Appeal No. EAT/1069/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 September 1998

Before
HIS HONOUR JUDGE J HICKS QC
MR K M HACK JP
MS B SWITZER

DR D P AIKMAN	APPELLANT

BIOTECHNOLOGY BIOLOGICAL SCIENCES RESEARCH COUNSEL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Preliminary Hearing
Revised

	APPEARANCES

For the Appellant	Appellant in person	

	JUDGE J HICKS QC:	The Appellant Dr Aikman was a senior highly qualified and experienced research scientist in the employ of the Respondents, the Biotechnology Biological Sciences Reserch Counsel, until he was dismissed in 1997 under a notice of dismissal on the grounds of redundancy.

	He complained to the Industrial Tribunal that that was an unfair dismissal and the Industrial Tribunal found that it was, and the employers have not appealed against that decision.  There was then a later Remedies hearing at which Dr. Aikman applied for the Remedy of reinstatement or alternatively re-engagement and the Tribunal rejected that application and awarded monetary compensation as the Remedy.

	Dr. Aikman appeals against their rejection of his request that the Remedy of reinstatement or re-engagement be ordered.  The reinstatement point is not actually, as we understand it, raised in his notice but he wished to argue it and we therefore heard him.  That is dealt with by the Tribunal in particular in paragraphs 2.7 and 2.8 of their Remedies decision and their finding was that Dr. Aikman’s job had in effect disappeared, that the funding for it had been removed, that to return him to it would require funding to be taken away from other projects and that it would exceed their function - the Tribunal’s function - if they were to interfere with the employer’s discretion  and its allocation of resources.  We find no error of law in the Tribunal’s treatment of that issue and turn to re-engagement.

	The issue of re-engagement seems to have centered very largely on a particular job called “Job 1000W”, Dr. Aikman asserting that he was suitable for that job and that it would have been practicable for the employers to have re-engaged him in that post, the employers disputing that contention .

	Dr. Aikman says that the Industrial Tribunal allowed the employer to use its ignorance of his capabilities to excuse its failure to offer him that job.  That we take to be a way of putting a point which lawyers perhaps would put more technically in this way.

	The Tribunal in paragraph 2.16 of its Reasons said as to that job that:

“Dr. Aikman gave evidence that he could have covered all the areas of the job specification of job 1000W and it is our assessment that that is probably right.”

	And then a little later, after discussing whether he needed a bit of refreshment of certain capabilities, they say:

“Nevertheless, we are satisfied that it would have been practicable for the Applicant to have done that job from a skills and experience point of view.”

	However they say:

“We do accept that the Respondents were not aware at the time the recruitment process was underway that the Applicant was interested in that job.  Nor did they have any belief at the time that it might be suitable for him, and we are obliged to find that they approached the recruitment process in good faith.”

	And then they begin the next paragraph by saying:

“Had we not considered the recruitment process to have been conducted in good faith, we may have taken a different view.”

	The thrust of that objection, expressed perhaps in rather more technical legal terms than Dr. Aikman used, but it seems to us to be the thrust of this point, is that the Tribunal should have acted on their own assessment of the practicability of his being offered that job and not simply found against him on the basis that the employers were acting in good faith in the judgment that they reached.

	We consider that that ground of appeal is an arguable point which should go to a full hearing, but as I have said we have rejected the criticism which Dr. Aikman made of the reinstatement conclusion of the Tribunal, nor do we think that there is anything in any of the other points that he made insofar as they were separate.  In particular, he wished to attack the finding of good faith itself, but that is a finding of fact made by the Tribunal on the evidence before them.  There is absolutely no ground whatsoever for supposing that they erred in law in reaching it and there is no appeal to this Tribunal on grounds of fact.  

	What we propose to do therefore is to direct that this appeal proceed to a full hearing on one ground of appeal only, the terms of which I shall now read:

“The Tribunal erred in law in determining the issue of practicability of re-engagement in relation to job 1000W by reference to whether the employer acted in good faith instead of by making and/or acting on their own finding of fact in that regard.”

	On that basis it seems to us that no further documents or anything of that kind are needed.  The ground, if it is good, appears on the face of the Tribunal’s decision and can be argued perfectly easily, and indeed very briefly, on that basis.