Foster v Somerset County Council

J U D G M E N T

1. LORD JUSTICE TUCKEY: On 31 July 2003 an Employment Appeal Tribunal, presided over by Elias J, allowed Mrs Foster's appeal from the decision of an Employment Tribunal dismissing her complaint that she had been unfairly dismissed by her former employers, the Somerset County Council. The EAT substituted a finding that she had been unfairly dismissed but found that she had contributed 90 per cent to her dismissal. Although they had dismissed her claim, the tribunal said that they would have found that she had contributed 100 per cent. Both sides appeal the EAT's decision with the permission of this court.

2. The council accept that the EAT's finding of unfair dismissal was correct, but say that it had no jurisdiction to reduce the finding of contributory fault because this was not the subject of appeal to it and was anyway a finding of fact with which they could not interfere. Mrs Foster says that, having found that she was unfairly dismissed, the EAT should have remitted her claim for rehearing by another tribunal. In support of this contention she challenges the tribunal's findings of fact and seeks to rely on further evidence.

3. The facts found by the tribunal can be shortly stated. Mrs Foster was employed by the council as an administrative assistant in the Personnel and Administrative Department of the County Fire Brigade from August 1999. One of her line managers was Mrs North who reported to Mr Kemp the Chief Fire Officer.

4. In the first half of 2000 Mrs North and Mr Kemp had concerns about the way Mrs Foster was carrying out her job and on several occasions expressed these concerns to her. Mrs Foster alleged that on 19 June 2000 (and on other occasions) she had been severely criticised and subjected to bullying and verbal abuse by Mrs North. The tribunal described Mrs Foster's evidence as confusing, inconsistent and lacking credibility. They did not accept her evidence about what happened on 19 June 2000.

5. From then on it is clear that things in Mrs Foster's department went from bad to worse. Mediation meetings in August and November under the auspices of senior council personnel officers achieved nothing. The tribunal concluded in paragraph 6 of their extended reasons:

"We are in no doubt having carefully considered all the evidence that the applicant was wholly responsible for this situation as a result of her allegations of bullying and harassment for which not one shred of evidence has been produced and her critical and challenging attitude towards her colleagues compounded by her practice of openly recording in a notebook things said to her by them."

For some time Mrs North had felt unable to work in the same room as Mrs Foster and by December was working from home. Mr Kemp described the department as being traumatised by her, and one of her assistants spoke of her dread of going into work.

6. By December Mrs McCririck, the Council's Group Manager for Employee Relations, decided that the only options for Mrs Foster were redeployment or agreed termination. After Mrs Foster had refused to meet to discuss these options Mrs McCririck decided to send her on garden leave. Mrs Foster last worked on 8 December 2000 and remained on sick leave until her employment was terminated on 24 May 2001.

7. Two further unsuccessful attempts, backed by threats of disciplinary action, were made to get Mrs Foster to attend a meeting with Mrs McCririck in December. The following month the council referred her to a consultant occupational physician with a view to discovering, among other things, whether she was fit to attend such a meeting. Mrs Foster said she was unable to attend the first appointment with the consultant and as a result of what the tribunal described as "her further procrastination" she did not see the consultant until 5 March 2001. By 28 March 2001 the consultant was able to advise that she could attend the meeting subject to specified conditions.

8. Two dates in April for such a meeting on these conditions were offered to Mrs Foster. she declined the first because she said she had a prior arrangement, and the second, which the council said would be the final invitation to resolve the issue, because she said the council were being totally confrontational.

9. On 9 May the council made a formal offer of redeployment stressing that this was their preferred option. Mrs Foster did not respond. In an attempt to end the continuing stalemate, on 24 May Mr Kemp wrote to Mrs Foster saying that, as a result of her persistent failure to work towards a resolution, she had repudiated her contract of employment which the council accepted.

10. Mrs Foster appealed against the decision, but the council said that, as they had not terminated her employment, she had no right of appeal under their internal procedures.

11. The hearing before the tribunal lasted four days. Mrs Foster was represented by solicitors and counsel, she gave evidence. A number of witnesses were called on behalf of the council.

12. The tribunal correctly found, contrary to the council's contention, that Mrs Foster had been dismissed because it was the council's act in accepting the repudiatory breach which terminated her employment. On the facts, which I have summarised, they found that by the 24 May 2001 the council had reached the end of the road. They said at paragraph 19:

"....in our judgment the dismissal fell within the range of reasonable responses open to an employer in the circumstances in which the respondent then found itself and substantively the applicant's dismissal was fair."

13. But they also had to consider whether the dismissal was procedurally fair. On this issue they concluded that this was an exceptional case where the respondent's failure to follow a formal disciplinary procedure did not render the dismissal unfair. They went on to say in paragraph 25:

"If that judgement is wrong such that the applicant is to be regarded as having been unfairly dismissed due to the respondent's procedural failure, we nevertheless take the view based on all the evidence that the applicant would still have been dismissed even if the respondent had followed a full disciplinary and appeal procedure. In our judgment, she has not suffered any injustice and, further, she has contributed 100% to her dismissal with the consequence that it would not be just and equitable to award her any compensation."

It is to be noted that in this paragraph there are two findings of fact: (1) if, contrary to their conclusion, Mrs Foster had been unfairly dismissed, she had contributed 100 per cent to her dismissal so it would not be just and equitable to award her any compensation; and (2) if the council had followed a full disciplinary and appeal procedure, Mrs Foster would still have been dismissed.

14. Mrs Foster appealed against the tribunal's decision. By now she was acting in person with the assistance of her husband, who has appeared for her today and did so before the EAT. I should pay tribute to the way in which he has put the case. He did so clearly and reasonably and was a model of courtesy, although obviously he and his wife feel very strongly about this matter.

15. Appeals to the EAT, and from the EAT to this court, lie only on questions of law. The notice of appeal to the EAT contained a host of challenges to the tribunal's findings of fact. It was rejected for this reason by the registrar but Mrs Foster was dissatisfied with that decision and on 8 May 2003 the matter came before Judge Peter Clark for reconsideration under rule 3(10) of the EAT Rules. He decided that there was an arguable question of law as to whether the tribunal had properly considered whether the procedural deficiencies rendered the dismissal unfair.

16. The appeal on this point came before Elias J and two lay members. Their conclusion on this point is to be found in paragraph 17 of the judgment where they said:

"We do have sympathy for the Tribunal in this case. It clearly took the view with much justification, that the Appellant was a difficult, uncooperative and truculent employee who was not willing to cooperate in seeking to resolve difficulties that had arisen at work. They concluded in terms that she would not be prepared to attend any meeting save for the purpose of her reinstatement. Nonetheless, we unanimously take the view that in this case it was not open to the Tribunal to say that a reasonable employer could have dispensed with the relevant procedure.... There are a number of factors which lead us to the conclusion that a reasonable employer could not have taken the view that the procedures would have been a waste of time in this case. First, the employee had not been given a warning. It had been indicated that disciplinary proceedings would be taken, but she was not aware that dismissal would take place. Giving her a final warning may well have caused her to adopt a more realistic attitude to her situation; the threat of imminent dismissal certainly focuses the mind. In addition, this is not a case of somebody caught stealing red-handed or anything of that kind."

I interpolate that this was never a case in which the council alleged or could have alleged gross misconduct or the like against Mrs Foster. The judgment continued:

"It was her attitude above all that was causing difficulties, and that is something which was potentially capable of change, however unlikely it may have appeared to be. Finally, we think it is relevant that the procedures were infringed in such a fundamental way. It is a significant matter to deprive somebody of their employment without even the opportunity to state a case; there must be very strong evidence to justify the inference that the basic principles of natural justice could be reasonably dispensed with."

17. So in that paragraph, applying the reasonable employer test, the EAT found that Mrs Foster's dismissal was procedurally unfair. That was the only point of law identified by Judge Clark in his judgment and the order which he made.

18. Apart from the comfort of a finding that she had been unfairly dismissed, where did that leave Mrs Foster? The council submitted to the EAT that the findings in paragraph 25 of the tribunal's decision could not be challenged on appeal. They were not the subject of appeal, and were findings of fact with which the EAT had no jurisdiction to interfere. The EAT dealt with these submissions in paragraph 22 where it said:

"We recognise that it may be said to be unfair to a respondent to allow grounds to be argued that were not specifically raised. But we must also bear in mind that in order for our decision to be consistent there ought to be some reduction in the level of contributory fault, and moreover there would be an injustice to the employee if we did not make that amendment to the contribution fault finding, which is really consequential on the conclusion we have reached in relation to unfair dismissal."

19. They had earlier said that a 100 per cent contribution was only justified where the employee's conduct wholly caused the dismissal, but they did not think this was such a case. The judgment continued:

"In order to be consistent with our finding that had procedures been complied with, there is a possibility albeit we accept very slight that the employee might have taken steps which might have avoided dismissal we do not think that a finding of 100% contributory fault can be properly applied here."

20. On their appeal to this court, the council submits that the EAT ought to have accepted their submissions about jurisdiction. First, Judge Clark had defined the scope of the appeal whether or not Mrs Foster had challenged the finding of contributory fault in her notice of appeal. The EAT therefore had no jurisdiction to consider the finding of contributory fault. Even if the EAT did have jurisdiction, it could not have interfered with the finding because it was a finding of fact, which the authorities show the EAT should have respected unless it was shown to be perverse. Obviously it was not perverse.

21. As to the scope of the appeal, Mr Foster tells us that; in the course of the hearing before Judge Clark, the judge said that if the appeal succeeded it would be for the EAT to decide whether the finding of contributory fault should be amended accordingly. Although Mrs Foster's notice of appeal did not specifically challenge the findings, it did challenge the findings of fact upon which it was based.

22. One is bound to ask what would have been the point of the appeal if the EAT had not been able to consider the finding of contributory fault? Was it implicit in Judge Clark's order that this finding could be reconsidered?

23. Mr Livesey, for the council, relies on an unreported decision of the EAT in Coxon v Rank Xerox UK Ltd (1116/99). In that case the EAT were highly critical of a tribunal's conclusion that the applicant had not been unfairly dismissed. However, as in our case, the tribunal had made a finding of 100 per cent contributory fault in any event. The applicant had not appealed that finding. After referring to the findings of fact and the assessment of the applicant which the tribunal had made, Wall J, giving the judgment said at paragraph 54:

"In these circumstances, we can see no way the Appellant can seek to overturn the finding made by the Tribunal that she contributed 100% to her own dismissal. We therefore agree with [counsel] that on the question of unfair dismissal, there would appear to be no point in returning the matter to the Tribunal for it to reconsider its position on compensation."

24. It is not entirely clear whether the reason for this decision was that the appellant had not appealed, a point which had troubled the EAT, or that the finding of contributory fault was one of fact, or both. Whatever the reason, it shows that this EAT felt bound by the tribunal's decision and was not prepared to reconsider the finding of contributory fault in the interests of consistency with its decision that the dismissal was unfair or for any other reason. This rendered the appeal largely academic, although there was a finding of unfair dismissal.

25. Elias J distinguished Coxon on the basis that the EAT had made no finding in that case that the dismissal might have been avoided had the proper procedures been complied with. But this illustrates the problem with the EAT's decision in our case as I shall explain.

26. As to the scope of the appeal, I think the council are probably right, despite my reluctance to accept that this meant that Mrs Foster's appeal to the EAT was to some extent academic. But it is not necessary to decide the appeal on that ground and so I turn to consider the council's second point on the assumption that the EAT did have jurisdiction to reconsider the finding of contributory fault.

27. The authorities about this are perfectly clear. A finding of contributory fault is a finding of fact with which the EAT can only interfere if it is perverse. We were referred to Hollier v Plysu Ltd [1983] IRLR 260 where this court allowed an appeal from a decision of the EAT which had reduced the percentage of contributory fault found by the tribunal. The headnote of the case reads:

"The EAT is not entitled to interfere with an Industrial Tribunal's conclusion on the question of contribution unless the Tribunal have gone wrong in law or their conclusion is one which no reasonable Tribunal could have reached on the evidence. The Tribunal's function in considering this matter is to take a broad commonsense view of the situation to decide what, if any, part the employee's own conduct played in causing or contributing to the dismissal and then, in the light of that finding to decide what, if any, reduction should be made in the assessment of the employee's loss. The apportionment of responsibility for the dismissal is so obviously a matter of impression, opinion and discretion that there must be either a plain error of law or something like perversity to entitle an appellate Tribunal to interfere with the decision of the Tribunal which is entrusted by Parliament with the difficult tasks of making the decision."

28. In their judgment the EAT do not suggest that the tribunal's finding of contributory fault was perverse. It seems to me that they could not have thought it was because they only reduced the percentage from 100 per cent to 90 per cent. The reason given for reducing the percentage was that Mrs Foster might have avoided dismissal if the council's procedures had been complied with. This was a finding of fact which was contrary to one of the findings in paragraph 25 of the tribunal's decision. That finding was not appealed to the EAT and, even if it had been, it was not open to the EAT to make a finding of their own, contrary to that of the tribunal, subject again to any question of perversity.

29. It seems to me, with the greatest respect to this most experienced EAT, that it assumed that, because the dismissal was procedurally unfair judged by the objective standard of a reasonable employer, Mrs Foster might not have been dismissed. That did not follow. The tribunal had found as a fact that she would have been dismissed in any event. Furthermore it was not necessary to make such a finding in the interests of consistency. A finding that dismissal is procedurally unfair focuses on the employee's conduct from the perspective of a reasonable employer. A finding of contributory fault focuses on the conduct of the employee.

30. For these reasons I think that the EAT, in an entirely understandable attempt to give substance to their conclusion that the dismissal was unfair, fell into error. It was not open to them to interfere with the tribunal's findings of fact on causation and contributory fault. I would therefore allow the council's appeal.

31. I turn to the cross appeal. The main point made by Mr Foster is that, having found the dismissal unfair, the EAT should have remitted the case for a rehearing before another tribunal. The EAT did have power to do this and were asked to do so by Mr Foster. They said:

"We wholly reject that. It is plain that this tribunal carefully considered all the evidence over a hearing lasting four days".

I agree. A rehearing in this case was out of the question; remission to the same tribunal would not have helped Mrs Foster since they had already made the relevant findings of fact in paragraph 25 of their reasons.

32. I have attempted to explain to Mr Foster that the cross-appeal is impossible. I regret that he was misled into believing that he could reopen the whole matter on behalf of his wife by the permission granted by Mummery LJ. It did not.

33. Mrs Foster's appeal to the EAT was confined to the single point of law upon which she won. It is not open to her to argue any other points of law before this court. Mrs Foster would like to re-argue the facts and put in further evidence to support those arguments. She was not allowed to do that in the EAT and she certainly cannot do so in this court.

34. Mr Foster gave us some examples of the evidence which she wished to adduce; evidence from a witness who would have contradicted something recorded in one of the internal minutes which the council produced at the hearing, and evidence to contradict the council's assertion that they had delivered a letter to Mrs Foster's house. That is evidence which challenges the facts found by the tribunal. It is not evidence which could have been adduced in the EAT and certainly is not evidence which this court can admit. The fact finding tribunal is the Employment Tribunal. All evidence available upon issues of fact should be put before that tribunal.

35. Mr Foster also wanted to put before us a psychiatric report to show the effect that the situation at work had upon his wife. I can well understand that anyone in this situation would have been much affected by what was happening. I am perfectly prepared to accept that it did affect her health. But this is not something which affects the questions of law which this court has had to consider. .

36. For those reasons I would dismiss Mrs Foster's cross-appeal.

37. The result is that the council's appeal is allowed, the tribunal's decision stands and the cross-appeal is dismissed.

38. LORD JUSTICE RIX: I agree. I recognise that my Lord's analysis means that the appeal to the EAT was always likely to be academic in terms of any financial compensation, but it was not entirely academic. A finding of unfair dismissal is of real benefit and perhaps satisfaction to Mrs Foster. But even if the appeal had been entirely academic, that would not enable this court to give effect to the EAT's alteration of contributory fault from 100 per cent to 90 per cent.

39. The system whereby the gateway to an EAT appeal is guarded by the rule 3.10 procedure, in which only the applicant is represented, may well result in a point being given leave to appeal which turns out to have been academic. As it is, the reduction from 100 per cent contributory fault to 90 per cent contributory fault itself indicates that the EAT ought not to have interfered with the finding of fact which, by reference to that marginal change of only 10 per cent, was plainly not considered to be perverse.

40. In conclusion, I too would pay tribute to Mr Foster, whose preparation of the documents in this case, written submissions and oral advocacy demonstrate that Mrs Foster has been well served by her husband's representation.

41. LORD JUSTICE NEUBERGER: I agree with both judgments. There is nothing I can usefully add save specifically to echo the tribute that has been paid to Mr Foster in the way he has represented his wife both orally and in writing.

Order: Appeal allowed with costs limited to the costs of the appeal assessed in the sum of £2,500. Cross-appeal refused.