Cartwright v King's College London
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Patten,Lord Justice Sedley |
| Judgment Date | 27 October 2010 |
| Neutral Citation | [2010] EWCA Civ 244,[2010] EWCA Civ 1146 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 October 2010 |
| Docket Number | Case No: A2/2009/1827 |
[2010] 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
Before: Lord Justice Sedley
Lord Justice Rimer
and
Lord Justice Patten
Case No: A2/2009/1827
Case No: UKEAT/0103/09/ZT
The Appellant, Douglas Cartwright, appeared in person
Thomas Coghlin (instructed by Pinsent Masons LLP) for the Respondent
Hearing date: 19 May 2010
Lord Justice Rimer:
Introduction
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 legislation
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:
‘98. General
(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. -(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
2. –(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
3. –(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).
The facts
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...
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