The appellant won her claim for unfair dismissal at the Employment Tribunal after the court ruled that the respondent had failed to hold a competition for the one remaining job after reducing two posts to one. This appeal relates to the level of compensation awarded to the appellant for the unfair dismissal: the ET made a nil award because they took the view that even if a proper competition had taken place between the appellant and the person who actually got the job, the appellant had a nil chance of getting it herself. The appellant lost her claim for race discrimination at the same ET, which on appeal was allowed to proceed to a new Tribunal, the reason being that the ET had failed to identify the nature of the job that the appellant was doing, the job the other employee was doing and the job that was being created in the reorganisation. Thus they could not evaluate the respondent’s case that they had not discriminated against the appellant but that they had mistakenly assumed that the other employee could just be slotted into the new job. The EAT refused the appellant’s application to appeal against the remedy judgment since, in their opinion, it had no chance of success.

The Court of Appeal decided that it was perverse of the Tribunal to find that the appellant had a zero chance of success at getting the job since they had made no findings as to the nature of the jobs involved, as indicated in the race discrimination appeal. Therefore they could not determine which of the two candidates would have the better chance of getting the job, let alone deciding that the appellant would have a nil chance. They also said that, if this appeal succeeded, it would be best if both claims, of race discrimination and unfair dismissal, could be heard at the same Tribunal.

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Case No: A2/2009/0001

Neutral Citation Number: [2010] EWCA Civ 982

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(HIS HONOUR JUDGE PETER CLARK)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday, 9th May 2010

Before:

MRS JUSTICE BLACK

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Between:

DR ARHIN (Appellant)

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ENFIELD PRIMARY CARE TRUST (Respondent)

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(DAR Transcript of

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The Appellant Appeared In Person.

The Respondent Did Not Appear And Was Not Represented.

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Judgment

(As Approved by the Court)

Crown Copyright

Mrs Justice Black:

1. The appellant in this appeal is Dr Arhin, who was employed as a consultant in public health by the respondent health authority. The respondent decided to streamline their service and in December 2006 they proposed a reduction in the number of assistant director posts in the appellant's area of work from two to one. The appellant held one of the existing two posts and a Mr Stewart held the other. In early 2007 the appellant was warned that she was at risk of redundancy and then she was given notice of redundancy, which took effect in June 2007, after she had failed in an internal appeal against it. The other assistant director was "slotted in" to the remaining post without any selection process.

1. The appellant brought proceedings before the Employment Tribunal on three bases. The first was that her redundancy was unfair, the second that her dismissal was automatically unfair under section 98A of the Employment Rights Act 1996 because of a failure by the respondent to follow the statutory procedures, and the third was that her dismissal was an act of race discrimination, she being black and Mr Stewart being white.

1. Before the Employment Tribunal the appellant failed on all but the first basis of claim. The Employment Tribunal found that her dismissal was not automatically unfair by virtue of section 98A and that there was no race discrimination, but they found that she was unfairly dismissed. That has been known as the liability decision of the Employment Tribunal and it was given on, I think, 23 January 2009.

1. The reason for the finding of unfair dismissal was the failure of the respondent to hold a competition for the one remaining job to decide between the appellant and Mr Stewart and the respondent's erroneous view that Mr Stewart could be slotted into the remaining post. The reason that the Employment Tribunal refused to find race discrimination was that they could not find it established that the reason for the unfair treatment that they had found the appellant had been subjected to was race. The respondent's explanation had been that Dr Okoli, who was (I am not stating this exactly) somewhat in the role of line manager to the appellant, had felt that the appellant's post had disappeared in the reorganisation and had taken a mistaken view that Mr Stewart's post could be slotted into the new one.

1. In June 2009 the Employment Tribunal gave a judgment known as the "remedies judgment" dealing with the remedies for the unfair dismissal that it had found established. That judgment deals with a lot of points to which reference is also made in the grounds of appeal to this court, but I want to concentrate on the one that is at the heart of what has led me to the view that there is in fact an arguable appeal here.

1. The Employment Tribunal made a nil award of compensation because they took the view that had the competition been held with Mr Stewart and the appellant, the appellant had a nil chance of getting the remaining job. Amongst the reasons for their finding were (paragraph 32, for example, of their decision) that Mr Stewart was already undertaking the majority of the tasks that would be incorporated into the new post, (paragraph 33) that Mr Stewart had experience that was more relevant to the new post than the appellant, and also they found (paragraph 33) that in terms of knowledge and maintaining any efficient workforce and the balance of skills, Dr Okoli, looking at the individuals' previous work and experience, would have concluded that Mr Stewart best fitted the post in the post-reorganisational structure.

1. Following on from their view that the appellant had no chance of obtaining the remaining job, the Tribunal deducted 100% of the compensation that might otherwise have been paid to her.

1. The appellant appealed to the Employment Appeal Tribunal. Insofar as the matters other than the race discrimination issue were concerned, the appeal was initially dismissed on paper. It then came before His Honour Judge Clark under the Rule 3 (10) procedure, in other words for an oral pre-hearing to determine what procedure should be followed for the appeal. The judge identified the 100% deduction point as central. Unless the appellant could succeed in appealing that determination of the Employment Tribunal, then she could not make any progress on any part of the appeal. He took the view that there was no prospect of their finding of the 100% deduction being overturned and he therefore dismissed effectively the entirety of the appeal on that subject.

1. The appellant now seeks to appeal to this court from that and from the Employment Tribunal's findings in relation to her compensation and re-engagement/reinstatement in her former role.

1. Sir Richard Buxton, looking at the matter on paper, gave a decision on 16 March of this year, refusing permission. The matter now before me is the oral renewal of the application for permission.

1. Before I deal with that application, I want, however, to fill in another part of the picture. The race discrimination claim advanced by the appellant in the Employment Tribunal had, it will be recalled, been dismissed. The appellant had appealed against that decision as well and the EAT had taken a different view of that aspect of her appeal and had determined that that had better prospects of success and permitted it to proceed to a full hearing. The full hearing of the appeal on that subject took place before Langstaff J and two other court members on 26 January 2010. The decision was given in March 2010, but was not before Sir Richard Buxton when he considered this matter on paper. The appeal succeeded. There is now available an exceptionally clear judgment from the EAT analysing the acceptance by the Employment Tribunal of the respondent's case that race was not the basis of their decision and that it was in fact made by mistake.

1. The points that are set out in Langstaff J's judgment in relation to the race discrimination issue have a central relevance for this appeal too. One can find them in the skeleton argument of the appellant which was before Sir Richard Buxton, but I hope she will forgive me for saying that in that format they were not as starkly and clearly refined as they became, no doubt in argument before Langstaff J and in his judgment. The upshot of the hearing before the EAT was that the EAT remitted the question of race discrimination for re-hearing before a different tribunal. I am told by the appellant this morning that that is due to take place at the beginning of November this year and is listed for four days.

1. The problem that the Employment Appeal Tribunal had identified with the Employment Tribunal's first liability decision on the question of the race discrimination issue was that the Employment Tribunal did not actually know the nature of the job that the appellant was doing, the job that Mr Stewart was doing and the job that was being created in the reorganisation. Without that information the Employment Appeal Tribunal pointed out that they could not evaluate the respondent's case that they had mistakenly assumed that Mr Stewart could just be slotted into the new job.

1. Langstaff J identifies in his judgment the points in relation to which the Employment Tribunal identified that they were without information. There was, for example, no job description for the new post. Langstaff J also identified the inconsistencies and uncertainties in the Tribunal's approach to the question of the respective jobs. The conclusion of the EAT was that there was an absence of findings "as to what it was the Claimant did, what it was Mr Stewart did, and what it was that the new job was to require of one or other of them". The EAT concluded -- and this of course is the reason for the remission of the matter to a new tribunal -- that there would have to be new findings made on those subjects.

1. The EAT had not seen the remedies judgment when they gave their main decision on the appeal. It seems that they must have been shown that when the parties attended for the argument as to what should flow from the EAT's decision. By the time they came back to announce what they had determined, that is to say that the matter would be remitted to a fresh tribunal, they had seen the remedy judgment and at that point they had identified what they thought to be some aspects in the liability judgment and the remedy judgment which were inconsistent with each other. I find their view on that entirely understandable, having read both judgments myself. I will not rehearse the possible inconsistencies here, but it is clearly arguable that there are such inconsistencies between the two judgments and those inconsistencies may be material to this appeal.

1. To return, therefore, against all of that background to the grounds of appeal proposed by the appellant for the present appeal, at the centre of them is her argument that it was perverse of the Tribunal to find that she had a nil chance of getting the new job that emerged from the reorganisation. It seems to me that it is at least arguable that, having made, as Langstaff J identified, no findings as to the nature of the jobs involved (that is to say, the appellant's job, Mr Stewart's job and the new job), then they could not determine which of the two candidates would have had the better chance of succeeding, let alone deciding, as they did, that there was no chance at all that the appellant could have obtained that job. That is the point that persuades me to grant permission for this appeal to proceed further.

1. I have considered whether I ought to limit the issues that may be heard on the appeal, but there is a degree of complexity about this case and a degree of uncertainty introduced by the fact that it will be returning in any event under the heading of the race discrimination issue to the Tribunal, and it seems to me that it would be wrong for me at this stage artificially to limit the scope of the argument, although I would say to the appellant that Sir Richard Buxton identified the problems that there are with the other grounds of appeal and that she might like to consider how she presents her case on a subsequent occasion. I will not, therefore, limit the issues which can be argued but simply reinforce that it is the question of perversity with regard to the nil chance of getting the job which has persuaded me to the view that I take at the moment.

1. It seems to me that if it were to be possible, this is a case in which it would be helpful if this appeal were to be determined before the Tribunal revisits the question of the nature of the jobs involved in November. At present there is a danger of the matter limping on in various forums rather than being united and one final decision taken on all of the subjects that need determination. The question of the nature of the jobs is relevant in the race discrimination claim. It is also relevant with regard to the question of the unfair dismissal compensation. If the two could be determined in the same Tribunal by remission (if this appeal succeeds) of these issues to that same Tribunal that is determining the race discrimination issue, then that would be a very expedient way of dealing with things. But I say to the appellant that none of this means that you will necessarily succeed on your appeal. I am looking to see whether your appeal is arguable, not whether it will succeed.

Order: Application allowed