Appeal No. EAT/576/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16th November 1992

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR D O GLADWIN CBE JP

	MR J C RAMSAY

PEMBROKESHIRE HEALTH AUTHORITY	APPELLANTS

MRS P FOGDEN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J CAVANAGH
(Of Counsel)
Phillips & Buck
Fitzalan House
Fitzalan Road
Cardiff
CF2 1XZ

For the Respondent	MR P MARSHALL
(Of Counsel)
Leo Abse & Cohen
40 Churchill Way
Cardiff
CF1 4SS

	MR JUSTICE TUCKER:  The Appellants, the Pembrokeshire Health Authority, were the Respondents below.  They appeal from a decision of the Industrial Tribunal sitting at Carmarthen on the 5th July 1990, whereby the Tribunal found by a majority that the Respondent to this appeal, Mrs Pamela Fogden, the Applicant below, had been unfairly dismissed.  That decision was reached because of the manner in which the Appellants dealt with the issue of alternative employment.  The grounds of appeal are that the Tribunal erred in law.  Alternatively, they reached a decision which no reasonable tribunal could have reached.  Alternatively, they reached a decision which was inconsistent with its primary findings of fact and the evidence, and was unsupported by the evidence.  In short, it is submitted that the decision was perverse.

	The Respondent was employed by the Appellants as Manger of the Night Nursing Services at the Withybush General Hospital in Haverfordwest.  In due course, and after many years service by her, it became clear that that position had to go, due to re-organisation.  The hierarchy and staffing arrangements of the Hospital are set out in considerable detail in a part of the Tribunal's decision which is not under challenge and there is no need to repeat them.  The Tribunal as a whole accepted the evidence of the Appellants' witnesses on the specific matters set out in the decision.  Nevertheless, the majority of the Tribunal made the following three findings:
"1.the appellants had made up their minds that the respondent should not be offered alternative employment.

 2.the appellants deliberately put off Mrs Fogden from applying, and when she did apply, they did not appoint her either to the H Grade Surgical or to any other post.

 3.the appellants took a decision not to offer the respondent a lower post because this would involve the extra expense of a protected salary."

The grounds given by the majority for its conclusion that the Appellants had decided not to offer the Respondent alternative employment are set out in paragraph 35 of the decision and are that the Appellants told the Respondent that they did not regard the H grade or any other post as suitable alternative employment, as it seemed that that was because the Appellants did not wish her to take it.  The Appellants submit that the conclusions set out in paragraph 35 are irreconcilable with the findings of primary fact previously set out in the decision and that there was accordingly an error of law on the face of the decision.  Alternatively, that the Tribunal erred in law in finding that the Appellants' response to the redundancy situation fell outside the range of responses open to a reasonable employer and that there was no evidence upon which the majority could rely and that their decision is perverse.

	Counsel for the Appellants recognises that this Appeal Tribunal will be very circumspect in its approach to allegations of perversity and will take great care to ensure that questions of fact are not elevated to propositions of law under this guise.

	The approach of this Appeal Tribunal to such problems is set out in the judgment of the President of the Tribunal, sitting with Mrs Boyle and Mr Scouller in the case of East Berkshire Health Authority v. Matadeen [1992] IRLR 336.  It suffices to refer to passages in the headnote taken from the judgment of the President, Mr Justice Wood:
"Perversity is a free-standing basis in law on which the EAT can interfere with the decision of an Industrial Tribunal.  The EAT can allow an appeal against the Tribunal's decision if, first, there is an error of law on the face of the decision, a misdirection or a misapplication of the law;  secondly, if there is a material finding of fact relied upon by the Tribunal in the decision which was unsupported by any evidence or contrary to the evidence before them;  and, thirdly, if there is a finding of perversity.  That perversity, properly understood, is a free-standing basis is supported by the speech of Lord Fraser of Tullybelton in Melon v. Hector Powe Ltd.

Thus, even on factual findings of an Industrial Tribunal, the EAT can interfere if the members are satisfied in the light of their own experience and of the sound practices in the industrial field that the decision is `not a permissible option', per Lord Donaldson MR in Piggott Bros v. Jackson; or that it is `a conclusion which offends reason or is one to which no reasonable Industrial Tribunal could come' or `so very clearly wrong that it just cannot stand', per May LJ is Neale v. Hereford and Worcester County Council; or, to paraphrase Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, the decision was so outrageous in its defiance of logic or of accepted standards of industrial relations that no sensible person who had applied his mind to the question and with the necessary experience could have arrived at it.

However, the occasion upon which the EAT can interfere with the decision of an Industrial Tribunal on the ground of perversity is likely to be very rare.  EAT members should caution themselves against so doing and, in particular, be careful not merely to substitute their own views for those of the Tribunal.  They cannot interfere merely because they disagree.  They cannot interfere even if they feel strongly that the result is unjust.  However, in that latter case, it may be that on careful analysis the decision flies in the face of properly informed logic."

We bear that judgment well in mind and those criteria too when examining the conclusions of the majority in the present appeal.  But we are bound to say that we do find a number of those findings unsustainable.

	First, there is the conclusion that the Appellants had made up their minds that the Respondent should not be offered alternative employment, and that they deliberately put her off applying for the H grade or any other post.  We find that view to be incompatible with the unanimous finding of the Tribunal set out in paragraph 30 of the decision:
"There is no doubt that Mrs Fogden was given the opportunity to apply for a number of posts, both above and equivalent to the one which she formerly held."

and with the finding in paragraph 13 of the decision that:
"Mrs Fogden told us that the Chief Administrative Nursing Officer Mr Thomas had made a proposal to her for secondment for 12 months with a view to her expanding her career."

and with the finding of the Tribunal set out in paragraph 20 to this effect:
"Unconnected with this was the letter which Mrs Rees wrote the same day offering Mrs Fogden, at her request, experience in the Theatre and then in the Accident and Emergency Department."

Moreover, the Tribunal unanimously took the view that:
"the Respondent cannot make any sensible complaint about her treatment" (Para.30)

and said that:
"we fail to detect in the evidence any real sustained criticism of the appellants for failing to appoint her to these posts."

(paragraph 31.)

	As for the conclusion that the Appellants put the Respondent off from applying, we find great difficulty in reconciling that with the unanimous finding also set out in paragraph 20:
"Mrs Rees [the Nursing In-Patients Services Manager] invited the Respondent to apply for the H Grade post"

or the finding that the Appellants were having doubts about the necessity of appointing H Grade Assistants.

	All Members of the Tribunal regarded the original proposal as anomalous.  As for the Appellants' attitude to any application by the Respondents for appointment to other posts than H grade it seems to us that the majority's conclusion is not supported by, and is in conflict with, the fact that the Appellants are found to have stated in the letter referred to at paragraph 15 of the decision that they:
"formally asked the senior nurses to notify her [the Respondent] directly of any vacancies that occur irrespective of grade."

and in paragraph 22 the Tribunal found that the Respondent was given a list of 8 junior posts.

	There is frequent mention in the correspondence between the parties of "suitable alternative employment".  This expression is clearly derived from, and is a reference to, Section 45 of the Whitley Council Agreement, setting out arrangements for redundancy payments.

	 There was some argument before the Industrial Tribunal of the meaning to be attributed to this expression and to the Section itself.  The Tribunal expressed a view on this at paragraph 30 of the decision with which we agree.  They say this:
"Mr Bush's interpretation of the Whitley Council Agreement is correct.  It does not require that a redundant employee be guaranteed suitable alternative employment.  Section 45 is concerned with circumstances in which an employee can forfeit a redundancy payment by unreasonably refusing or failing to apply for `suitable alternative employment'."

	Counsel for the Appellant submits that it is in the employee's interest that as few alternative jobs as possible are characterised as suitable alternative employment, so as to minimise the risk that she might lose her redundancy entitlement. We see the force in this and we accept Counsel's submission that the only sensible conclusion on the evidence and primary findings is that Mrs Rees said that certain posts were not suitable alternative employment so as to make it clear that the Respondent did not risk losing her redundancy payment if she did not apply for or accept them.

	There is a further conclusion of the majority which is criticised, and with some justification in our view.  I refer to their acceptance that a decision was taken by management not to offer the Respondent a lower post because this would involve the extra expense of a protected salary.  This suggestion seems to have been referred to by the Respondents' representative in opening her case to the Tribunal.  But the only evidence in support of it came right at the end of the Hearing during the Respondents' re-examination.  For reasons I need not go into she was the last witness to give evidence.  This matter had not been put to the Appellants' two witnesses in cross-examination.  Apparently the Appellants were given the opportunity to recall their witnesses but chose not to do so.  We think that this was a most unfortunate situation. It would have been better if the Chairman of the Tribunal had considered whether he should direct this to be done if there was a possibility that any reliance might be placed upon the Respondent's answer.  In the event it was wholly unsatisfactory, in our view, to draw any firm conclusion from such evidence, untested as it was, and appearing right at the end of the Respondent's case.  In any event it is inconsistent with the evidence of the Appellants' witnesses recorded in the Chairman's Notes that the reason for concern about moving the Respondent to a lower grade was the fact that many of the staff at that grade would have been managed by the Respondent in the past and with the fact that the Respondent was in fact offered the chance of obtaining positions at a lower grade.

	The majority say that they are confirmed in their view by the fact that the offer of the Ward 2 vacancy was not made until the 8th January 1990 and they say this:
"It seems likely that the Sister in that post had given at least 4 weeks' notice to terminate her employment.  That according to Mrs Rees, would probably have been early to mid-December."

The evidence of Mrs Rees on this point is set out in the Chairman's Notes.  In examination in-chief she said:
"The sister on ward 2 decided to leave in December.  I cannot remember when she handed in notice."

and in the course of cross-examination she said:
"I do not know when the sister gave notice.  It would be sometime in December.  She gave notice to leave either at the end of December or the beginning of January."

This matter is by no means clear-cut.  We do not regard this particular criticism of the majority as sufficient of itself to invalidate their decision, though we would be doubtful whether the evidence before them was quite sufficient to enable them to reach the decision which they did on this point.

	Counsel for the Respondent in a succinct address persuades us by reference to the correspondence that the Respondent was, from May to December 1989, making attempts and enquiries in order to obtain some employment with the Appellants, but he is far from having persuaded us that the Appellants, to use his words, "strung the Respondent along as to whether the H Grade post would be offered to her".  In our view he wholly fails in his attempt to support the majority's finding that the Appellants deliberately put off the Respondent from applying for that or any other post.

	The unanimous findings of fact made by the Tribunal suggest the opposite position. 

	We agree with the Respondent's Counsel as to the function of this Appeal Tribunal.  It is not our duty to examine the evidence with the meticulousness of a Chancery Conveyancer.  We should not lack robustness in supporting the findings of fact made by an Industrial Tribunal and we should be careful not to disturb findings made by that fact finding Tribunal.  Nevertheless, as the cases show, there are instances where the decision made below cannot after a careful analysis, be logically supported.  This is in our view such a case, happily an exceptional case, and we are bound to say that it is a perverse decision in the sense used by the President in the case of East Berkshire Health Authority v. Matadeen to which I have referred.

	Accordingly, we allow this appeal.  The decision that the Respondent was unfairly dismissed will be quashed and a decision that she was fairly dismissed will be substituted for it.