was identified by the appellant and three colleagues as coming from P.C. Shirley McKie, who denied ever being at the locus. Ms McKie was charged with perjury and acquitted. The fall-out from that case is well known and will not be repeated here. For present purposes, the important points to note are that the appellant and her three colleagues were suspended from duty from August 2000 until 20 May 2002. Although it has been maintained, and indeed determined in a public inquiry, that the identification of the print as coming from Ms McKie was a "misidentification", in the present case it has not been suggested that the fingerprint officers involved acted maliciously or were guilty of misconduct. The appellant objects to the use of the term "misidentification", which is understood as meaning that an error has been made: she considers that it should be described as a "disputed identification". She continues to maintain that the print was correctly identified. On their return to duty the appellant and her colleagues underwent extensive retraining, over 12-18 months, with a view to their returning to full time court-going duties. On completion of the retraining, however, they were not permitted to sign joint reports or attend court to give evidence as fingerprint experts.

[4] The main function of the job of fingerprint officer is "to provide an efficient and effective identification support to operational police personnel". The job activities included "(1) to assess, input, search and verify identifications through use of fingerprint collections, AFT systems, and Livescan where appropriate; (2) to prepare court cases and give evidence as required; and (3) to check and sign fingerprint identifications prepared by other fingerprint officers and trainee fingerprint officers." Although the appellant was allowed to perform the first of these functions, she did not sign joint reports or give evidence in court.

[5] In or about 2005, a decision was made that from April 2007 the work of SCRO and other forensic and support services would be fused under the umbrella of a statutory body to be known as the Scottish Police Services Authority (SPSA). In anticipation of this, Assistant Chief Constable David Mulhern was given responsibility for developing an Action Plan for the structure of the statutory body. There had been considerable criticism of the fingerprint service in the wake of the McKie case, including an unfavourable report from Her Majesty's Inspector of Constabulary. Mr. Mulhern was determined to establish a new organisation of high quality which would secure and retain public confidence. It is clear that he did not think this objective would be assisted by retaining the services of the appellant as a fingerprint officer. He considered that the continued employment in that organisation of experts involved in the McKie saga would be damaging to its reputation. He was not willing to countenance a return by her to court-going duties. His conclusion was effectively supported subsequently by views expressed by the Lord Advocate, who was concerned that the focus of trials might be derailed by over-emphasis in cross-examination on the history of the fingerprint officers concerned, and that it would not be appropriate for them to be called as witnesses in criminal trials. Mr. Mulhern decided that he could not countenance continuation within the new organisation of the status quo, a situation whereby the appellant was employed as a fingerprint officer but was engaged in carrying out restricted duties.

[6] Mr. Mulhern's original position was that he did not want the appellant or her colleagues to transfer to the new organisation, but considered that there was scope for redeployment within Strathclyde Police, by whom they were still employed, prior to the transfer of fingerprint services to SPSA. Otherwise the options were to accept a severance package or be dismissed. The appellant's union representative considered that there would be greater opportunity for redeployment in SPSA rather than in Strathclyde Police, since transfer of forensic services would be under the SPSA umbrella not Strathclyde police. The appellant did not want to be redeployed within Strathclyde Police, nor did she want a severance package. She wished to remain in position and transfer to the new body. When the matter of redeployment was pursued, she was unwilling to discuss redeployment until she had what she considered to be satisfactory answers to three questions, namely whose decision it was to refuse to allow her to return to full duties, when the decision was made and why. The Tribunal concluded that she was drip-fed partial information in answer to these questions, but that the questions had been answered by 27th April 2007. At that time that appellant was called to a meeting on 1st May with Mr. Tom Nelson, the respondents' Director of Forensic Services, to "take a final decision in relation to your future employment, including the potential for dismissal". The appellant continued to maintain that her questions had not been answered. She continued to seek reinstatement to court-going duties. She claimed that she was willing to discuss redeployment if it became necessary, but her position clearly was that it should not be discussed until these further avenues had been explored. After a short adjournment of the meeting, the appellant was informed that having regard to all the circumstances, including the fact that she had not engaged in discussing redeployment, her employment was being terminated.

 

The Employment Tribunal

[7] The Tribunal decided that the reason for dismissal was that a decision had been made that the status quo could not be maintained and because she would not engage in discussion regarding redeployment, alternative employment could not be identified. They were satisfied that this was a substantial reason, akin to redundancy, was not capricious, whimsical or trivial, and could justify dismissal. They also concluded that the respondents' decision that the appellant could not return to court-going duties was a reasonable one. Their decisions thereafter, including the decision to dismiss, were unreasonable because of lack of consultation and because Mr. Mulhern was unwilling to consider whether there was alternative suitable employment, in particular whether there was scope for the appellant to continue in a non court-going role.

[8] The finding of unfair dismissal has not been challenged. The Tribunal made an order for the reinstatement of the appellant. In considering whether to make such an order, the Tribunal were required under section 116(1) of the Employment Rights Act 1996 ("the Act") to take into account whether the complainer wished to be reinstated and whether it was practicable for the employer to comply with such an order. They also required to consider whether the appellant had to some extent caused or contributed to her dismissal. The Tribunal decided that reinstatement was in accordance with the appellant's wishes; that it was practicable for the employers to comply with such an order, and in particular that the relationship of trust and confidence between employer and employee had not broken down; and that the appellant had not caused or contributed in any way to her dismissal. The order which they made was "to order the respondent to reinstate the claimant to the position of fingerprint officer; the respondent shall treat the claimant in all respects as if she had not been dismissed."

[9] A full narrative of the circumstances leading to the dismissal appears in the decision of the Tribunal but will only be considered here in so far as relevant to: the appellant's wishes; the practicability of reinstatement, including the question of whether there had been a breakdown of the relationship of trust and confidence between employee and employer; and whether the appellant had caused or contributed to her dismissal.

 

Findings in relation to the appellant's wishes

[10] The Tribunal found that the appellant did not wish to take redeployment with Strathclyde Police, in respect of which there was in any event no particular job offer to consider, nor did she wish to accept a severance package. She wanted to "remain in her position and transfer to the new organisation" believing that any issues regarding a return to full court-going duties would be discussed in due course. After transfer, her position was that she was willing to discuss redeployment if necessary but she first wished an opportunity to discuss reinstatement, by which she meant a full return to court-going duties. At an internal appeal against her dismissal the appellant did not argue that the status quo should continue: she wanted to return to being a court-going expert. The remedy sought on the appellant's behalf was reinstatement. She had made it clear that whilst she understood that any return to work would be on the basis that she did not appear in court, her long term aim was to achieve a return to full court-going duties. She wanted the respondent to support her in achieving that objective. The submission on her behalf was that she sought the remedy of reinstatement if successful, that the reinstatement would be to non court-going duties and that she did not seek re-engagement. It was accepted at the EAT that although she wanted to return to the job she was doing immediately prior to dismissal, her ultimate gaol and aspiration was a return to full court-going duties. In addressing the question of reinstatement, the Tribunal did so on the basis of "it being understood that reinstatement would be to a non court-going fingerprint officer role". Nevertheless, they made the order for reinstatement in the terms noted above.

 

Findings in relation to the practicability of obtempering an order, including the relationship of trust and confidence

[11] Trust and confidence

The McKie saga in general had an adverse impact on staff morale, with employees in the Glasgow office supporting the identification, whilst those in other locations did not. The appellant continues to maintain that she had made a correct identification; there is a wealth of contradictory opinion. In his Action Plan, on television and elsewhere Mr. Mulhern publicly referred to the identification as a "misidentification" which had caused considerable public concern about the quality of the work done by fingerprint experts in Scotland. The appellant considered that in using such a term Mr. Mulhern was being deliberately provocative. The day after his appearance on television there was a meeting attended by him and the appellant which was described as "tense and confrontational". Each side accused the other of acting unprofessionally. This is not the subject of a finding by the Tribunal save in that they record that the appellant questioned the authority of Mr. Mulhern. She subsequently raised a grievance against him based in part on his conduct at the meeting. Although Mr. Mulhern was of the view that the appellant had timed the grievance to coincide with, and damage, his prospects of being appointed CEO of the statutory organisation, the Tribunal did not accept this. During an exchange of correspondence the appellant described a statement by the respondent's HR professional, Miss Masson, as "indicative of a duplicitous misrepresentation of the facts". The appellant considered that she had been lied to, and the Tribunal concluded that she was right in that belief. In a newspaper article headed "After 10 years of silence the McKie fingerprint expert tells her side of the story" the appellant was reported as saying of Mr. Mulhern "Because he had not been able to bully me out of the job he terminated my contract". The Tribunal described Mr. Mulhern as displaying "arrogance and contempt for natural justice" in the decision making process. They considered that he had inflamed an already sensitive situation by drip-feeding the appellant information which he knew to be only partially accurate, rendering the consultation process a sham and that he had attempted "to manoeuvre and corral" the appellant into accepting his decisions. In accepting that it was appropriate to put in the balance "a degree of animus" between the appellant and Mr. Mulhern, the Tribunal pointed out that the respondent is a large employer, with over 1800 employees and there would be no day to day contact between the appellant and Mr. Mulhern.

[12] General practicability

Largely, assessment of this issue turned around the fact that the appellant had been performing a substantive role as a fingerprint expert without going to court or signing joint reports for eight years. The Tribunal accepted that when an identification is requested it cannot be known whether a joint report or appearance in court will be required. However, there was evidence that only a small percentage of cases resulted in an appearance in court, that the appellant's situation had been managed for eight years, and that it was not unknown to have other fingerprint experts who were not required to attend court. The Tribunal referred to evidence from a Mr. Robinson "who spoke of a "precedent" of people being relieved of court-going duties for years; and Mr. Dunbar and Mr. Geddes spoke of many experts who did not go to court". However, the only examples cited under reference to this evidence related to an example where long term ill health had prevented the expert from attending court for a number of years; a second example of a trainer; and a third of a Head of Bureau who had never been required to attend court. Reference was also made to people being unable to attend court when on holiday. It was submitted that returning the appellant to work would result in her seeking vindication of her position regarding print Y7, but the Tribunal noted that the thrust of the appellant's evidence was that she wished a return to court-going duties rather than vindication. They considered that their finding that the respondent's decision that the appellant could not return to court-going duties was a reasonable one would "move this matter forward".

 

Findings in relation to whether the appellant had caused or contributed to her dismissal

[13] The Tribunal were satisfied that the appellant did not cause or contribute to her dismissal. She was not dismissed for conduct, and it was reasonable for her to require answers to her questions before considering redeployment. The Tribunal found that those questions were not answered until 27th April. Although the appellant could have engaged in discussions regarding redeployment at the meeting on 1 May 2007, the Tribunal were satisfied that by that time the "issue had been soured" by the approach of the respondents.

 


The EAT

[14] The arguments before the EAT were that the Tribunal had misinterpreted and misapplied section 116(1) of the 1996 Act; that their findings on practicability were perverse; and that they had erred in law in their findings on contribution.

[15] The EAT noted that in terms of s 114(1) of the Act, where reinstatement is ordered, the employee is returned into the same contractual position as she was in prior to dismissal. In the appellant's case that was to carry out the job which included the three elements identified at paragraph 4 above. It was not suggested that the appellant's contract had been modified or varied in any way. The EAT were not clear of the basis on which the Tribunal felt able to order "reinstatement" when in fact they were ordering that in future the appellant be employed on a more limited basis than specified in her contract of employment, and where she herself had made clear that this was not what she wished.

[16] On the issue of practicability, the EAT noted that this was not simply a matter of possibility, but involved consideration of the extent to which reinstatement was a practical proposition. Matters such as the claimant being determined to vindicate her position or past significant tension between the claimant and employer were relevant, and where such factors existed, they considered that it would only be in the rarest of circumstances that reinstatement would be a practical proposition. The EAT did not accept the Tribunal's assessment of the appellant's position as being that she did not seek vindication, taking the view that achieving what she saw as justified vindication was plainly inherent in her determination to return to full duties.

[17] Furthermore, the EAT concluded that the finding of the Tribunal that the relationship of trust and confidence between employer and employee had not broken down was perverse, having regard to the background of considerable conflict. They considered that the Tribunal's hope that their decision that the employer had acted unreasonably in deciding that the appellant could not resume court-going duties would enable matters to move forward was a misplaced one.

[18] The EAT were sympathetic to the argument that the Tribunal had erred in concluding that the appellant had not caused or contributed to her own dismissal, but decided that it would not be appropriate for them to determine "the contribution issue which now arises", since there would require to be a hearing in relation to compensation and the issue of contribution or conduct would require to be considered in that context. They considered that the matter should be remitted to a differently constituted Tribunal for that purpose.

 

Submissions

[19] We had detailed written submissions for both parties. What follows is therefore a brief summary.

 

Appellant

[20] Counsel for the appellant submitted that the EAT had erred in law in finding that the Tribunal had failed properly to take account of the appellant's wishes. They had erred in concluding that the Tribunal had acted perversely in finding that reinstatement was practicable and that the relationship of trust and confidence between employer and employee had not broken down. The order for reinstatement "to the position of fingerprint officer and treated in all respects as if she had not been dismissed" showed what they thought they were doing, and was an order consistent with a proper appreciation of section 114(1). Counsel did not seek to suggest that the contract of employment had been varied or altered in any way. By specifying that reinstatement meant that an employee was to be treated in all respects as if he had not been dismissed, the section was simply stating that the person would be returned to the job they were doing as a matter of fact immediately prior to dismissal. It was an entirely practical consideration. One asked what were they doing immediately prior to dismissal? That was the job to which they were reinstated. The stated wish of the claimant was to be reinstated. If the Tribunal had ordered that she be returned to do full court duties, then the employers would have had a right to complain. The Tribunal was clearly making a re-employment order to the duties which subsisted at the time of dismissal. The court now knew what the Tribunal wanted to achieve, namely reinstatement not to a court-going role but to the duties she was carrying out prior to dismissal. If this court wanted to do that, and call it re-engagement, that would be acceptable.

[21] Under reference to Associated Society of Locomotive Engineers and Firemen (ASLEF) v Brady [2006] IRLR 576, Brent LBC v Fuller [2011] ICR 806, Bowater v North West London Hospitals NHS Trust [2011] IRLR 331, McGregor v Inter City East Coast [1998] SC 440 and Eclipse Blinds Ltd v Wright 1993 SLT 664, counsel submitted that whilst the Tribunal's judgment had to be read carefully to see if it had in fact correctly applied the law which it said was applicable, over-analysis or unrealistically detailed scrutiny was to be avoided. Proper respect was to be given to the findings of the Tribunal and it was not for the EAT simply to substitute its own judgment for that of the Tribunal. In the present case, no respect was given to the Tribunal's analysis. The EAT analysed the findings and introduced their own views from what was a limited selection of the facts. They did not carry out a full or appropriate analysis of the Tribunal's findings as a whole. The EAT gave the issue of the breakdown in trust and confidence an importance which it did not merit where the appellant had been employed on restricted duties for several years. The weight to be given to any aspect of the evidence was a matter for the Tribunal. The Tribunal did weigh the evidence and took the issue of the newspaper articles into consideration. In saying "we cannot accept" the Tribunal's conclusion the EAT was simply substituting its own views. The EAT did not, in terms, reverse the finding of the Tribunal that the appellant did not cause or contribute to her dismissal, but by remitting that matter for consideration by another Tribunal in relation to remedy they were by implication overturning the finding.

[22] The test for perversity was a high one. Reference was made to Yeboah v Crofton [2002] IRLR 634 in which Mummery LJ, at para 93, made the following observations:

"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC ≠v Sheridan [1990] IRLR 27 at para 34.

In Wincanton Trans European Limited v Ian Whiteford unreported, 28 August 2003, Lord Johnston, delivering the Judgment of the EAT said:

"This Tribunal has said many times that it will not interfere with an assessment by the employment tribunal which is, essentially, one of fact, unless it can be shown that the decision was such that no reasonable tribunal could have achieved it. Cases such as Nairne v Highland and Islands Fire Brigade 1989 SLT 260 and Hollier v Plysu [1983] IRLR 260 make that very clear"

Counsel submitted that there might be two reasonable decisions at the end of a line of reasoning: for a Tribunal to choose one and not the other is not perversity. If there was one obvious answer but the Tribunal reached another answer, that was perversity. If material facts are left out of account that was not perversity but an error in law. It certainly was not for an appellate Tribunal to reverse a Tribunal on the basis of giving a different weight to one aspect of the evidence over another. Such an issue was entirely within the province of the original Tribunal who heard and saw the witnesses. The Tribunal assessed the issue of cause or contribution. There was no difference in the way that the issue of contribution fell to be dealt with under reinstatement or compensation. There was no basis for overturning the finding.

[23] As to the decision that the matter should be remitted to a differently constituted Tribunal, there had to be good reasons for such a decision. In Sinclair Roche & Temperley v Heard [2004] IRLR 763 Burton J set out guidelines on this issue, suggesting that it would be appropriate to remit to a different Tribunal in any of the following circumstances: (a) bias or partiality; (b) a totally flawed decision; and (c) what he called "second bite", meaning that where a Tribunal has already made up its mind on all the matters before it, a remit to the same Tribunal would not be suitable. Against these possible factors, the appellate Tribunal should also consider that in the absence of clear indications to the contrary, it should be assumed that the Tribunal below was capable of dealing professionally with any matter remitted to it. These guidelines were approved by the Court of Appeal in Barke v SEETEC Business Technology Centre Ltd [2005] ICR 1373, para 31. The EAT did not indicate why - apart from their comment that the Tribunal had shown sympathy to the appellant - they decided to return the matter to a differently constituted Tribunal.

[24] Counsel submitted that at the stage of considering whether to make an order for reinstatement, the Tribunal did not require to reach a final conclusion as to practicability, rather practicability was a factor which they required to take into account. This meant more than "possible", it meant "capable of being carried into effect with success".

[25] Counsel submitted that in a case such as this, although assistance might be gained from the decision of the EAT, the appellate court was primarily concerned with the decision of the Employment Tribunal, the question being whether the decision of that Tribunal was right. In Clancy v Cannock Chase Technical College [2001] IRLR 331, Lindsay J, delivering the Judgment of the EAT, noted (para 15):

"Of all the subjects properly to be left as the exclusive province of an Employment Tribunal as the "Industrial Jury", few can be more obviously their territory than the issue of "practicability" within section 116 (1) (b) and, as relevant here, 116 (3) (b). The task of an appellant raising the plea of perversity, never easy, is, if anything, even more difficult in this area. Where, as here, the Tribunal directs itself correctly on the law and hears and accepts evidence as to impracticability and then sets out its reasoning clearly and fully, as it does here, the plea becomes virtually impossible."

Reference was also made to Hollier v Plysu [1983] IRLR 260, Port of London Authority v Payne [1994] ICR 555, Timex Corporation v Thomson [1981] IRLR 522 and Coleman & Anr v Magnet Joinery Limited [1975] ICR 46. This was not a case, such as ILEA v Gravett [1988] IRLR 497, relied upon by the defenders, where there was a concern that things might go wrong if the employee were returned to her duties; that was not even the reason for keeping her out of court, which was rather that the focus of the trial might thereby be derailed. What was maintained here was that there had been a breakdown of trust.

 

Respondents

[26] Counsel for the respondents submitted that in seeking to make an order to return the appellant to the role of "non court-going expert" the Tribunal misread the applicable statutory provisions. Section 114(3) was a clear reference to the contractual terms and conditions on which the individual had been employed and not simply a reference to the "job he had been doing prior to dismissal". Reinstatement involved being reinstated to the terms and conditions set by the contract. Such a reading of the statute was supported by the fact that one of the remedies available to a Tribunal was re-engagement in terms of section 115(1). That subsection provided for re-engagement in employment comparable to that from which a person was dismissed, or other suitable employment. For an employee, employment meant (s 230(5)) "employment under a contract of employment". The consequence was that if a person were reinstated she would be reinstated to the job per contract, with any improvements to that contract, as provided for under s 114(3). A person who was re-engaged would be employed on altered terms and conditions of employment. To achieve its stated objective, the Tribunal would have had to order re-engagement, but it was clear that this was not what the appellant wished. The two options - reinstatement or re-engagement - create a perfectly sensible division. An example might be a geography teacher who had been constructively dismissed by being prohibited from teaching geography: reinstatement would be to teacher of geography, not to whatever watered-down aspect of the post the employers had tried to place her in. By ordering reinstatement of the appellant to the role of "non court-going expert" the Tribunal were effectively changing one of the conditions of employment.

[27] It is very common for a claimant's representative to seek reinstatement failing which re-engagement. In this case the appellant did not want re-engagement, so that option was not open to the Tribunal to consider. The reason was identified by the EAT at para 34 of its Judgment: the EAT's view that she sought vindication was based on the fact that she wanted a return to full duties. The idea of vindication was inherent in her determination to return to full duties. That is why she would not engage in discussion about redeployment. At the heart of this point was the fact that she continued to maintain that she was right and everyone else was wrong. She refused to accept the publicly stated position of her employer on a matter of national importance.

[28] The only ground of appeal from a Tribunal was error in law. Perversity was one form of error in law. It was wrong to say that issues relating to the weight of evidence could never be the basis for appeal on perversity. If the bulk of evidence supported conclusion B but one adminicle supporting conclusion A was given disproportionate weight, a decision leading to result A would constitute perversity. No reasonable Tribunal would be entitled to draw such a conclusion from such scanty evidence. The issue for this court was not whether the EAT reached the correct decision but whether the Tribunal at first instance did. The cases of ILEA v Gravett, suprał and Central & North West London NHS Foundation Trust v Abimbola EAT 3 April 2009, were examples of cases where even fact-based decisions of a Tribunal were set aside by the EAT, on the basis that a significant factor had been excluded from their consideration. In the latter case the EAT accepted a submission (paragraph 24) that they could substitute a different result if they concluded

"....that in determining the remedy question this Employment Tribunal failed to take into account relevant factors and took into account an irrelevant factor in carrying out the balancing exercise in order to exercise its discretion."

 

[29] An important question in this case was whether there was a loss of confidence and trust between employer and employee. Clearly, there was no loss of confidence in her as an employee, or the issue of redeployment would not have been under consideration. There was however, a loss of confidence in her as a fingerprint officer. The courts are generally wary of imposing reinstatement on employers and a significant factor in assessing the appropriateness of the remedy relates to the issue of trust and confidence.

[30] The point was, as noted by Ormrod, LJ in Nothman v London Borough of Barnet (No2) 1980 IRLR 65 para 4 that

"It is only right to say that anyone who believes that they are the victim of conspiracy, and particularly by their employers, is not likely to be a satisfactory employee in any circumstances if reinstated or re-engaged"

 

Reference was also made to Wood Group Heavy Industrial Turbines Ltd v Crossan 1998 IRLR 680. The Tribunal misunderstood the notion of trust and confidence because they concentrated on the issue of trust and confidence between the appellant and Mr Mulhern. There were others involved, such as Miss Masson, the HR individual who was criticized by the appellant, and Mr Nelson who conducted the meeting of 1 May and actually dismissed the appellant. It was perverse of the Tribunal to find that there was no breakdown of trust and confidence by the employer in the appellant as a fingerprint officer. It was also perverse of them not to find that there was a breakdown of her trust and confidence in them as employers. The details of her comments to newspapers were before the Tribunal, but they concluded that these did not demonstrate a breakdown in the relationship of trust and confidence. The Tribunal did not take account of the serious nature of the allegations she made. They did not properly consider the tensions which were likely to arise between the legitimate concerns of the employer if she were allowed back as a fingerprint officer in a context where she would be seeking to return to full duties. This was something recognized in the case law as relevant - see Coleman v Magnet Joinery [1975] ICR 46. These are all factors which the EAT address in para 25. Had the Tribunal properly recognized the breakdown of trust and confidence, it would have been fatal to any question of reinstatement.

[31] As to the matter of cause or contribution, the EAT made no finding themselves in this regard, they merely expressed sympathy with the view expressed by the appellant's agent that there may be an apparent illogicality in the Tribunal's findings on contribution, but one could not appeal a statement of view. To advance this point, the appellant should have stated a ground of appeal that the EAT should have left standing the decision of the Tribunal regarding cause or contribution. The EAT quashed the Tribunal's findings in total save so far as the finding of unfair dismissal. It followed that the Tribunal which now must look at remedy would have to look afresh at this issue. Whether that should be the same or a different Tribunal was another matter. This was a case management decision for the EAT and there were no grounds for challenging that decision. This court should also remit the matter to a differently constituted Tribunal. If the court were to conclude that the EAT erred in law in not giving sufficient reasons for remitting to a different Tribunal, that issue should be remitted to the EAT for reconsideration.

Discussion and decision

Employment Rights Act 1996

[32] In our view the submissions for the respondents as to the proper construction of the relevant sections of this Act are correct. The job of non court-going expert does not exist in the respondent organisation. There is a post of fingerprint officer, part of whose duties may involve attending court and signing joint reports. According to section 230(5) "employment" is "employment under a contract of employment". In the appellant's case, her terms and conditions of employment included signing joint reports and giving evidence in court. That reinstatement involves being returned in all respects to the contractual position is consistent with section 114(3) which specifies that a person reinstated must be treated as if he had benefited from any improvement in the terms and conditions of employment from which he would have benefited if not dismissed. In making an order for reinstatement of the appellant, the Tribunal did not intend that she should be returned to her contractual role: they intended that she should be employed by the respondents as a fingerprint officer who did not sign joint reports and who did not give evidence in court. In other words, that she should be employed by them on altered contractual terms. It is notable that the Tribunal themselves refer to the role of non court-going officer as "alternative employment" where, noting that the onus was on the employer to consider suitable alternative employment, they say, "One such option for alternative employment was for the claimant to continue in a non court-going role - a role she had been fulfilling for eight years". Reinstatement is unconditional; re-engagement is not. The Tribunal could have achieved their stated objective by making an order for re-engagement, but that option was closed to them since the appellant did not want an order for re-engagement: she was quite clear throughout that she wanted to achieve a return to all the duties of a fingerprint expert in the employment of the respondents. The only motions made on her behalf were for reinstatement or, failing that, compensation. Her agent specifically advised the Tribunal that she did not seek re-engagement. An order that the appellant be treated in all respects as if she had not been dismissed is neither consistent with the Tribunal's stated aim of returning her to employment as a non court-going fingerprint officer ( a job which in contractual terms does not exist) nor is it consistent with the finding that the employers acted reasonably in concluding that she could not return to court-going duties. In considering that they could make an order which reinstated the appellant on terms which were different from those of her contract the Tribunal misunderstood and misapplied the law, and their decision on this matter cannot stand. Mr. Truscott suggested that this court might make an order for re-engagement since it "knows what the Tribunal wanted to achieve". It was not suggested that this was in fact what the appellant now wished to achieve, and it certainly does not accord with her stated position hitherto. It is clear that by reinstatement the appellant meant return to all the duties of a fingerprint officer. The matter of re-engagement was not considered at all by either the Tribunal or the EAT, at the specific wish of the appellant. It would not have been open to the Tribunal to make such an order in the absence of an indication from the appellant that she wished it, and it is not now open to us to do so. In any event, a considerable period of time has passed and we have no information as to the current circumstances of the respondent organisation. There is no basis on which we could address the question of whether such an order would now be practicable.

[33] As to the issue of whether the appellant caused or in some way contributed to her dismissal, the Tribunal's finding on that matter was made wholly in the context of section 116(1)(c), which enjoins a Tribunal, when considering reinstatement, to take into account "where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement". It seems to us that the decision on reinstatement having fallen, the Tribunal's finding in relation to section 116(c) must also fall .The issues which now require to be considered relate to the making of a basic award and a compensatory award, and require to be addressed according to the relevant sections relating to these. Although to a large extent the same substantive points will arise, we consider that, the decision on re-instatement having fallen, the question of contribution should be considered afresh in relation to compensation. Whether that consideration should be by the same or a differently constituted Tribunal, is the subject to which we now turn.

[34] The EAT decided that the issue of compensation should be remitted to a differently constituted Tribunal, saying "The nature and extent of this Tribunal's criticism of Mr. Mulhern and of the respondents is such as to be indicative of a significant measure of sympathy towards the claimant. The respondents' submission that any remit should not be to the same Tribunal is, in the circumstances, justified." The basis of that submission is not set out in the decision of the EAT. The submission, to us, was that the matter of whether the issue should be remitted to a different Tribunal was a case management decision for the EAT, for which the expressed views as to the sympathies of the original Tribunal constituted sufficient reason. Moreover, where the decision of the original Tribunal had been found to be perverse, the EAT would be justified in remitting the case to a differently constituted Tribunal. Counsel referred to the observations of the Court of Appeal in Barke v SEETEC Business Technology Centre Ltd [2005] ICR 1373, para 49, in relation to case management:

"We would add that in our view this court should be slow to interfere with the way in which the Employment Appeal Tribunal has exercised the jurisdiction in any individual case. It is a discretionary power in the exercise of case management. It is classically the type of decision which should be left to the appeal tribunal to make."

 

No doubt there is an element of case management in a decision whether a case should be remitted to the same or a differently constituted Tribunal. Nevertheless, in a case in which (a) the original Tribunal heard a considerable amount of evidence; and (b) the Tribunal's findings on the main substance of the case are not challenged, we would expect to see clear and cogent reasons for remitting the issue of remedy to a different Tribunal. This is particularly so when the result of such a remit would be that the fresh Tribunal would need to re-hear much of the evidence led before the original Tribunal. As was pointed out in Sinclair Roche & Temperley v Heard, the proportionality of the effect of such a decision is an important consideration. It is worth noting that the remit which was under consideration in Barke was simply an order requesting the chairman of the original Tribunal to clarify or supplement its written reasons.

[35] It is important to remember, as Lord Allanbridge pointed out in Eclipse Blinds Ltd v Wright, at page 667C-D, that:

"It can never be for an appellate tribunal concerned only with errors in law, to take upon itself the task of deciding what weight should be attached to particular facts."

The importance of giving due respect to the decision of the Tribunal was emphasised in Bowater v North West London Hospitals NHS Trust, supra, by Longmore LJ at para 19:

 

"It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt sometimes, difficult and borderline decisions in relation to the fairness of dismissal. An appeal to the EAT only lies on a point of law and it goes without saying that the EAT must not, under the guise of a charge of perversity, substitute its own judgment for that of the ET."

 

Neither this court nor the EAT can merely substitute its own view of the facts for that of the Tribunal. As Peter Clark J put it in Central & North West London NHS Foundation Trust v Mr B Abimbola, para 23:

"We cannot simply retry the question of reinstatement. Whether or not we might have reached a different conclusion to that of the Employment Tribunal is nothing to the point and that is not the purpose of an appeal to the Employment Appeal Tribunal, whose jurisdiction is limited to correcting errors of law; and the general perversity ground, that no reasonable Employment Tribunal properly directing itself could have concluded that a reinstatement order was appropriate on the facts of this case, is a high hurdle for appellants see Yeboah v Crofton [2002] IRLR 634 and particularly, on the topic of re-engagement, the observations of Lindsay P in Clancy v Cannock Chase Technical College [2001] IRLR 331 , paragraph 15"

 

[36] The implication of the EAT's reasoning is that the original Tribunal might be biased or partial towards the appellant, which, as pointed out in Sinclair Roche & Temperley v Heard would be a reason to remit to a differently constituted Tribunal. This is a case in which the Tribunal heard eight days of evidence. The central question was whether the appellant had been unfairly dismissed. To answer that question the Tribunal required to make findings in fact in relation to the way in which the appellant's dismissal was dealt with by her employers, and in particular in relation to the role played by Mr. Mulhern. The fact that a Tribunal has made such findings, and has decided in favour of one party over another, after a contested hearing, is not evidence of bias or partiality. It will be inevitable that in such a situation the Tribunal will have expressed certain views about the parties and their conduct but that should not prevent the Tribunal from concluding its duties in a fair and impartial manner. In this case the Tribunal's decision on the main substance of the case, the unfair dismissal, has not been challenged. Of course, the added factor in the present case, is that the EAT made a finding that the decision of the original Tribunal as to the remedy of reinstatement was perverse. It is implicit in the EAT's reasoning that this alleged perversity was a factor which contributed to its conclusion regarding the partiality of the original Tribunal. To determine whether the conclusion was justified on that basis we must examine the issue of perversity.

[37] We remind ourselves of the observations of the Lord President in McGregor v Intercity East Coast Ltd supra, at p 443:

"If it can be demonstrated that the industrial tribunal was fundamentally wrong in arriving at a decision that may satisfy the appeal tribunal that the decision was guilty of perversity. But generally the appeal tribunal will require to identify factors other than a difference in result to establish the perversity of the decision of the tribunal of first instance."

 

In Melon v Hector Powe 1980 SC 188 the Lord President said this at p 198:

"The law is clear that where it cannot be shown that the tribunal of original jurisdiction has either misdirected itself in law, entertained the wrong issue, or proceeded upon a misapprehension or misconstruction of the evidence, or taken into account matters which were irrelevant to its decision, or has reached a decision so extravagant that no reasonable tribunal properly directing itself on the law could have arrived at, then its decision is not open to successful attack. It is of no consequence that the appellate

tribunal or court would itself have reached a different conclusion on the evidence. If there is evidence to support the decision of the tribunal of first instance then in the absence of misdirection in law-which includes the tribunal's selection of the wrong question to answer-that is an end of the matter."

 

The EAT concluded that the Tribunal's finding that the relationship of trust and confidence between employer and employee had not broken down, and hence their decision that reinstatement was practicable, was perverse. We therefore ask the question, was that finding one which was so extravagant that no reasonable Tribunal could make it? Or was it a permissible option in the circumstances?

[38] It is important to recognise that the submission for the respondents was not that the relationship of trust and confidence between employer and employee had broken down completely. Such a submission would have been impossible to make, since it is clear that the respondents were willing to redeploy the appellant within their own organisation, and thus to retain her as an employee. Moreover, the appellant herself, although somewhat reluctantly because of her desire to return to full duties, had not, as the Tribunal put it, "closed the door on" the possibility of redeployment, if it became necessary. The argument for the respondent was essentially that the employers had lost confidence in the appellant as a fingerprint officer, and she, in that capacity only, had lost trust and confidence in them. That however, can only be partially correct: they had perhaps lost confidence in her ability to perform one, admittedly important, aspect of her job but she had nevertheless been carrying out the other duties of fingerprint officer for at least 6 years, apparently without any problems occurring, beyond the ongoing dispute in relation to return to full duties. There is no suggestion that the tension between her and Mr Mulhern impacted on the work she was doing. It was relevant that she and Mr Mulhern would be unlikely to come across each other on a day to day basis, and it was relevant that the Tribunal found that Miss Masson and Mr Nelson, with whom the appellant might be expected to have more regular contact, "had been wholly controlled by Mr Mulhern, in terms of the matters to be discussed, the information to be provided, and effectively, the decisions to be made", because these are factors which bore on the extent to which there might be ongoing tension in the workplace.

[39] A further factor of significance is that in taking into account whether it is practicable for an employer to comply with an order for reinstatement, the Tribunal is not deciding as a matter of fact that it is practicable. See Timex Corporation v Thomson supra, (a case on re-engagement) where Browne-Wilkinson J, delivering the judgment of the EAT observed, para 8, that:

"At the stage when the order to re-engage is being made, it is not in our judgment necessary for the Industrial Tribunal, looking at future possible events, to make a definite finding that the order for re-engagement was practicable."

In Port of London Authority v Payne supra, the determination at the time of the making of the order is "of necessity provisional". It may of course turn out in fact not to be a practicable option.

[40] The EAT's conclusion that the appellant's objective was vindication of her position is one view which might be taken of the facts; the view of the Tribunal that this was not the thrust of the appellant's position is however, one they made having had the benefit of seeing and hearing her, and whilst the EAT may take a different view, the view of the Tribunal is one they were entitled to take. Moreover, the factors relied upon by the EAT at para 25 in reaching their view as to the relationship of trust and confidence require to be balanced by the factors which we have mentioned above at paras 35 and 36. Another body carrying out that balancing exercise might reach a different view: however we cannot say that the conclusions of the Tribunal were so extravagant that no reasonable Tribunal could have reached them. What the EAT appears to have done is to place their own interpretation on the facts in place of the interpretation favoured by the Tribunal. They were effectively re-weighing the evidence and replacing the judgment of the Tribunal, who saw and heard all the witnesses, with their own judgment, but without the advantages which the Tribunal had. The EAT does not appear to have given sufficient regard to those advantages. In our view the decisions of the Tribunal cannot be described as perverse, and the reasons given by the EAT for implying that the original Tribunal might be partial do not withstand scrutiny.

[41] Apart from the issue of practicality referred to at para 32 above, another factor to be put into the balance in deciding whether or not to remit to the same Tribunal is the professionalism of the Tribunal. As was pointed out in Sinclair Roche & Temperley v Heard, para 46.6:

"......... the appellate tribunal will, in our view, ordinarily consider that, in the absence of clear indications to the contrary, it should be assumed that the tribunal below is capable of a professional approach to dealing with the matter on remission...................... It follows that where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a "totally flawed" decision described at 46.4), then, unless it appears that the tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal."

In conclusion, to echo the language in Sinclair Roche & Temperley v Heard, we are satisfied that this is not a case either where bias or partiality was involved, or indeed prejudgment, nor where there was a complete mishandling of the case. We are confident that, like any judge or judicial body, this Tribunal will approach its renewed task, free of preconceptions and with an open mind.

Accordingly we will refuse the appeal insofar as it seeks to restore the Tribunal's order for reinstatement, but allow it insofar as it seeks to have the case remitted to the original Tribunal to proceed as accords.