Cartwright v King's College, London  EWCA Civ 1146
Appeal against an EAT decision which upheld the Employment Tribunal’s ruling that the respondent had complied with Step 1 of the, now repealed, Statutory Disciplinary Procedures and thus the claimant had not been unfairly dismissed. Appeal succeeded, a finding of automatic unfair dismissal was substituted and the case was remitted to the Employment Tribunal for a remedy hearing.
The claimant was employed as a Non-Clinical Teaching Fellow at King’s College, London. There was a dispute as to whether the claimant was employed as a member of King’s ‘academic’ staff rather than, as King’s claimed, of its ‘academic related’ staff. The point was significant as the King‘s Charter contained special provisions relating to the dismissal of academic staff on the grounds of redundancy. His main role was to develop a new Post Graduate course. Because of the delay in the delivery of this course, the claimant decided to work part time, and embark upon a period of study himself. The new course was due to start in September 2007 but no students had enrolled and the college had failed to appoint anyone to run the course; the college decided that it was not possible to run the course which meant that the question of the claimant’s post possibly becoming redundant was raised. The claimant had various meetings with King's, to discuss redeployment or voluntary severance options but at no time was an explicit written warning of the possibility of redundancy sent to the claimant. Another meeting was convened to discuss the termination of the new course, at which the claimant was informed that if the college could not secure redeployment for the claimant, his contract would be terminated. A letter was sent to him confirming redundancy as a possibility and he was subsequently made redundant. The claimant claimed that King’s had not complied with Step 1 of the Statutory Disciplinary Procedures but the ET disagreed, saying that the claimant was aware very early on that his job was at risk, and that King’s had acted reasonably throughout the process. The EAT considered all 5 grounds of the claimant’s appeal, but was more troubled by the Step 1 statement, saying that it was not clear on what bases the ET concluded that Step 1 had been complied with. However, they agreed with the Tribunal that Step 1 had been complied with, and identified the document that supported this conclusion.
The Court of Appeal overruled the decisions of the lower courts. The letter relied upon by the EAT did not expressly say that if neither redeployment or voluntary severance was available, dismissal for redundancy would or might follow. Step 1 requires the employer to tell the employee in writing about the possibility of dismissal, and so, even if the claimant did know he was at risk of dismissal, this knowledge was gleaned only from what King’s had told him. They therefore concluded that the ET was wrong to dismiss the claim and the EAT was wrong to uphold it.
Case No: A2/2009/1827
Neutral Citation Number:  EWCA Civ 1146
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Underhill, Mr B. Beynon and Mr J. Mallender
Case No: UKEAT/0103/09/ZT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :LORD JUSTICE SEDLEYLORD JUSTICE RIMER
andLORD JUSTICE PATTEN
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DOUGLAS CARTWRIGHT (Appellant)
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KING'S COLLEGE, LONDON (Respondent)
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The Appellant, Douglas Cartwright, appeared in person
Thomas Coghlin (instructed by Pinsent Masons LLP) for the Respondent
Hearing date: 19 May 2010
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Lord Justice Rimer :
- The appellant, Douglas Cartwright, is a former employee of the respondent, King's College, London ('King's'). King's dismissed him on redundancy grounds. His unfair dismissal claim to the London South Employment Tribunal was heard over four days in August and October 2008. He represented himself, assisted by his brother. King's was represented by counsel, Thomas Coghlin. By its reserved judgment, sent with reasons to the parties on 30 December 2008, the employment tribunal (Employment Judge Hall-Smith, Ms S. Campbell and Mr J. Spence) held that Mr Cartwright's dismissal was not unfair and it dismissed his claim.
- Mr Cartwright appealed to the Employment Appeal Tribunal. His appeal was referred to a preliminary hearing. It is usual on such hearings, as in this case, for the appellant alone to be heard. If the appeal tribunal concludes there is nothing in the appeal, it will dismiss it; if it considers that it raises one or more grounds of substance, it will refer it or them to a full hearing on notice to the respondent. The preliminary hearing took place on 13 May 2009 before Underhill J (the President), Mr B. Beynon and Mr J. Mallender. Mr Cartwright addressed the appeal tribunal in person, although he was fortunate to have the help of counsel, Ms Jane Russell, appearing under the Employment Law Appeal Advice Scheme, who also addressed it. The appeal tribunal also had written submissions in opposition to the appeal which had been prepared, at the President's direction, by Mr Coghlin. The appeal tribunal reserved its judgment, which it then delivered on 24 June 2009. It dismissed the appeal.
- On 6 July 2009 Mr Cartwright applied to the appeal tribunal for a review of its decision. On 30 July 2009 the appeal tribunal refused the application for the short reasons attached to its order.
- An appellant's notice for an appeal to this court against the appeal tribunal's dismissal of the appeal had to be filed within 21 days of 24 June 2009. Mr Cartwright filed his notice on 20 August 2009, which was late. He relied on five grounds of appeal, supported by a carefully composed skeleton argument. On 18 December 2009 Maurice Kay LJ, on the papers, extended his time for appealing but refused permission to appeal, saying he could detect no legal error in the employment tribunal's findings. On 23 February 2010 I heard Mr Cartwright's renewed oral application for permission, which I adjourned to the full court, on notice to King's, directing that the appeal on any ground for which permission might be given should follow immediately.
- Mr Cartwright had five grounds of appeal, which at the adjourned hearing he again advanced in person. At the conclusion of his opening, we gave him permission to appeal on all grounds, following which we heard Mr Coghlin's responsive submissions on behalf of King's and Mr Cartwright's reply.
- The issues before us included questions as to whether the employment tribunal was entitled to find (i) that Mr Cartwright was dismissed by reason of redundancy, (ii) that his dismissal was fair, and (iii) that before dismissing him, King's had complied with Step 1 of the 'Standard Procedure' prescribed by the then applicable provisions in Chapter 1 of Schedule 2 to the Employment Act 2002. (Those statutory procedures were repealed by the Employment Act 2008 with effect from 6 April 2009, subject to certain transitional provisions set out in the Employment Act (Commencement No. 1 Transitional Provisions and Savings) Order 2008 (SI 2008/3232)). Before coming to the facts, I will first set out the applicable legislation.
- So far as redundancy is concerned, section 139 of the Employment Rights Act 1996 provides, so far as material:
'(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –
(a) the fact that his employer has ceased or intends to cease –
(i) to carry on the business for the purposes for which the employee was employed by him, or
(ii) to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business –
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish. …
(6) In subsection (1) "cease" and "diminish" mean cease and diminish either permanently or temporarily and for whatever reason.'
- Section 98 (headed 'Fairness') of the 1996 Act provides, so far as material:
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it –
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(ba) is retirement of the employee,
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment….
(4) In any other case where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.'
- Finally, section 29 of the Employment Act 2002 provided that Schedule 2 (prescribing the statutory dispute resolution procedures) was to have effect. Chapter I (headed 'Standard Procedure') of Part I (headed 'Dismissal and Disciplinary Procedures') provided as follows:
'Step 1: statement of grounds for action and invitation to meeting
- -(1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: meeting
- –(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
- –(1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting, the employer must inform the employee of his final decision.'
- It is common ground that if King's had not duly complied with Step 1 before dismissing Mr Cartwright, his dismissal would have been automatically unfair (see section 98A(1) of the 1996 Act, which has since been repealed).
- I take these from the employment tribunal's findings, as supplemented by the documents. Mr Cartwright commenced employment with King's on 4 October 2000 as a Non-Clinical Research Assistant in the Department of Medical Engineering and Physics at Guy's, King's and St Thomas's School of Medicine. He was based on the King's campus at Denmark Hill and his normal working hours were 35 hours a week. His contract was for a fixed term of two years but it was then extended four times, the last extension being till 31 August 2005, by when his salary was £33,646 per annum.
- Mr Cartwright's main interest was in Biomechanics. By 2005 his job involved him in the Centre of Rehabilitation Engineering ('CORE'), part of the Department of Medical Engineering. CORE was led by Dr Alan Turner-Smith, a Reader. It provided an NHS-funded Certificate level (non-degree) course in rehabilitation engineering, one aimed at providing rehabilitation engineers in the NHS who could service and provide technology and devices that were helpful to the disabled. Mr Cartwright's main role was in teaching and administering the course. In 2005 a decision was made to transfer CORE and the Certificate course from the School of Medicine to the Department of Physiotherapy. That led to Mr Cartwright and Dr Turner-Smith moving in September 2005 from the King's campus to the Guy's Hospital campus, where the Department was based. It was headed by Professor Sheila Kitchen.
- In November 2005 Mr Cartwright was issued with a permanent employment contract commencing on 1 September 2005 and enduring until retirement. His job title was that of a Non-Clinical Teaching Fellow in the Department of Physiotherapy at the School of Biomedical and Health Sciences (Guy's Campus); as such, he was a member of King's 'Academic-Related' staff. His terms of employment incorporated the conditions of service set out in Section One of the Handbook for Academic-Related Staff, paragraph 10 of which dealt with the termination of employment. It provided (i) for such termination to be 'by the Principal or his or her authorised representative' after 'appropriate investigation'; (ii) that no appointment should be terminated 'unless the member of staff has been given adequate opportunity to present his or her case to the Principal or his or her authorised representative'; and (iii) for a right of appeal, prescribing the constitution of the appeals committee.
- There was an issue before the employment tribunal as to whether Mr Cartwright was in fact (as he claimed) a member of King's 'academic' staff rather than (as King's claimed) of its 'academic-related' staff. The point was significant as the King's Charter contained special provisions relating to the dismissal of academic staff on the grounds of redundancy. Originally, the relevant provision of the Charter applied also to 'academic-related' staff but in December 1994 the regulations were amended so as to exclude such staff. The tribunal's finding was that Mr Cartwright's post was an 'academic-related' one and that he did not enjoy the special provisions relating to 'academic' posts. There is no appeal against that conclusion but Mr Cartwright's fourth ground of appeal does, however, raise a complaint that King's did not even give him the benefit of the dismissal procedure relating to 'academic-related' staff, although that was not a point he took before the employment tribunal.
- The origins of Mr Cartwright's dismissal can be traced back to the time when King's began to consider phasing out and replacing the Certificate with a Graduate Diploma in Rehabilitation Engineering ('the Diploma'). That was because the Certificate did not meet the Health Professions Council's professional registration requirements whereas the Diploma would: it would provide education at undergraduate and graduate level and would recognise the needs and hopes of rehabilitation engineers to become registered professionals. Mr Cartwright, as a CORE member, was involved in developing the Diploma in consultation with professional colleagues, NHS contractors and Dr Kitchen. He accepted that it would replace the Certificate and was enthusiastic about it. In a self-appraisal in late 2005, he recognised its development as part of his role; and in December 2005 Dr Kitchen's appraisal of him recorded that one of his 'agreed objectives' was the 'development of PG [Post Graduate] level programme to be undertaken'.
- There was, however, going to be a delay in the delivery of the Diploma: an assessment first had to be made of student numbers. Mr Cartwright therefore decided also to undertake a study course in building and he applied for a reduction of his working hours for a period of nine months to enable him to do so, sending his request to Dr Kitchen on 2 August 2006. At that stage, his only work commitments with King's were (i) teaching the remaining students on the Certificate course until the Diploma course started in 2007/2008, and (ii) developing the Diploma. Dr Kitchen agreed to reduce his hours from 35 to 14 a week, or 40% of full time. On 25 September 2006 he was provided with a revised statement of the main terms of his employment contract but his job title remained that of Non-Clinical Teaching Fellow.
- Dr Turner-Smith, who had been involved with CORE, took early retirement in 2006. As Mr Cartwright had informed Dr Kitchen that he was planning a career change, the Health School's Academic Workforce Committee ('HSAWC') asked him to confirm his intention to leave King's, which he did on 3 January 2007. His letter said that he was undertaking a further course of study with a view to moving from his current post in the summer of 2007. It also said that he supported the appointment of a new full-time academic member of staff to take forward the graduate Diploma.
- On 27 February 2007 Mr Cartwright had an appraisal meeting with Dr Kitchen. The appraisal form (signed on 29 May 2007) described his role as the co-ordination of the Certificate and the development of the Diploma. It enquired as to his career aspirations over the following two to five years to which his response was that he was '[c]urrently undertaking further study with a view to qualifying as a Building Surveyor'.
- Dr Kitchen became involved, in consultation with Mr Cartwright, Dr Mayagoitia-Hill and King's Human Resources department, in advertising for a full-time lecturer to lead and deliver the Diploma. Appointment to a new academic post needed authorisation from HSAWC. HSAWC expressed concerns that the business case for the Diploma only included provision for one full-time academic post and one part-time academic-related post. It wanted confirmation that a further academic post was necessary and justifiable.
- On 26 March 2007 Mr Cartwright applied to Dr Kitchen for a 12-month career break commencing on 1 July under King's 'Flexible Employment Policy': he wanted to complete his graduate studies at the University of the West of England, which he was due to do in June 2008. He said that, during his absence, he would be happy to provide continued email advice in respect of the Certificate and Diploma. Dr Kitchen turned down his application by her letter of 19 April. She had taken into account the continued need for the Diploma to be developed and felt that the career break would not provide additional benefit to Mr Cartwright's post.
- In the meantime King's had received applications for a new full-time academic staff member, which Dr Kitchen, in consultation with Mr Cartwright and Dr Mayagoitia-Hill, reduced to a shortlist of two. Both candidates were interviewed on 17 April but neither was considered suitable.
- The Diploma course was due to start at the end of September 2007. No students had applied for it and no lecturer had been appointed for it. On 2 May Dr Kitchen emailed Mr Cartwright, referred to her rejection of his career break request and said she needed to discuss what he planned to do about staying or resigning from his post: she said she needed to plan 'across the department and school all the teaching for next year, including the Grad Dip programme, and we do need to know what you are intending.'
- Mr Cartwright's response on 3 May opened by expressing his shock at the refusal of his career-break request and saying that he intended to reply formally to Dr Kitchen's letter of 19 April. As for the following year's teaching, he reminded her that he and Dr Turner-Smith had been forthright in September 2006 in saying that it was important to make a new appointment to the Diploma without delay, yet no decision to make one was made until February 2007 and the interviews only took place in April 2007. He expressed concern that he was to be viewed as 'the lead' on the Diploma, which he said was 'clearly now inappropriate as we are rapidly approaching the implementation phase'. He said he considered it 'vital that someone is appointed to the lead role on the Graduate Diploma without any further delay'. He said he would continue to lead on the Certificate course and would be happy to support the new Diploma lead in any additional time he might have available: he was by then working only two days a week and he reminded Dr Kitchen that he had applied for a career break from July 2007.
- Mr Cartwright was invited to a meeting on 15 May with Dr Kitchen, Professor Hider and Dr Mayagoitia-Hill to discuss the Diploma but he did not do so as he had an exam on that day. On 17 May Dr Kitchen informed him that as it had not been possible to appoint anyone to the academic post, it was not possible to run the Diploma. The notes of a Heads of Department meeting on the same day recorded that that decision was also fuelled by the low level of student interest in the Diploma.
- As I have said, Mr Cartwright was disappointed that his request for a career break had been rejected. Further communications about that followed, leading at his request to a meeting on 12 June with Dr Kitchen and with Amy Boyton from King's Human Resources department. The tribunal found (paragraph 32) that, in light of the cancellation of the Diploma programme, 'the question of [Mr Cartwright's] post becoming possibly redundant was raised ….' Following this meeting, Mr Cartwright informed Dr Kitchen that he wanted to return to full-time work for King's as from 1 July. This concerned Dr Kitchen because of the reducing workload, the running down of the Certificate (now also being considered) and the cancellation of the Diploma.
- Dr Kitchen proposed a meeting on 3 July to discuss the proposed return to full-time work, one at which Ms Boyton was to be present. Mr Cartwright's response, on 2 July, was that it appeared that the meeting was to be a more formal one than he had expected and that as it related to his employment contract, he wanted to be represented by his union, the UCU. As the union could not provide anyone at such short notice, he asked for the meeting to be re-scheduled. He also asked for a 'rough agenda' of the issues to be raised. Dr Kitchen's response was that she was concerned to 'get this moving' as his request was to return to full time work as from the day before and that she 'would not have thought an agenda to be the issue'. From this point onwards in the story, I will set out verbatim material parts of certain of the exchanges between the parties: they are relevant to a consideration of whether King's ever complied with Step 1 of the procedure prescribed by Schedule 2 to the Employment Act 2002.
- Mr Cartwright responded to Dr Kitchen by pointing out that he had now returned to work full-time and saying:
'3. I then received your email of last week which appeared to invite Keith Newton and Amy Boyton, and possibly also Roger Morris to the proposed Tuesday meeting. If there is to be a formal meeting involving any of these colleagues I feel it would be very useful if (a) the purpose of the meeting was clarified; (b) there was at least a rough agenda; (c) the proposed invitees and their role were made known to me. This will allow me to be fully prepared and thus avoid the possibility of wasting the time of these busy people. If the proposed meeting involves my contract of employment, as it appears to, then I would want to have UCU representation at the meeting.
- I understand from a very recent conversation that you do not see a role for me in the Academic Department of Physiotherapy from January 08. In those circumstances I understand that the two options to be considered in relation to the remainder of my contract to retirement would be redeployment and a negotiated voluntary severance agreement. I understand in such circumstances it is normal for a meeting to be arranged with HR. I would support such a meeting and would welcome this being arranged as soon as reasonably possible. I am not against you inviting other managers to that meeting. However, the greater the number of people involved, the more difficult it will be to arrange a mutually agreeable time. I would suggest a meeting in the week beginning 9th or 16th July.
- Dr Kitchen replied briefly on the same day (2 July), saying that they needed to speak to Mr Cartwright that week and that the meeting should be with her, Ms Boyton and Mr Newton (King's Senior Assistant College Secretary). She offered alternative times on 5 and 6 July. Mr Cartwright responded as follows:
'I would ask you to please have some sensitivity in this situation.
Do you not realise how threatening it is to be called to a meeting with HR and management on an urgent basis and without a specified purpose or agenda in a situation where I have effectively been told my job is at risk?!
I would not like to believe that this is a deliberate attempt to intimidate and would ask you therefore to please be more open with your agenda which has already been asked for in two previous emails.
I have offered two weeks from the 9th of July for a formal meeting and that seems reasonable. However, if there is a genuine reason for a more urgent meeting then I would, of course, do my reasonable best to accommodate it.'
Dr Kitchen's reply on 3 July was, so far as material, as follows:
'The main purpose of the meeting involving yourself, [Mr Newton], [Ms Boyton] and me is to
- update you on plans for the rehabilitation engineering provision
- review the implications of the planned changes in provision for students/staff
- discuss with you the specific implications of the changes for your position
We recognise that you may wish to bring a colleague to the meeting. [Ms Boyton], [Mr Newton] and I are available at 10am on 5 July or 11am on 6 July. Please could you let me or [Ms Boyton] know if either date is convenient for you.'
- The meeting took place on 6 July, attended by Mr Cartwright, Dr Kitchen, Ms Boyton and Mr Newton. The tribunal's findings (paragraph 35) as to what happened at that meeting were as follows:
'… there was discussion about the discontinuation of the Certificate, namely by the end of January 2008, and [Mr Cartwright] was informed by Dr Kitchen that the ending of the Certificate would affect his role which was then solely focused on the Certificate. [Mr Cartwright] was asked if he was interested in looking at redeployment options and he said that he was and he enquired whether a voluntary severance arrangement was a possibility. Ms Boyton agreed to consult the finance department about such a possibility and [Mr Cartwright] was also told there was not enough work for him to undertake on a full-time basis. [He] was additionally informed that a formal consultation period of ninety days would follow and that [King's] would explore redeployment options with him.'
- On 9 July Ms Boyton wrote to Mr Cartwright (by a letter copied to his union representative) summarising the outcome of the meeting as follows:
'I am writing following our meeting held on Friday 6 July 2007, during which we reviewed your contractual arrangements, in accordance with our letter dated 25 September 2006.
We confirmed that the Rehabilitation Engineering programme will no longer run at [King's] beyond the current cohort of students, and no new cohort of students have therefore been recruited. In relation to your role, which we agreed is currently focussed on the Rehabilitation Engineering programme, we discussed the existing cohort which comprises seven continuing part time students who will finish by January 2008. We also reviewed other possible responsibilities within the Department of Physiotherapy and agreed that there were not sufficient additional functions to make your role up to a full-time position. Unfortunately in light of this review there is insufficient work relating to this programme to warrant an increase in your status to full-time, and therefore your contract with the College, shall remain 0.4 FTE until further notice.
It was also agreed that I would meet with you after 16 July to discuss the option of redeployment and that by the end of July 2007 I would investigate whether voluntary severance was an option available to you.'
- The tribunal found (paragraph 37) that Mr Cartwright accepted that the issue of redundancy had been raised at the meeting of 6 July and that even before the meeting he was aware that his job was at risk, as reflected in his email of 2 July (quoted in  above). They found that, by the time of the meeting, he knew that, because of the running down of the Certificate course and the termination of the Diploma programme, his job was at risk and dismissal from his post was a possibility.
- Correspondence followed between Mr Cartwright and Ms Boyton about his returning to full-time status. Mr Cartwright sent a long email to Ms Boyton on 19 July recording that there was apparently a disagreement on his current hours of work, which he felt was unsatisfactory and wanted to resolve. He said he had returned to full-time work on 1 July in line with what he understood to be his contractual obligation and any variation from that had to be by mutual consent. He said he would continue to work full-time 'whilst negotiations on severance/redeployment continue.' He said that although discussion of his contractual arrangements had not been on the agenda for the meeting, there had been a discussion of his working hours. He concluded his email by confirming as follows the areas on which he thought all were agreed:
'(a) We are agreed that [Dr Kitchen] has advised that she does not see a suitable full or part-time role for me in the academic department of physiotherapy after the graduation of the final cohort of rehabilitation engineering students in January 2008.
(b) We are agreed that suitable options for consideration in these circumstances are redeployment and voluntary severance. You have kindly agreed to meet with me to discuss the option of redeployment. You have also agreed to investigate the voluntary severance option.'
- On 6 August Ms Boyton emailed him in reply to confirm that he had returned to full-time work on 1 July and that the arrears of pay due to him for July would be added to his August pay. She also wrote to him separately on the same day, as follows (the letter was headed 'Re: Termination of the Rehabilitation Engineering Programme'):
'I am writing to invite you to attend an individual consultation meeting on Thursday 9 August 2007 at 11.30am on the Guy's Campus, room to be confirmed. I appreciate this invitation is very short notice however; I am attempting to convene the meeting prior to annual leave commitments. If you would like to rearrange this meeting please contact me as soon as possible.
The meeting will be attended by [Dr Kitchen], [Mr Newton] and [Ms Boyton].
I would like to inform you that you have the right to be accompanied at the meeting by a trade union representative or a work colleague.
Please can you confirm you attendance or inform me if you would like to rearrange the meeting by [and contact details were given]. In the mean time if you have any queries, please do not hesitate to contact me.'
- That meeting took place, and the tribunal's findings about it were as follows:
'39. … [Mr Cartwright] was informed that it was the first stage of the consultation process which had taken place as a result of the Rehabilitation Engineering programme and the effect it would have in respect of [his] role as Non Clinical Teaching Fellow.
- [Mr Cartwright] was informed that it was [King's] intention to seek redeployment for [him] but that if this was not secured his contract of employment would terminate on 31 January 2008. It was also agreed that Mr Newton and Professor Morris would explore at [Mr Cartwright's] request voluntary severance and that Amy Boyton would work with [him] to identify possible redeployment opportunities and she requested a copy of [his] CV to assist her in such process. ….'
- Those findings reflect the outcome of the meeting as also summarised in Ms Boyton's letter to Mr Cartwright of 15 August:
'I am writing to confirm the outcome of our first individual consultation meeting held on Thursday 9 August 2007. Present with you at this meeting were [Dr Kitchen] … [Mr Newton] … and myself.
As discussed this meeting was convened to formally advise you that this was the first stage of the consultation process. You were given the right to representation at this meeting but agreed to continue without your trade union representative present. The consultation process is a result of the termination of the rehabilitation engineering programme and the effect this will have in respect of you and your role as Non-Clinical Teaching Fellow. As discussed, it was agreed that the programme will terminate on 31 January 2008 and it is the College's intention to seek redeployment for you before this date, however, if alternative employment is not secured this may lead to your contract terminating on 31 January 2008.
The following outcomes were also agreed:
We will work together to identify possible redeployment opportunities. I am awaiting a copy of your CV to assist me in this process.
Keith Newton and Professor Morris will explore, at your request, voluntary severance estimates and the outcome of these discussions will be communicated to you as soon as possible and hopefully by the beginning of September.
In light of the current circumstances, as advised by [Dr Kitchen], there is insufficient work relating to the programme to warrant a full time member of staff and therefore your contract, with the College, shall revert to 40% FTE. From 6 September 2007, allowing for a 28 day consultation period from the date of this meeting, your role will become 40% FTE. During this 28 day period we will work together to identify other opportunities to increase your hours of work.
If you should wish to discuss any of the above please do not hesitate to contact me on [telephone number given].'
- On 10 September Ms Boyton emailed Mr Cartwright to explain that she had been looking for suitable redeployment opportunities but had not yet come up with anything. On 1 October, however, she emailed him details of three vacancies at King's. He responded on 2 October expressing an interest in one post, that of Education Adviser/Disability Mentor for the School of Medicine. He did not respond to Dr Kitchen's offer to ask colleagues in posts in which he was interested if he could shadow them for a few days.
- On 5 October Ms Boyton sent Mr Cartwright an important email. She re-confirmed his return to full time employment and continued:
'As you have already been advised the Rehabilitation Engineering Programme will terminate on 31 January 2008. The meeting I arranged with you on 9 August 2007 was convened as the first formal consultation meeting to discuss the programme termination and the impact this will have on your position. As a result of the programme termination you have been advised that your post is at risk and this may lead to a possible redundancy situation.
I would like to reiterate that it is the College's intention to seek to secure you suitable alternative employment prior to 31 January 2008. However, it is my obligation to advise you that if this process of redeployment is unsuccessful you may be made redundant when the programme terminates.
I would like to advise you of the key stages between now and the 31 January 2008. The consultation process to seek to secure you suitable alternative employment has already begun. On 31 October 2007, in accordance with the notice detailed in your terms and conditions which forms part of your contract of employment, you will be issued with formal notice of the termination of your contract. However, this formal notice may not result in the actual termination of your contract on 31 January 2008 should we be successful in finding you suitable alternative employment. One month prior to the 31 January 2008 you will be given a final notice letter, which will include details of any severance payment, but this will not be binding until your final salary is calculated. If we are unsuccessful in seeking redeployment for you and you are given formal notification of redundancy we will advise you of your right to appeal. Throughout this time I will continue to actively seek suitable redeployment opportunities and you are also required to work with me in order to achieve this.
Any severance payments calculated will be provisional and will be based on your current contract of employment which is full time.
As your current duties will be phased out in line with the Rehabilitation Engineering Programme termination, please ensure that you meet with [Dr Kitchen], at the earliest opportunity, to discuss working arrangements until this time.
I have arranged to meet with you at 3 pm on Thursday 11 October to continue to work with you to identify possible suitable alternative employment.
If you have questions relating to any of the above please to not hesitate to contact me.'
- On 11 October Mr Cartwright and Dr Kitchen agreed the work activities he should undertake until the end of January 2008. On the same day Mr Cartwright had a meeting with Ms Boyton at which they discussed possible severance payments, following which on 18 October Ms Boyton wrote to him with a provisional figure of £23,513 if he was made redundant on 31 January 2008.
- On 26 October Mr Cartwright applied (seven days late) for the Education Adviser/Disability Mentor post. He had an interview on 7 December. John Halliday, Senior Lecturer in Pharmacology at King's, was on the interview panel and gave evidence as to how and why Mr Cartwright did not impress the panel, which was unanimous that he should not be considered for the post, as he was informed on 20 December.
- In the meantime, on 31 October Ms Boyton had informed him that the funding supporting his role as a Non-Clinical Fellow in the Department of Physiotherapy would expire on 31 January 2008; and that in the absence of such funding, his employment would cease. Ms Boyton had, by the time of the tribunal hearing, ceased employment with King's and did not give evidence. The tribunal accepted other evidence from King's that she should not have made any reference to the funding position. It found (paragraph 49) that:
'… the reason for [Mr Cartwright's] subsequent dismissal was the termination of the Diploma programme and the running down of the Certificate. On the evidence before the Tribunal we found that the reference to funding was an error and that questions of funding were not involved in the process which led to the termination of [Mr Cartwright's] contract of employment.'
It was part of Mr Cartwright's case, which I would accept for present purposes, as did the appeal tribunal, that in fact King's had funding for his post for an indefinite period.
- On 19 December Ms Boyton wrote to Mr Cartwright again, saying that the funding that supported his role would expire on 31 January 2008 and that 'in the absence of alternative funding being forthcoming' she regretted that she had to give him notice that his employment as a Non-Clinical Teaching Fellow would cease on that date. If it did so cease, he would receive an enhanced redundancy payment provisionally assessed at £23,513. Her letter told him of his right to appeal against the dismissal. Mr Cartwright sought an extension of time for appealing but, in the event, did not appeal, for which he gave a reason to the tribunal which it regarded as unconvincing (paragraph 51). He also contended before the tribunal that the reason behind the refusal to allow him a career break was to avoid making him redundant when he had reached 50, at which age he would have been entitled to enhanced redundancy benefits. The tribunal rejected that contention.
- Mr Cartwright's claim to the employment tribunal asserted that he was unfairly dismissed, as to which section 98 of the Employment Rights Act 1996 was the relevant provision. He also alleged that his dismissal was automatically unfair, under the then section 98A, on the grounds that King's had not complied with Step 1 of the statutory procedures prescribed by the then applicable provisions of Schedule 2 to the Employment Act 2002. King's case was that it had duly complied with those statutory procedures and that Mr Cartwright had been fairly dismissed on the grounds of redundancy.
The decision of the employment tribunal
- The tribunal cited section 139(1)(a) and (b) of the Employment Rights Act 1996. It directed itself as follows with regard to whether or not the dismissal was unfair:
'56. In circumstances where a genuine redundancy situation exists within the meaning of section 139 of the 1996 Act, the Respondent employer still has to act reasonably in dismissing an employee for the potentially fair reason of redundancy. Thus the Tribunal will scrutinise matters such as the fairness of the selection procedure, if appropriate the pool for selection, and whether there has been any reasonable consultation with the employee before the decision to dismiss for reasons of redundancy has been taken. The Tribunal must ask itself whether the Respondent employer throughout the entire process leading to the decision to dismiss the employee has acted within the range of reasonable responses available to a reasonable employer.'
It also summarised Steps 1 and 2 of the statutory dismissal procedure prescribed by Schedule 2 to the Employment Act 2002.
- Its conclusions were that in circumstances in which the decision had been made to discontinue the Certificate and not to implement the Diploma, Mr Cartwright's role had become redundant within the meaning of section 139. It held that funding 'had not been an issue' and that King's had acted reasonably throughout the process, pointing out that when he resumed full-time work in September 2007 he was provided with stopgap work until the termination of the Certificate in January 2008. It found that there was insufficient work for him to undertake following such termination. It held that King's had complied with Step 1 of the statutory procedure, disposing of that point as follows:
'60. We conclude that [King's] complied with step 1 of the statutory procedures and [Mr Cartwright] himself before the meeting on 6 July 2007 understood that his job was at risk as evidenced in his email dated 2 July 2007 to Dr Kitchen, 219. The letter to [Mr Cartwright] of 6 August 2007, page 228, from [Ms Boyton] which invited [Mr Cartwright] to the meeting on 9 August 2007 referred to the termination of the Rehabilitation Engineering Programme.
- We conclude that [King's] acted reasonably throughout the entire process. [Mr Cartwright] was aware as early as July 2007 that his job was at risk and the reasons for it. There were subsequent meetings with [King's] and [Mr Cartwright] accepted that the question of redundancy was raised at the meeting with Dr Kitchen and Mr Newton on 9 August 2007.'
- The tribunal also found that, following that, King's assisted Mr Cartwright in his search for alternative employment. It notified him of his right to appeal against his dismissal. It rejected his submission that he should have been included with two others in a pool for selection for redundancy. One suggested candidate for such inclusion had not featured in the evidence at all. The other, Dr Mayagoitia-Hill, carried out a role that was not interchangeable with Mr Cartwright's role. It held that King's had acted reasonably in deciding that it was Mr Cartwright's post that was at risk. It held that the reason for his dismissal was redundancy. It held that his dismissal was not unfair.
The decision of the appeal tribunal
- Ground 1 of Mr Cartwright's appeal to the appeal tribunal was that the employment tribunal misdirected itself in its application of section 98(4) of the 1996 Act. The complaint was that it had not directly focused on the fairness of the decision to dismiss, nor had it considered 'the size and administrative resources of [King's] undertaking'. The appeal tribunal recognised that the tribunal had neither set out the terms of section 98(4) nor referred expressly to the consideration reflected in the quoted words. But it said that the tribunal had anyway given itself a sufficient self-direction in paragraph 56 (quoted in  above) and that 'the statutory test of reasonableness is bred in the bone of every tribunal, and the mere fact that particular aspects are not specifically mentioned does not justify any inference that [it] has been overlooked.'
- As to whether the tribunal had sufficiently directed itself to the reasonableness of the decision to dismiss, that was also covered by Mr Cartwright's second ground, which asserted that the tribunal focused merely on the dismissal process without addressing itself at all to the fairness of the dismissal decision. The appeal tribunal recognised that the tribunal had focused primarily on the process leading up to the dismissal, including the consultation exercise and the attempts to find alternative employment and that it did not in terms address itself to the question of whether, alternative employment not having been found, it was reasonable to dismiss Mr Cartwright. Its response to that was:
'But that reflects the reality of the situation, both in the generality of redundancy cases and in this case in particular. If the work which the employee was being employed to do was no longer available, and if no other can be found, it is hard to conceive of circumstances in which it will be unreasonable to dismiss him: employers cannot be expected to keep on employees for whom there is no work.'
- Mr Cartwright's third ground of appeal focused more specifically on the fairness of the dismissal procedure. He asserted a failure by King's to consult in good time, but the appeal tribunal rejected that. Even if King's could be said to have been guilty of delay in not formally discussing with Mr Cartwright until 6 July 2007 the decision made two months earlier not to run the Diploma, there was no substance in the point: King's had discussed the matter with him informally in June 2007 and the process of consultation anyway continued for a further six months. Nor was there any substance in the point that it was not until 5 October 2007 that King's formally notified him of his intention to dismiss him on the grounds of redundancy: that was because the tribunal had found (paragraph 37) that it was clear to him from at least July 2007 that his job was 'at risk' and that 'dismissal from his post was a possibility.' The appeal tribunal also rejected the argument that Mr Cartwright had no sufficient opportunity to respond to a redundancy proposal. He had every opportunity to say anything he wanted to say after early July 2007 and, in any event, 'the essential area on which consultation was necessary was that of alternative employment, and ample consideration was given to that question both before and after 5 October.' The appeal tribunal then considered, and also rejected, Mr Cartwright's case that there was a failure properly to consider alternatives to redundancy.
- Mr Cartwright's ground 4 was that, contrary to provision (ii) of the terms of his employment that I set out in  above, he was not given the opportunity to present his case to the Principal or his or her authorised representative. That point also failed because, as Mr Cartwright accepted, it had not been taken before the employment tribunal, which could not therefore be charged with an error of law in failing to consider it. There was, therefore, no evidence relevant to the point although it was likely that Dr Kitchen and Mr Newton were in fact duly authorised representatives to whom Mr Cartwright had every opportunity to present his case.
- Ground 5 was that neither before the meeting of 6 July 2007 nor that of 9 August 2007 was Mr Cartwright given a Step 1 statement. The appeal tribunal was plainly more troubled by this point, saying this in paragraph 22:
'We agree that the way in which the Tribunal dealt with this point at para. 61 of the Reasons is unsatisfactory. It is not clear on what it bases its conclusion that [King's] complied with step 1. One possible reading is that it believed that it was enough that "[Mr Cartwright] … understood that his job was at risk": if this was the Tribunal's reasoning, it is clearly erroneous. The Tribunal also refers to the letter of 6 August … but [Mr Cartwright] says that the letter contains no statement that [King's] was contemplating dismissal.'
- The appeal tribunal referred to three authorities relating to Step 1 (Alexander v. Bridgen Enterprises Ltd  ICR 1277, Homeserve Emergency Services Ltd v. Dixon (UKEAT/0127/07) and Zimmer Ltd v. Brezan** (UKEAT/0294/08), to which I will come) and expressed as follows its reasons for also rejecting ground 5:
'24. We agree with the approach in both those judgments [Homeserve and Zimmer**]; and we would add that, in deciding whether a putative step 1 statement does in fact satisfy the statutory requirement it is right to read it in the context of the factual background known to the parties (although without going so far as to allow that background to supply a frank omission in the statement). The important letter in the present case seems to us to be not so much the letter of 6 August but the letter of 9 July …. That letter not only confirmed to [Mr Cartwright] that his existing role was disappearing but referred to "the option of redeployment" and the possibility of voluntary severance. Both of those are, of course, steps which fall for consideration as alternatives to dismissal for redundancy: since it could not be guaranteed that either would in fact be available in [Mr Cartwright's] case, it was indeed necessarily implicit that dismissal was contemplated, albeit only if those alternatives failed. That is in our view adequately clear from the letter itself, but it would be reinforced by the effect of the meeting which it was intended to confirm and as to which we have already set out the Tribunal's findings [a reference to paragraph 37 of the tribunal's reasons, which I referred to in  above and also quote in  below].
- We accordingly believe that the letter of 9 July satisfied the requirements of para. 1 of schedule 2. (We should note, though no point was taken on this, that the letter did not itself invite [Mr Cartwright] to a further meeting, but there is no requirement that that invitation be contained in the step 1 statement: the fact that such a meeting would take place was referred to and the actual invitation was sent out on 6 August.) There is therefore no difficulty about the meeting of 9 August constituting the meeting required by para. 2 of schedule 2. [Mr Cartwright] complains that the Tribunal does not explicitly identify the "step 2 meeting". We suspect that this was because [his] complaint was not about either meeting but about the absence of a prior step 1 statement. In any event, it does not matter whether the Tribunal identified the meeting provided that it in fact took place.'
The appeal tribunal's decision on Mr Cartwright's review application
- Mr Cartwright sought a review of the appeal tribunal's decision, which was refused for the following short reasons:
'The President has considered your application for a review of the Appeal Tribunal's order of 24th June 2009. The application is refused because he does not regard it as having any prospect of success. The basis of the application is the contention that the meeting of 9th August could not be the "step 2 meeting" because it was not the meeting contemplated in [King's] letter of 9th July that being the meeting of 20th July. That may well be the case, but it is not necessary for the purpose of the statutory procedure that there be any particular connection between the "step 1 statement", and the "step 2 meeting". All that is necessary is that there should be a written statement complying with para, 1 (which the Appeal Tribunal has held that there was, namely the letter of 9th July); that the employee should be invited to a meeting "to discuss the matter" (which he was); and that a meeting to discuss the matter should take place. As to that last element, the meeting of 9th August plainly did discuss the matter of [Mr Cartwright's] potential dismissal [for] redundancy: it focused, perfectly properly, on alternatives to dismissal but those were only necessary because he was redundant. That being so, it is immaterial that there had been another meeting, which may or may not have satisfied the criteria for step 2, on 20th July.'
The appeal to this court
A. Did King's comply with Step 1 of the statutory procedure?
- Mr Cartwright's fifth ground of appeal (which he argued, and I will take, first) was that King's failed to comply with the mandatory requirements of Step 1 of the 'Standard Procedure' prescribed by Schedule 2 to the Employment Act 2002. If he is right, that failure rendered his dismissal automatically unfair and he is entitled to compensation.
- Reducing paragraph 1 of the Step 1 requirements to relevant essentials, what King's had to do was to 'set out in writing the … circumstances, which lead [it] to contemplate dismissing … the employee' and 'send the statement or a copy of it to the employee….' It also had to 'invite the employee to attend a meeting to discuss the matter', although (as Underhill J pointed out) paragraph 1 does not require that invitation also to be included in the statement: it could be extended separately. Did King's ever send the requisite written statement to Mr Cartwright?
- There is in my view little doubt that King's made something of a hash of this. Compulsory redundancies were, I understand, very rare at King's. It was apparently also reluctant even to use the dreaded 'r………' word, which in this case it did not articulate in print until Ms Boyton's email of 5 October 2007. I infer that, even assuming that its Human Resources department was familiar with the requirements of Step 1, it overlooked them when dealing with Mr Cartwright. If King's can identify a statement satisfying the Step 1 requirements, it is only by sheer luck. It appears improbable that anyone at King's ever focused his mind on drafting a statement that satisfied them.
- Mr Cartwright was, however, well on to the point, at any rate by the time his tribunal proceedings were under way (from a starting point of admitted relative ignorance about employment law, he has since obtained an impressive grasp of it). On 24 June 2008, some six weeks before the tribunal hearing, he wrote to King's solicitors asking (inter alia) for a copy of the Step 1 statement or confirmation that none had been provided, to which the response on 27 June 2008 was that this was a request for early disclosure, which would be given on 10 July 2008 in accordance with the tribunal's earlier direction. Of course such disclosure did not, when given, identify which document was said to constitute the statement and King's case on this only emerged with Mr Coghlin's closing written submissions. He there submitted that King's complied with Step 1 by one or more the following documents: (1) an email of 27 June 2007; (2) the agenda sent to Mr Cartwright on 3 July 2007; (3) the letter of 6 August 2007; and (4) the email of 5 October 2007.
- Item (1) fell wide of the target. It was an email from Dr Kitchen proposing a meeting with Mr Cartwright 'to discuss the issues round your return to full time employment'. It said nothing to the effect that there were circumstances leading King's to contemplate his dismissal on redundancy grounds, let alone that it was contemplating any such dismissal. It was obviously not a Step 1 statement, nor did Mr Coghlin suggest otherwise to us. I quoted item (2) in  above. That too said nothing to the effect that there were any such circumstances as aforesaid and it was also not a Step 1 statement. Mr Coghlin did not submit to us that that document was a valid Step 1 statement either.
- I quoted item (3) in  above, which Mr Coghlin did submit amounted to a valid Step 1 statement, although the employment tribunal appears to have made no finding to that effect (paragraph 61 of its reasons was the only one touching on this issue but, remarkably, it did not identify any document as satisfying the Step 1 requirements: it merely made an unreasoned finding that King's had satisfied them); and the appeal tribunal appears to have rejected that letter as being a valid Step 1 statement. I quoted item (4) in  above. I consider that this email could be interpreted as a Step 1 statement, but the difficulty with that conclusion is that I am unaware of any evidence that Mr Cartwright was ever invited to any subsequent meeting to discuss the possibility of his dismissal on redundancy grounds. He had at least one subsequent meeting with Dr Kitchen, and also one with Ms Boyton, but neither appears to have been devoted to such a discussion. That was no doubt because that discussion had already taken place at the meeting on 9 August 2007. By October 2007 events had moved on. I need not, however, dwell further on this document, because Mr Coghlin did not submit to us that it amounted to a Step 1 statement.
- The appeal tribunal's answer to the Step 1 question was to unearth a fifth document as fitting the bill: the letter of 9 July 2007. That suggestion had not formed part of King's case before the employment tribunal, nor was it advanced in Mr Coghlin's written submissions to the appeal tribunal. Mr Cartwright not only submitted to us that the appeal tribunal was wrong in favouring the 9 July letter, he complained that its procedure in doing so was unfair. That was because, he said, he was given no forewarning at the preliminary hearing that the appeal tribunal regarded it as a Step 1 candidate and so he was given no opportunity to submit to the appeal tribunal why it was not: the first indication that he was given of the appeal tribunal's opinion on this point was in its reserved judgment. Mr Cartwright's complaint in that respect appears to be supported by the terms of his application for a review of the appeal tribunal's decision.
- In the absence of a transcript of what was said at the preliminary hearing about this aspect of the case, I would regard it as unfair for this court to make any decision as to the fairness or otherwise of the appeal tribunal's procedure in relation to its adoption of the letter of 9 July 2007 as a Step 1 statement. Nor, in my view, is it necessary to do so. I recognise, as Mr Cartwright pointed out, that the fact-finding tribunal was the employment tribunal and that in making its finding as to the letter of 9 July 2007 the appeal tribunal was making an additional finding of fact of its own in support of the employment tribunal's decision. But whether or not a particular document constituted a Step 1 statement was one turning on its interpretation, which is strictly a question of law. If this court is satisfied that the appeal tribunal was apparently correct to regard the letter of 9 July 2007 as the crucial one, then unless it might be said that before such view could be finally endorsed it would be necessary first to explore surrounding facts that had not been explored by the employment tribunal, I can see no reason why this court should not uphold the appeal tribunal's decision to uphold the employment tribunal's decision as regards the satisfaction of the Step 1 requirements. The employment tribunal may have made an error of law in failing to identify any document as being a valid Step 1 statement but in nevertheless finding that Step 1 was satisfied; but if the letter of 9 July 2007 was indisputably such a statement, it would seem to me to be procedurally absurd if all that this court could do would be to remit the case to the employment tribunal for it formally to make the requisite finding in relation to that letter. Mr Cartwright did not impress me that any further fact-finding inquiry would be necessary before arriving at the conclusion that the letter of 9 July 2007 was a valid Step 1 statement. The only question, therefore, in my view is whether or not it was such a statement; and before us Mr Cartwright had the fullest opportunity to argue that it was not.
- I refer first to the authorities. Alexander and another v. Bridgen Enterprises Ltd  IRLR 422 is a decision of the Employment Appeal Tribunal (Elias J, the President, as he then was, presiding). In his judgment, Elias J described as follows the minimum requirements that had to be satisfied for a Stage 1 statement:
'38 … At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting. At that stage, in our view, the statement need do no more than state the issue in broad terms. We agree with Mr Barnett [counsel for the employers] that at step one the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case this will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty. In other cases it may require no more than specifying, for example, that it is lack of capability or redundancy.
- It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement. This information need not be reduced into writing, it can be given orally. The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds….' (Emphasis supplied)
- The next authority, another decision of the Employment Appeal Tribunal (His Honour Judge Peter Clark presiding) is Homeserve Emergency Services Limited v. Dixon UKEAT/0127/07/CEA, 27 June 2007, unreported. In that case the Step 1 statement, headed 'Re Suspension/Disciplinary Hearing', confirmed to the employee that he was suspended on full pay and invited him to a disciplinary meeting, of which details were given, including that it would be concerned with a charge of breach of contractual obligations. The statement did not, however, say expressly that dismissal was a possible outcome of the meeting. The employment tribunal held that, in consequence, it did not satisfy the requirements of a Step 1 statement. The appeal tribunal disagreed. It adopted paragraph 38 of Elias J's judgment in Alexander but held that it was implicit in the statement in issue that the employer was contemplating dismissal or other disciplinary action.
- Zimmer Limited v. Brezan UKEAT/0294/08/ZT, 25 October 2008, unreported, is another decision of the Employment Appeal Tribunal, His Honour Judge Burke QC presiding. What was said to be the Step 1 statement followed an inquiry into the mileage and expenses claims made by the employee, who was eventually dismissed for misconduct. The statement merely referred to a meeting with him earlier that day and confirmed that a disciplinary meeting had been arranged for a given time in order to discuss his claims. It enclosed a copy of the employer's disciplinary policy and informed the employee that he could be accompanied at the meeting. The employment tribunal held the statement to be an insufficient compliance with the Step 1 requirements, one reason for which being that it did not identify that there was a potential case of gross misconduct or that dismissal was 'a risk of the meeting.'
- The employer's argument on its appeal was that the statutory requirements for a valid Step 1 statement did not require the employer to do more than set out the 'conduct or characteristics, or other circumstances' that had led him to contemplate dismissal: he did not also have to say that he was contemplating dismissal. Insofar as the appeal tribunal had said otherwise in Alexander and Homeserve, it was said that its utterances were obiter, wrong and anyway non-binding. The appeal tribunal in Zimmer said that, if satisfied that the primary submission was correct, it would not have regarded itself as bound by either of the preceding authorities to reject it. But it was not. Judge Burke said:
'23. However, we are not persuaded that the EAT overstated the requirements of a step 1 letter in either decision. We accept that paragraph 1(1) of the statutory procedure could be construed as requiring only the limited obligation on which Mr Oudkerk [counsel for the employer] relies, but in our judgment the relevant words can and should be construed consistently with the views taken by the EAT in Alexander and Homeserve, to which we have referred, namely, that the words which appear after the comma, despite the comma, are descriptive of the obligation contained in within the procedure and not merely descriptive of the words which precede the comma. That, in our judgment, is consistent (and the alternative is not consistent) with the aims and purposes of the statutory provisions as described by the EAT in paragraph 34 of Alexander, in our view correctly. Unless the employee is enabled to understand from the step 1 letter that he is at risk of dismissal, in our judgment the purpose of the Step 1 letter in a dismissal case cannot be properly achieved. The employee is plainly entitled to have some idea what type of sanction is in the mind of the employer or, at least, in a dismissal case, that dismissal is in the mind of the employer, so that he knows the potential extent of what it is that he may be facing when, armed with the information given to him by the Step 1 letter, he goes to the Step 2 meeting.'
The appeal tribunal continued, as follows, in a passage including the citation made by Underhill J in the appeal tribunal:
'25. … We accept that on the facts of a particular case it is open to a tribunal to consider that the Step 1 letter, and information provided with it, can be regarded, in the individual circumstances of the case before them, as sufficient to communicate the risk to the employee of dismissal, albeit the letter does not expressly say that. Homeserve is a clear example of that type of case. Here Mr Oudkerk submits that sending the disciplinary procedure with the email, which process bore within it the contents which we have described, could have only have [sic] meant to Mr Brezan that he was at risk of dismissal and that that was borne out at the following disciplinary meeting when Mr Brezan said that he understood very clearly why he was at that meeting ….
- We do not accept that submission, attractively as it was put. The email said only that the meeting was to discuss Mr Brezan's mileage and expenses claims which had been discussed earlier that day. It made no reference to misconduct, still less gross misconduct. As we have already said, it did not direct Mr Brezan's attention to any specific part of the length disciplinary document. It was possible from the letter for anyone to think that the employers were thinking, or might be thinking, not in terms of dismissal at all but in terms of relying on unprofessional conduct or failing to record matters which should be recorded or on other matters falling within the definition of "misconduct" as opposed to "gross misconduct"; the whole series of meetings (according to the Tribunal's findings) took place within the context of what appeared to the Tribunal to be an ongoing discussion about the mileage claims.'
- It was not suggested to us that the approach of the appeal tribunal in the three cases of Alexander, Homeserve and Zimmer was erroneous. I would respectfully endorse its approach to the requirements of a Step 1 statement, which I regard as reflecting a sensible and practical interpretation of Schedule 2. Applying that approach to this case, did the letter of 9 July 2007 inform Mr Cartwright that he was at risk of dismissal on redundancy grounds (paragraph 38 of Alexander**)?
- The letter was expressed to be written 'following our meeting held on Friday 6 July 2007 ….' It purported to summarise the meeting. It recorded that Mr Cartwright's contractual arrangements were reviewed. It confirmed that the King's Certificate course would not survive the current cohort of students. The discussed result was that there were 'not sufficient additional functions [within the Physiotherapy Department] to make your role up to a full-time position.' Therefore Mr Cartwright's contract was to remain '0.4 FTE until further notice'. It was 'further agreed that I [Ms Boyton] would meet with you after 16 July 2007 to discuss the option of redeployment and that by the end of July 2007 I would investigate whether voluntary severance was an option available to you.' The letter said that the notes of the meeting of 6 July would be forwarded to Mr Cartwright.
- Did the letter inform Mr Cartwright that he was at risk of dismissal on redundancy grounds? That was the minimum, headline information that, as explained in paragraph 38 of Alexander, had to be included in the Step 1 statement. Mr Cartwright submitted that it did not so inform him, and Mr Coghlin submitted the reverse, adopting the reasoning of the appeal tribunal.
- I cannot see that the letter of 9 July did so inform Mr Cartwright. So far as material, it told him that the downturn of work in the Physiotherapy Department was such that his contract would remain at 40% of hours 'until further notice'; it confirmed the arrangement of a meeting to discuss 'the option of redeployment' (i.e. within King's); and it confirmed that Ms Boyton would consider by the end of July 2007 'whether voluntary severance was an option available to you'. What it did not say, at any rate expressly, was that, if neither redeployment nor voluntary severance was available or could be agreed, dismissal for redundancy would or might follow.
- I accept that if, upon its true interpretation, it was implicit in the letter that, in those circumstances, dismissal for redundancy would or might follow, the Step 1 requirements would be met. Underhill J's view (paragraph 24 of his judgment) was that redundancy was indicated as an implicit alternative outcome: 'since it could not be guaranteed that either [redeployment or voluntary severance] would in fact be available …, it was indeed necessarily implicit that dismissal was contemplated, albeit only if those alternatives failed.' In his view that implication was adequately clear from the letter itself; but it was also reinforced by the effect of the meeting which it was intended to confirm and the employment tribunal's findings as to that meeting. Those findings were (in paragraph 37) that, as Mr Cartwright had accepted:
'… the issue of redundancy had been raised at the meeting on 6 July 2007 and we find that before that meeting [Mr Cartwright] was fully aware that his job was at risk as reflected in an email to Dr Kitchen from [him] dated 2 July 2007 in which he stated "I have effectively been told my job is at risk?!"'
- Was Underhill J right in his view? As regards Mr Cartwright's email of 2 July 2007, I do not interpret it as purporting to record anything that King's had previously conveyed to him in writing as opposed to orally. As regards the meeting of 6 July 2007, the employment tribunal's findings about what was said at it are imprecise (the tribunal made no finding as to what was actually said about redundancy), but I shall assume that it was implicitly finding that Mr Cartwright had been told at the meeting that because of the running down of the Certificate and the abandonment of the Diploma, there was a possibility that King's might dismiss him on redundancy grounds. (I should perhaps record that his own position to us is that whilst before this meeting he had feared he might be so dismissed, the meeting raised for the first time the possibility of his re-deployment within King's and so removed that anxiety: but the tribunal made no finding to that effect).
- Do the interpretation and/or assumption that I have made in the preceding paragraph enable the letter of 9 July to be read as impliedly conveying that, because of the changed circumstances relating to the Certificate and Diploma, King's was contemplating making Mr Cartwright redundant? I accept that it is a possible inference from that letter that King's was contemplating a redundancy dismissal if neither redeployment nor voluntary severance proved to be available. But I do not regard it as the only inference, since another possible inference from its language is that King's had not yet formed any view as to what it might do in such circumstances: its attitude could have been a 'wait and see' one. It is, in effect, said in answer to this that the tribunal had found that the possibility of redundancy had been orally discussed on 6 July (referring also to Mr Cartwright's email of 2 July), which necessarily supports the former inference. But that argument is founded on a fallacy. The need to have such recourse to the oral exchange and prior email is precisely because of a material gap in what King's wrote on 9 July – namely, any reference to a contemplation that it might dismiss Mr Cartwright on redundancy grounds. But a prior oral exchange cannot fill such a gap, since what Schedule 2 mandatorily requires is a statement of the minimum information in writing. If the argument were right, it would mean that an employer could send his employee a statement saying no more than 'Re our discussion yesterday, please come to a meeting tomorrow to discuss it further' and then proffer it as a sufficient Step 1 statement on proof that the discussion had covered the headline information required to be included in such a statement. So to interpret the requirement of writing in paragraph 1(1) of Schedule 2 would be to emasculate it. The invocation of the discussion at the prior meeting as a basis for implying a term into the letter of 9 July simply does not work: it is being invoked merely for the purpose of adding to the letter a meaning that it does not itself convey.
- Nor, for like reasons, does it help King's to point to Mr Cartwright's email of 2 July. At best that also only recorded something that King's had told him. But such a recording similarly cannot be invoked as satisfying the Step 1 requirements. It would enable an employer to plead their satisfaction by relying on the employee's written recording of an oral communication of the minimum headline requirements: but that too would be to emasculate paragraph 1(1). Whilst it may seem to be somewhat technical for a putative Step 1 statement to fail the test because it did not tell the employee something he already knew, that is nothing to the point. The statute requires the relevant information to be given by the employer in writing and nothing less than that will do. In my judgment, the letter of 9 July 2007 was not a valid Step 1 statement and I respectfully disagree with the different view expressed by the appeal tribunal.
- Mr Coghlin devoted most of his oral submissions to the proposition that it was the letter of 6 August 2007 that constituted the requisite Step 1 letter (a finding made by neither tribunal below). I do not understand how that letter can be said to have conveyed, either expressly or impliedly, that King's was contemplating dismissing Mr Cartwright on redundancy grounds. On its face, it said nothing of the sort. Mr Coghlin, however, sought to put the necessary flesh on its bones by (a) referring to those passages in Mr Cartwright's email of 19 July 2007 that I quoted in  above, and (b) relying on the finding by the employment tribunal in paragraph 37 of its reasons that Mr Cartwright knew by the meeting on 6 July 2007 of the possibility that he might be dismissed for redundancy. I have nothing to add as to why I do not regard the latter as providing any help to the argument; nor do I see what help King's can derive from the email of 19 July. The part relied upon by Mr Coghlin reflects no more than that Mr Cartwright was aware that his job in the Physiotherapy Department was at risk, who went on to say that:
' …we are agreed that suitable options for consideration in these circumstances are redeployment and voluntary severance. You have kindly agreed to meet with me to discuss the option of redeployment. You have also agreed to investigate the voluntary severance option.'
Again, the email included no writing from King's that might be regarded as filling the void in the letter of 6 August 2007 so as to constitute the latter a valid Step 1 statement.
- No other document was relied upon as constituting such a statement. It follows that I consider that King's failed to comply with the Schedule 2 requirements prior to its dismissal of Mr Cartwright. I reach this conclusion with no regret. The writing and sending of a valid Step 1 statement was an elementary exercise requiring minimal skill. Any employer familiar with its requirements had only himself to blame if he was unable to create and send the necessary statement.
- I conclude, therefore, that the employment tribunal was wrong to dismiss his unfair dismissal claim and the appeal tribunal was wrong to uphold such dismissal. I would set aside the decisions of the tribunals below, substitute a decision that Mr Cartwright was unfairly dismissed and remit his claim to the employment tribunal for a remedy hearing.
- In these circumstances it may not strictly be necessary also to consider Mr Cartwright's remaining grounds of appeal, but as they were fully argued I will express my views on them.
B. Was Mr Cartwright dismissed by reason of redundancy?
- Mr Cartwright's first ground of appeal (which he argued second) was that the employment tribunal was wrong to find that he was redundant without first considering what he had been employed to do under his contract and without referring to the availability of other work that he might be entitled to perform under that contract. He emphasised that an employer seeking to establish redundancy as a potentially fair ground for dismissal must be able to show that 'the employee was redundant' (section 98(2)(c)). Mr Cartwright was employed by King's under a contract that engaged him as a 'Non-Clinical Teaching Fellow' from 1 September 2005 until his retirement. Thus, said Mr Cartwright, even if it turned out that there was no continued need for his services for the particular function he had been performing in the Physiotherapy Department in the School of Biomedical and Health Sciences, it did not follow that his job as a Non-Clinical Fellow employed by King's was redundant. His point was that the reference in section 98(2)(c) to the employee 'being redundant' was a reference not to whether the particular function performed by the employee had become redundant but whether the general duties under the contract under which he was engaged had. If King's could have deployed him as a Non-Clinical Teaching Fellow in other fields, there was no question of his being redundant; and he said that King's could have done that.
- The submission was not a novel one and Mr Cartwright was able to find arguable support for it in some of the authorities (including in the judgments of this court in Nelson v. British Broadcasting Corporation  ICR 649 and Nelson v. British Broadcasting Corporation (No 2)  ICR 110). But his difficulty is that such historical support for his argument as he can so derive has now been demolished by the decision of the House of Lords in Murray and Another v. Foyle Meats Ltd  1 AC 51, which swept away the so-called 'contract test' for which the Nelson cases were said to provide support and which was at the heart of Mr Cartwright's submission.
- The appeal in Murray was from the Court of Appeal in Northern Ireland and turned on a consideration of the Industrial Relations (Northern Ireland) Order 1976 (SI 1976 No 1043 (NI 16)), whose relevant provisions were essentially identical to those of sections 98 and 139 of the Employment Rights Act 1996. Lord Irvine of Lairg LC delivered the leading speech. Its clarity was matched by its succinctness and it shows that the question whether an employee was dismissed on the ground that he 'was redundant' (section 98(2)(c)) turns on whether his dismissal was wholly or mainly attributable to circumstances falling within either of subparagraphs (a) and (b) of section 139(1). In Murray**, as in the present case, the employers relied on section 139(1)(b). Lord Irvine said, at  1 AC 51, 56E to G:
'My Lords, the language of paragraph (b) is in my view simplicity itself. It asks two questions of fact. The first is whether one or other of various states of economic affairs exists. In this case, the relevant one is whether the requirements of the business for employees to carry out work of a particular kind have diminished. The second question is whether the dismissal is attributable, wholly or mainly, to that state of affairs. This is a question of causation. In the present case, the tribunal found as a fact that the requirements of the business for employees to work in the slaughter hall had diminished. Secondly, they found that that state of affairs had led to the applicants being dismissed. That, in my opinion, is the end of the matter.
This conclusion is in accordance with the analysis of the statutory provisions by Judge Peter Clark in Safeway Stores Plc. V. Burrell  ICR 523 and I need to say no more than that I entirely agree with his admirably clear reasoning and conclusions. But I should out of respect for the submissions of Mr Morgan for the applicants, say something about the earlier cases which may have encouraged a belief that the statute had a different meaning.'
- Lord Irvine went on to disapprove the earlier cases (in particular the Nelson cases) that had provided support for the 'contract test' that Mr Cartwright urged upon us. After referring to Pink v. White and White & Co (Earls Barton) Ltd**  IRLR 489, Lord Irvine said, at  1 AC 51, 58A to B:
'I have no doubt that on its facts the case was rightly decided, but both the contract test and the function test miss the point. The key word in the statute is "attributable" and there is no reason in law why the dismissal of an employee should not be attributable to a diminution in the employer's need for employees irrespective of the terms of his contract or the function which he performed. Of course the dismissal of an employee who could perfectly well have been redeployed or who was doing work unaffected by the fall in demand may require some explanation to establish the necessary causal connection. But this is a question of fact, not law.'
- Lord Clyde delivered a concurring speech. Lord Jauncey of Tullichettle and Lord Hoffmann agreed with both speeches. Lord Slynn of Hadley agreed with Lord Irvine's speech.
- In my judgment, that decision provides an insurmountable hurdle in the way of Mr Cartwright's submission. He did not accept that, asserting that the House of Lords in Murray **did no more than reject the 'contract test' in the context of a consideration of section 139 whilst leaving it intact for the purposes of section 98(2)(c). I respectfully disagree. First, section 235(3) provides that:
'References in this Act to redundancy, dismissal by reason of redundancy and similar expressions shall be construed in accordance with section 139.'
Section 139(1) itself opens with the words 'For the purposes of this Act …,' and section 98(2)(c) is part of the Act. Second, Murray **was itself an unfair dismissal case, and the basis of the decision was plainly that if the employee's dismissal was 'by reason of redundancy' within the meaning of section 139(1), it will follow that 'the employee was redundant' for the purposes of section 98(2)(c). It is apparent that, in the present case, the employment tribunal found on the facts, as it was entitled to do, that King's need for its employees to carry out work of the kind upon which Mr Cartwright was engaged had ceased and that his dismissal was attributable to such cessation. That was a finding that he was dismissed by reason of redundancy, a potentially fair reason for dismissal, and in my judgment it is unimpeachable. I would reject this ground of appeal.
C. Was King's decision to dismiss Mr Cartwright fair?
- Mr Cartwright's second ground of appeal (which he argued third) was that the employment tribunal focused only on the process of his dismissal: it did not, as it should have done, also consider the fairness of the dismissal decision itself and so it failed properly to give due consideration to the factors referred to in section 98(4) of the Employment Rights Act 1996.
- Mr Cartwright pointed out that on 24 June 2008, some six weeks before the tribunal hearing, he asked King's solicitors to provide 'the name/s and position of the person/s in the respondent's organisation who took the decision to dismiss [him]', only to be met by an unfulfilled assurance that the King's witness statements would deal with this. In the event, there was, he said, no sufficient evidence as to (i) who took the decision to dismiss him, (ii) when that decision was made, or (iii) on what basis it was made. He said that his questions on this topic to Dr Kitchen and Carol Ford in cross-examination produced ambiguous answers upon which the tribunal made no finding.
- Nor, he said, did King's produce any minutes of any meeting at which the decision was made. There was, in particular, no evidence that the decision-maker or makers had any regard to King's size and administrative resources in making the dismissal decision (see section 98(4)(a)), considerations said to be particularly relevant in the case of a proposed dismissal for redundancy by a University college which had historically displayed a benign attitude towards dismissals on redundancy grounds. Related to this was the need to consider the type of work that Mr Cartwright was contracted by King's to do and the availability of such work, to which the employment tribunal did not refer. Nor did the tribunal give any apparent thought to whether allowing Mr Cartwright a career break would have been a fair alternative to dismissal for King's consider.
- After referring to Iceland Frozen Foods Limited v. Jones  ICR 17, at 24G to 25B (per Browne-Wilkinson J, giving the judgment of the Employment Appeal Tribunal), Mr Cartwright pointed out that the tribunal's starting point should have been the words of section 98(4) themselves; and he said that, in the case of a University such as that of which King's forms part, the band of reasonable responses upon which the tribunal should have been focusing is likely to be narrower than it might be in the case of, say, a small commercial business. In short, his submission was that there was a lack of evidence relating to the making of the decision to dismiss and the reasons for it; and, therefore, no evidence on the basis of which the employment tribunal could decide whether or not the decision was fair.
- Mr Coghlin's response was that there was no substance in these points. The tribunal found (paragraph 60) that there was insufficient work for Mr Cartwright to undertake following the termination of the Certificate. In circumstances in which the work the employee was employed to do is no longer available and no other can be found, it will, as the appeal tribunal pointed out, be hard to conceive of circumstances in which it will have been unreasonable to dismiss the employee. The task of the tribunal, under section 98(4)(a), was to consider whether King's acted reasonably or unreasonably in treating redundancy as a sufficient reason for dismissing Mr Cartwright. In the particular circumstances of the case, it was sufficient for the tribunal to find expressly, as it did in paragraph 62, that King's had acted reasonably throughout the process: in a redundancy case, the focus is inevitably on the procedural steps taken by the employer before reaching a decision to dismiss. There was no need for it to set out expressly the terms of section 98 of the Employment Rights Act 1996, the statutory test of reasonableness being, as the appeal tribunal had said, 'bred in the bone of every tribunal.' Contrary to Mr Cartwright's submission, the unchallenged evidence was, said Mr Coghlin, that the dismissal decision was made by Dr Kitchen in consultation with the Head of School, Roger Morris (a submission supported by an exchange of emails between King's solicitors and Mr Cartwright on 8 March and 6 May 2010). The nature of King's as an establishment was fully understood by the tribunal. There was nothing unreasonable in not considering a career break as an alternative to dismissal: Mr Cartwright's request for one had been rejected in April 2007 and he did not resurrect it as an alternative to redundancy. In any event, a career break would at most have postponed the problem.
- I have some sympathy for Mr Cartwright's complaints about the extent of the employment tribunal's reasons, which were, if I may say so, expressed with an economy (a mere 10 paragraphs) which was perhaps likely to provoke concern on part of a claimant such as Mr Cartwright that his case had not been sufficiently considered. Unfair dismissal claims are no doubt the daily fare of employment tribunals, but they will in most cases be a unique experience for the dismissed claimant; and probably, also in most cases, also for the employer. My own view is that it is important that the tribunal's reasons should be as full as is reasonable, so that the losing party can see from them that his case has been properly considered.
- Having said this, it is well known that an employment tribunal's decision is not required or expected to be:
'… an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost.' (Meek v. City of Birmingham District Council  IRLR 250, paragraph 8, per Bingham LJ; and see also UCATT v. Brain  IRLR 225, per Donaldson LJ).
In the present case, whilst I consider that the tribunal's reasons could usefully have been fuller, I agree with the appeal tribunal that there is here no basis for a criticism of the employment tribunal that it did not properly assess the fairness or otherwise of the dismissal decision.
- There was, first of all, no need for the tribunal to set out the terms of section 98, or section 98(4) in particular. There are probably few, if any, provisions of employment legislation with which employment tribunals will be more familiar. As Underhill J rightly said, 'the statutory test of unreasonableness is bred in the bone of every tribunal,' and I consider that there is no basis for a conclusion that this tribunal did not have it well in mind. In particular, in paragraph 56 the tribunal gave itself a correct direction as to the reasonableness issue with which it was faced. It is correct, as Underhill J also pointed out, that it did not there in terms direct itself to the duty to have regard to the size and administrative resources of King's, and perhaps ideally it should have done. But there cannot be any doubt that over the four days of the hearing the tribunal would have fully understood the general nature of King's as an employer and it would appear to me to be close to inconceivable that this would not have been factored into its overall conclusion that, on the facts of the case, the dismissal of Mr Cartwright was within the band of reasonable responses open to a reasonable employer. Whilst Mr Cartwright made much of the lack of evidence as to who made the dismissal decision and why, the email exchanges to which I have referred support Mr Coghlin's contrary submission. The tribunal's reasons show that it came to a clear conclusion as to why he was being dismissed, namely redundancy, and it is also clear that, in the circumstances of the case, it concluded that such decision was within the band of reasonable responses. There was no error on its part in not referring to the possibility that Mr Cartwright might have been engaged in some alternative capacity by King's: the whole point of the redeployment consideration in which he and King's engaged during the consultation period was to identify the possibility of alternative employment for him, but it led to nought. There was also no error on its part in not referring to that which Mr Cartwright had not even himself suggested to King's, namely the offer of a career break in place of dismissal, an option which would anyway merely have postponed the problem. I would dismiss this ground of appeal.
D. Did King's follow a reasonable process in making the decision to dismiss?
- Mr Cartwright's third ground of appeal (which he argued fourth) was that, once King's had formed a proposal to dismiss him on grounds of redundancy, it had a duty to consult with him about the proposal. He asserted that down to the email of 5 October 2007, when (he says) the proposal to dismiss him for redundancy was first articulated, King's had done no more than to tell him that it was considering his redeployment. That redeployment proposal did not trigger any consultation obligation. Although the October email did trigger such an obligation, King's thereafter engaged in no consultation with him prior to dismissing him on 19 December 2007. Mr Cartwright said that the employment tribunal gave no consideration to any of this. It did not refer to the requirements of consultation. It did not make any finding as to when dismissal for redundancy was first proposed. It did not make any finding as to when the dismissal decision was actually taken.
- Mr Coghlin's response to this submission was to adopt the appeal tribunal's reasons for rejecting it. I also respectfully agree with those reasons. I have earlier held that King's sent no valid Step 1 statement to Mr Cartwright explaining that dismissal for redundancy was on the cards. That was a conclusion to the effect that King's had failed to comply with a formal procedural step requiring the giving of a written notice of a certain kind, of which the consequence was that the subsequent dismissal was automatically unfair. But this ground of appeal turns centrally on when King's first evinced (even if only orally) to Mr Cartwright its intention to dismiss him on grounds of redundancy and whether there then followed sufficient consultation with him about such proposal. The appeal tribunal pointed out that the employment tribunal had found as a fact (in paragraph 37) that it was clear to Mr Cartwright by July 2007 that dismissal on redundancy grounds was a possibility. That finding cannot be re-opened before us. Thereafter he had every opportunity to respond to the redundancy proposal, and King's also engaged with him in a full consultation (including in particular at the meeting on 9 August 2007) about alternatives that might avoid the need to dismiss him on redundancy grounds. During the consultation process, Mr Cartwright did not suggest to King's that the giving to him of a career break was a reasonable alternative to dismissal. Nor did he suggest that the tasks for which he was engaged between October 2007 and January 2008 could have been expanded to a basis for permanent employment. Nor was there any basis for criticising King's for not selecting him for the post for which he applied in October 2007. There is, in my view, nothing in Mr Cartwright's point that Ms Boyton's letters to him of 31 October and 19 December 2007 informed him that there was no more funding for his role as a Non-Clinical Teaching Fellow, since he made no suggestion that he believed that at the time and the employment tribunal found that the suggested lack of funding had been referred to in error. Insofar as he complained that the letter of 19 December (the dismissal letter) only gave him six days in which to appeal whereas, as an 'academic-related' staff member, he was entitled to 14 days, he was not disadvantaged: King's extended his time for appealing such that (ignoring postage time) he was given some 29 days in which to appeal, yet still he did not do so.
- I consider that there is nothing in this further ground of appeal either, and I would dismiss it.
E. Did King's correctly follow its own internal dismissal procedure?
- This was Mr Cartwright's fourth ground of appeal, which he argued last. He recognised that it involved the raising of a new point that he did not take before the employment tribunal but said that the justice of the case was such as to merit his being allowed to do so. The point arises in the circumstance that Mr Cartwright's case at the employment tribunal hearing was that he was a member of the King's 'academic' staff and that he was entitled to benefit from the dismissal procedures relating to such staff. The tribunal found that he was not a member of the academic staff and that he was therefore not so entitled. Mr Cartwright does not challenge that conclusion, but wants now to say that which he did not say before the tribunal, namely that he should instead have been entitled to the benefit of the dismissal procedure applying to 'academic related' staff, of which he was found to be a member. That provided that his appointment could only be terminated 'by the Principal or his or her authorised representative', it gave him a right to a prior 'adequate opportunity to present his or her case to the Principal or his or her authorised representative' and it gave him a right of appeal within 14 days (as opposed to the six days that he was given) to an Appeals Committee appointed by the Council or by its Chairman acting on its behalf. He says that none of these benefits was afforded to him and that his dismissal was therefore procedurally unfair. Whilst he recognises that he argued none of this before the tribunal (and he only argued the 'adequate opportunity' point before the appeal tribunal), he says that King's was at fault in not disclosing to him in good time the dismissal procedure relating to 'academic related' staff. He said that this court is in as good a position as would have been the employment tribunal to decide this point in his favour and conclude that King's dismissal procedure applied to him was unfair.
- As the appeal tribunal pointed out, the omission to take this point before the employment tribunal precluded any argument that that tribunal was in legal error in not considering it. The appeal tribunal refused to allow the point to be argued on its merits on a substantive hearing; and Mr Coghlin submitted that this was a decision properly within its discretion and that there was no justification for this court to re-open it.
- Mr Cartwright accused King's of 'deceit by omission' in relation to this matter, on the basis that it did not explain to him that his terms and conditions of employment changed when he became a teaching fellow, although I regard as misconceived the suggestion that any such omission amounted to 'deceit' on King's part. Moreover, Mr Cartwright anyway appears to accept that he could have argued this case before the employment tribunal by way of an alternative argument, but says that, as a litigant in person, it was unreasonable to expect him to argue not only the case he believed in (that based on the assertion that he was a member of the 'academic' staff), but also to argue in the alternative a case he did not believe in (that based on the assertion that he was a member of the 'academic related' staff). Having now considered the availability to him of the alternative case, he wants to be given the opportunity to argue it.
- I have come to the conclusion that there is no substance in this ground of appeal either. I am not impressed by Mr Cartwright's point that as a litigant in person he should be excused his omission to perceive that he could - and, if so minded, should - have argued this case in the alternative before the tribunal. The basic rule in the conduct of all proceedings before courts and tribunals is that the participants are expected to put their whole case before the court or tribunal. They ordinarily have no entitlement to a subsequent second bite at the cherry when they fail to take that bite at the original hearing; and there is in that respect no special rule for those who, by choice or necessity, conduct their cases in person. Moreover, despite Mr Cartwright's submission otherwise, the determination of the points he wants to raise under this ground could not be made by this court, since it would require the investigation of factual issues that have not yet been investigated. They would include, inter alia, an inquiry as to whether Dr Kitchen and/or Mr Newton were 'authorised representatives of the Principal'; and an inquiry as to whether, even if there was a failure to apply a particular internal procedure, this would render the dismissal unfair if the same result would have been likely had a different procedure been followed (see section 98A(2)). These matters could only be investigated on a remission of the claim to the employment tribunal for a partial re-hearing.
- In my judgment, there is no justification for any such remission. It is only very exceptionally that the appeal tribunal will allow the taking of a new point on appeal that will, when taken, require the remission of the claim to the employment tribunal for a further factual inquiry. I am not satisfied that the present case comes even close to the edge of being such a case. I would dismiss this ground of appeal too.
- I would dismiss all grounds of appeal save that relating to the claimed non-compliance with the Step 1 requirements under Schedule 2 to the Employment Act 2002. I would allow the appeal on that ground and would in consequence set aside both decisions of the tribunals below and remit Mr Cartwright's claim to the employment tribunal for a determination of the remedy to which he is entitled for what I would hold to have been his unfair dismissal.
Lord Justice Patten :
- I agree.
Lord Justice Sedley :
- I agree both with the reasoning and with the conclusions of Lord Justice Rimer on this case. But I wish to add a note of caution on two matters which are likely to arise in other cases and on which this case should not, in my judgment, be regarded as the last word.
- In §62 Lord Justice Rimer refers to the decision of the EAT in Homeserve Emergency Services Ltd v Dixon, an unreported decision in which the respondent employee appeared in person. At §13-14 Judge Peter Clark accepted that, although not stated, it was implicit in the letter inviting the employee to a formal disciplinary meeting that dismissal was on the cards. Correspondingly, Lord Justice Rimer at §69 asks whether the necessary warning was implicit in the material letter sent by King's to Mr Cartwright. Since he finds, and I entirely agree, that it was not, nothing more in this appeal turns on it.
- But "implicit" and "implied" are words which have to be handled with care. The statute is quite clear that there is to be a "statement" which "sets out" the necessary things. While there may be cases in which, in its factual context, a document so obviously means or refers to something it does not actually spell out that it can still be said to be a statement which sets out the requisite matters. But it is in that sense and that sense only that one can properly qualify the statutory requirement by accepting as implicit something which is not – as it should be – explicit.
- The present case illustrates the caution that is needed. Underhill J, a judge of great experience in this field, thought the necessary warning was implicit in the letter. So, to those working in the field, it may well be. But all three members of this court are clear that, for the reasons set out by Lord Justice Rimer, it was insufficient to meet the statutory requirement.
- The second point is less one of law than of moral philosophy. At §94 ff Lord Justice Rimer considers and rejects a new point that Mr Cartwright now wanted, if necessary, to argue but which he had not previously advanced because he had not appreciated that one could advance alternative arguments based on different premises.
- I agree with Lord Justice Rimer that it was too late to raise this particular point once the case had gone to appeal. But I do not, with respect, adopt his strictures in §96-7 on Mr Cartwright's attitude and understanding. The concept of alternative arguments is of course bread and butter to every lawyer. But to many intelligent lay people it smacks of the intellectual dishonesty of the amateur lawyer in the tale (recounted by the late Sir Robert Megarry in his first Miscellany-at-Law, p.46) who advised his neighbour, when sued for damaging a borrowed pony cart, to plead that he had never borrowed the cart; alternatively that the cart was already damaged when he borrowed it; alternatively that he had used it with care and returned it undamaged; alternatively that it was not the plaintiff's cart.
- While, as I entirely agree, none of this justifies waiving principles which are there for the protection of the other party simply because a litigant in person has not understood them, it does, I think, serve as a reminder to tribunals that it may sometimes be only fair to ensure that litigants in person understand that they are not tied to a single factual or legal premise but, like lawyers, can contingently shift their ground, even if not quite as casually as the sea-lawyer in the story.
Published: 29/10/2010 11:39