Maund v Penwith District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE GRIFFITHS,LORD JUSTICE PURCHAS |
| Judgment Date | 02 November 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1102-2 |
| Docket Number | 83/0423 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 November 1983 |
[1983] EWCA Civ J1102-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Lord Justice Stephenson
Lord Justice Griffiths
and
Lord Justice Purchas
83/0423
EAT/9/82
MR. R. BUXTON QC and MR. D. TURRIFF (instructed by Messrs. Sharpe Pritchard & Co, Solicitors, London WC2B 6PZ, Agents for Mr. J. Ottaway, Solicitor, Penzance) appeared on behalf of the Respondent (Appellant)
MR. E. TABACHNIK QC and MISS E. LAING (instructed by Miss Penelope Grant, Solicitor, London WC1H 9AJ) appeared on behalf of the Applicant (Respondent)
I ask Lord Justice Griffiths to give the first judgment.
Mr. Maund was employed by the Penwith District Council as an architect. He was dismissed by the Council on 20th October of 1981 on the grounds of redundancy. Mr. Maund presented a claim to the Industrial Tribunal for damages on the grounds of unfair dismissal. He claimed that the true reason for his dismissal was not redundancy but the Council's dislike of his trade union activities.
On 18th November the Industrial Tribunal unanimously dismissed his claim, holding that Mr. Maund had been dismissed for redundancy and that his dismissal was not unfair. Mr. Maund appealed to the Employment Appeal Tribunal who, on 27th May, allowed his appeal and referred the case back to the same Industrial Tribunal for a further hearing. The Council now appeal against that decision of the Employment Appeal Tribunal.
Mr. Maund had been employed by the Council or its predecessor since 1974 and was, at the time of the events with which we are concerned, the chief architect. In 1980 he was elected chairman of the Penwith sub-branch of his union. He was an active chairman, and during his term of office industrial relations between the Council and its staff deteriorated; as the Industrial Tribunal put it, it would seem that some councillors were taken by surprise by members of the staff standing up for their rights, and did not like it.
In the summer of 1981 the Council had to take a decision that led to these proceedings. The last available building land in their area was at Heamoor. On 27th May the Housing Services Committee considered a long report by the Chief Housing and Technical Officer about the development of this land for council housing. It set out three options: (1) Putting out the work to private tender; (2) Employing an independent architect, and (3) Carrying out the project by the Council's own in-house architectural staff. The report recommended using the in-house architect; that is, Mr. Maund and his department. The committee did not accept the recommendation and passed a resolution recommending that the work be put out to private tender, or alternatively that a private architect should be employed.
On 24th June 1981 the Council considered this recommendation of the Housing Services Committee. After a debate, the Council voted on the recommendation; there were fourteen votes in favour of adopting it and fourteen against. The chairman cast his casting vote in favour of the recommendation and so it was approved and adopted.
This decision inevitably meant that the Council would for the foreseeable future have no further need for Mr. Maund's services; there would be no work for him. The councillors must have appreciated this, particularly as the consequences of voting in favour of the recommendation had been drawn to their attention in a letter dated 23rd June, written by the Chief Planning and Development Officer.
The remaining events followed as relentlessly as a Greek Tragedy. On 12th August the Resources Committee recommended disbandment of the architectural section. On 17th September the Council accepted the recommendation. On 7th October the Resources Committee recommended that Mr. Maund be dismissed on grounds of redundancy. On 20th October the Council approved the recommendation and Mr. Maund was dismissed on the grounds of redundancy.
On the face ot it, this was a classical redundancy situation. As the result of a decision to go out to private tender, there was no further need for the Council to employ the services of an architect. But Mr. Maund claimed that things were not as they seemed. In a two-day hearing before the Industrial Tribunal he gave and called evidence in an attempt to show that the real or principal reason for his dismissal, to use the language of the Act, was the Council's objection to his trade union activities, which led them to engineer a redundancy situation as a pretext for dismissing him.
The law that has to be applied by an Industrial Tribunal in a situation such as this is clear enough. Section 57, sub-sections (1) and (2) of the Employment Protection (Consolidation) Act of 1978 places the onus on the employer to show the reason, and if more than one reason the principal reason, for the dismissal; and to show that the dismissal was for one of the reasons set out in sub-section (2) of s.57, or for some other, substantial reason of a kind such as to justify the dismissal. If the employer is unable to show any such a reason, the decision must be deemed to be unfair. Furthermore, s.58 provides that if the dismissal is because of trade union activity it is to be deemed to be unfair. The legal burden of proving the reason for the dismissal is, by the wording of the Act, placed on the shoulders of the employer. This is obviously sensible; the employer knows why he dismissed the employee, but the employee may not. If authority is needed for this proposition, it is to be found in a recent decision of Northern Ireland Court of Appeal in the case of Shannon v. Michelin (Belfast) Ltd, (1981) Industrial Relations Law Reports, 505. As a general rule there should be little difficulty in the employer's discharging this burden; I should have thought that there will be very few cases when, after a full investigation of the facts, a tribunal will be left in any real doubt as to the reason for the dismissal, especially when one bears in mind that the employer's burden is the civil, not the criminal, burden of proof. But in the exceptional case, in which the employer cannot satisfy the tribunal as to the reason for which he dismissed his employee, the dismissal must be regarded as unfair.
If an employer produces evidence to the tribunal that appears to show that the reason for the dismissal is redundancy, as they undoubtedly did in this case, then the burden passes to the employee to show that there is a real issue as to whether that was the true reason. The employee cannot do this by merely asserting in argument that it was not the true reason; an evidential burden rests upon him to produce some evidence that casts doubt upon the employer's reason. The graver the allegation, the heavier will be the burden. Allegations of fraud or malice should not be lightly cast about without evidence to support them.
But this burden is a lighter burden than the legal burden placed upon the employer; it is not for the employee to prove the reason for his dismissal, but merely to produce evidence sufficient to raise the issue or, to put it another way, that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal.
If the employer establishes a reason within the meaning of S.57 (l) and (2), the tribunal then has to decide whether he acted fairly in treating that as a sufficient reason for the dismissal: see sub-section (3). At this stage of the enquiry neither party has a legal burden of proof placed upon it. The tribunal arrives at its conclusion upon its assessment of the totality of the evidence placed before it.
In assessing the reason for a corporate decision, it may not always be sufficient to look solely at the reason recorded in the minutes: see Smith v. Hayle Town Council, reported in (1978) Industrial Cases Reports, p.996. At p.1003 Lord Justice Eveleigh, when considering this question, had this to say:
"So one comes to consider whether the facts in this case did entitle the industrial tribunal to come to the conclusion that it did. I would have been inclined to think that, when one asks for the reason for corporate action, the action of all concerned in arriving at that decision should be considered and the court should make up its mind, from all the material available, what the corporate mind was thinking. In this particular case certainly one voter voted because of an anti-union prejudice. But can it be said that that should be regarded as the principal reason, or must one be driven to the conclusion—for that is the kind of test we have to apply—that that was the principal reason? It seems to me that, as emphasis is laid in various parts of this Act upon the words 'principal reason', the Schedule contemplates that there can be other reasons that operate, but they may not be the principal one. From that it follows that there may be some form of antiunion prejudice that could exist, but none the less that would not so cloud the issue as to make an antiunion sentiment the principal reason".
Furthermore, if all that can be shown is that one councillor out of seven cast his vote for a particular reason, that will not of itself be sufficient to show the principal reason for the decision: see the judgment of Sir David Cairns in the same case at p.1003 at letter H:
"….. I think it would be permissible to look at what was said at the meeting in order to see what actuated the minds of those who voted...
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