Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    996/14

 

 

 

CLAIMANT:                      Patricia Flanagan  

 

 

RESPONDENT:                Belfast Metropolitan College

                                       

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that the claimant was reinstated following the outcome of the independent LRA appeal and so the tribunal has no jurisdiction to deal with the claim of unfair dismissal.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge McCaffrey

 

 

Appearances:

 

The claimant was represented by Mr G Daly, Solicitor, Francis Hanna and Co. Solicitors.

 

The respondent was represented by Mr Conor Hamill, Barrister-at-Law instructed by J Blair Employment Law Solicitors.

 

 

The Issue

 

 

1.       This matter was listed for a Pre-Hearing Review to consider the following issue:-

 

                    “Whether or not the tribunal has jurisdiction to hear the claim of unfair dismissal, i.e. whether the claimant has been reinstated in fact and in law following her LRA appeal decision?

 

2.       The background to this was that the claimant was suspended from her post with the respondent on 10 June 2013 and was dismissed on 7 March 2014.  She lodged an unfair dismissal claim on 28 May 2014.  The respondent contended that the dismissal was fair.  The claimant accessed an independent appeals procedure through the Labour Relations Agency which was completed on 25 August 2014.  The outcome of that appeal was that the respondent was required to reinstate the claimant to her substantive role with immediate effect and secondly, to reimburse her in relation to her financial and employee entitlements from the date of dismissal, i.e. 7 March 2014 to the date of reinstatement.

 

3.       At a Case Management Discussion held on 12 September 2014, it was indicated that there was an attempt to resolve the matter through a return to work following mediation and a postponement was requested.  There was a further review by telephone conference on 12 November 2014 and on 19 November 2014 when this Pre-Hearing Review was arranged.

 

4.       It was the respondent’s case that they accepted the outcome of the appeal was contractually binding on both parties.  They had agreed to reinstatement of the claimant and she had been paid since mid-September 2014.  They also indicated that at the date of hearing they were in the process of dealing with any arrears of pay and reinstating her pension entitlement.  It was their submission that, in accordance with the decision of the Northern Ireland Court of Appeal in McMaster v Antrim Borough Council [2010] NICA 45 [2011] IRLR 235, the claimant had been legally reinstated in her post by the decision of the LRA Appeals Panel, and therefore the tribunal had no jurisdiction to deal with an unfair dismissal claim.

 

5.       It was the claimant’s contention that she had not returned to work because appropriate terms had not yet been agreed between the claimant and the respondent.  Her representative argued that until she was reinstated in fact, she was not effectively reinstated in law.  There was no suggestion from either party that the contract of employment contained any provision to suggest the LRA appeal was not legally binding.

 

Discovery Application

 

6.       At the outset of this hearing the claimant’s representative sought discovery of course materials prepared by some of the claimant’s colleagues in October 2014.  This was part of a course referred to as ‘The Assured Skills Academy Delivery’.  The claimant argued that these courses amounted to the “FRESH” course which she should have delivered had she returned to work.  The claimant’s claim essentially was that she was being invited to return to a different role to that which she had previously held as Creativity and Innovation Lead.  The claimant argued that on her return to work she should still be delivering the FRESH programme which had been a substantial part of her role prior to her suspension and dismissal.  It was the respondent’s case that the FRESH programme was no longer such a large part of their programme going forward and they were proposing that the claimant would undertake a different role, at least initially, for an initial project which would run over the next 9-10 months.  The claimant sought discovery of her colleague’s course materials as evidence of her claim that they had in effect delivered the FRESH course in October 2014.

 

7.       Mr Daly was however unable to produce any evidence to me which confirmed that these materials were relevant to the issue before me, which was whether the claimant had in fact and in law been reinstated to her post.  He failed to satisfy me that these documents were germane to the issues I was dealing with and accordingly I refused his application for discovery.

 

 

 

The Facts

 

8.       The respondent decided they did not wish to adduce any oral evidence in relation to this matter.  It was common case that the claimant had been paid her usual salary from September 2014.  The respondent asserted (and the claimant did not dispute) that they were in the process of dealing with arrears of pay and her pension matters, although these had not been fully dealt with at the date of this hearing.

 

9.       The respondent also referred me to a job proposal put to the claimant by the respondent and dated 11 November 2014 in relation to the role to which it was proposed she would return.  The proposal set out the responsibilities of that proposed role and reporting arrangements.

 

10.     The claimant gave detailed evidence in relation to the job she had previously carried out and the responsibility that she had for developing the study of creativity within the business context.  She was a non-teaching member of Belfast Metropolitan College staff, so while she delivered the FRESH programme to business people, she did not deliver it to students in the College.  This was done by teaching staff for whom she had certain supervisory responsibility.  Her main dispute with the respondent in relation to her return to work was that she believed she would not be returning to the role she had previously carried out particularly in relation to the FRESH project; she was not content either with the reporting arrangements which she considered as a demotion.  She had previously reported to the Head of Faculty but in her new role, the job proposal indicated that she would work initially with the Head of School who would be “your day-to-day contact in terms of line management and administration”.  That job proposal however continued by saying that for the purposes of the project she would report to a Project Board consisting of the Head of Faculty, Head of Learner Services and Deputy Director Development and Learner Services.  The proposal also indicated that reporting arrangements for this group would be agreed with the claimant on her return to work.  The claimant also regarded her loss of staff supervision as a loss of status.

 

11.     It was put to the claimant in the course of cross-examination that her job description as Creativity and Innovation Lead required her:

 

“To develop a series of programmes (creative thinking courses/programmes) that imbed within the substantive curriculum within the College and can stand alone as single programmes that are attractive to industry.  This includes, but is not limited to, the FRESH and TED programmes.” 

 

The previous sentence is one of a number of bullet points falling within the claimant’s responsibilities under her job description.  At the end of the job description there are five bullet points under the heading “General” and those responsibilities include:

 

“To promote, implement and ensure compliance with all College policies and procedures.  In particular to ensure equality of opportunity and the effective of application of health and safety procedures for all staff and learners within the School.”

 

At the end of the job description in bold type there is also the following:-

 

                    “Further Education is an every changing service [sic] and all staff are expected to participate constructively in College activities and to adopt a flexible approach to their work. 

 

                    Note: no job description can cover every issue that may arise within this post at various times and the post-holder is expected to carry out other duties which are broadly consistent with those contained in this document.  The job description will be reviewed and varied periodically by Management in the light of business needs of the College”.

 

12.     When it was put to the claimant that the new role she was being asked to carry out fell within the broad remit of her job description, she disagreed, saying that she believed there was no association with creativity and innovation in relation to the project she was being asked to do, which required expertise and evaluation of a teaching approach.  Her evidence was that she did not understand why she was not returned to a substantive job which she said still existed as regards the FRESH programme.  She did not accept that the business needs and priorities of the respondent College may have altered since June 2013 when she was suspended.  The claimant had not returned to work since June 2013.

 

THE RELEVANT LAW

 

13.     The issue in this case is whether the effect of the Independent Appeal Hearing carried out by the Labour Relations Agency was to reinstate the claimant to her substantive post, or not.  If she was so reinstated, then the effect of that reinstatement was that her dismissal had effectively not occurred, her contract of employment with the respondent continued and the tribunal would then have no jurisdiction to deal with a claim of unfair dismissal.  If, however, the reinstatement was dependent on some other act, such as agreement of the terms and conditions on which the claimant was to return to work, then reinstatement was not legally effective until it had actually occurred and the claimant had resumed work. 

 

14.     The relevant case law in this jurisdiction was analysed in the case of McMaster v Antrim Borough Council [2010] NICA 45, in which the Court of Appeal considered the effect of an LRA arbitration which was contractually final and binding on both parties.  The finding of the LRA procedure was that the claimant was to be reinstated to his post, but the respondent employer was not prepared to implement the panel’s recommendation regarding a lesser penalty, and notified the appellant that his dismissal stood.

 

15.     Giving the decision of the Court, Coghlin LJ said the following at paragraph 11 of his judgment:-

 

                    “The fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute including putting right, where necessary, any errors or shortcomings apparent in the initial hearing.  As a matter of principle, it is difficult to accept that the effective operation of an appeal could be prevented by an employer either refusing an employee the right to resort to such an agreed procedure or by rejecting an outcome considered to be adverse to his or her interest leaving the frustrated employee with compensation for breach of contract as his or her only remedy.  While they were essentially delivered per curiam, we consider apposite the words of Lord Bridge who, when delivering the judgement in West Midlands Corporate Society Ltd v Tipton [1986] AC 536 at 456, said:-

 

                              “Adopting the analysis which found favour in J Sainsbury Ltd v Savage [1981] ICR 1, if the domestic appeal succeeds the employee is reinstated with retrospective effect; if it fails the summary dismissal takes effect from the original date.  With thus insofar as the original dismissal and the decision on the domestic appeal are governed by the same consideration, s.c. the real reason for dismissal, there is no reason to treat the effective date of termination as a watershed which separates the one process from the other.””

 

16.     Later in his judgment at paragraph 12, Coghlin LJ referred to the judgment of the Court of Appeal in England and Wales in Roberts v West Coast Trains [2005] ICR 254 where Mummery LJ noted that the appeal decision in that case had been taken within the terms of the relevant contract and “it was not necessary to effect an express reinstatement to the position previously held by the employee nor was it necessary to make an offer to him to enter into a new contract in order to continue the contract of employment”.  The concurring judgement of Arden LJ included the following observation:-

 

                    “The applicant’s demotion was not a dismissal and the decision of the appeal process of the employer, made pursuant to the applicant’s contract with the employer, to demote the applicant, resulted in the continuation of the original contract of employment.  That is the normal result of an internal appeal procedure unless the contract otherwise expressly provides: see Lord Bridge in West Midlands Corporate Society Ltd v Tipton [1986] ICR 192,198”.

 

17.     Lord Justice Coghlin concluded in McMaster that:-

 

                    “The appellant enjoyed the right of appeal to an external agency, namely the LRA, as an integral part of his contract of employment agreed with the respondent and that contract specifically provided that the decision of the arbitration panel appointed by the LRA would be “final and binding on both parties”.  The appellant exercised that right of appeal and obtained a successful outcome.  The legal result is that that plaintiff’s contract must be regarded as reinstated at the date of his successful appeal.  In our view the refusal by the respondent to accept the contractually binding result of the appeal could arguably, in itself, amount to a repudiatory breach of the contract giving rise to potential grounds for wrongful dismissal.”

 

18.     I note that during the Case Management Discussions in this matter reference was also made to the decision of the Vice President in the case of AB v DC, XY & ZW (Case Reference number 195/14), in which similar issues were addressed.  In that case, the claimant had successfully appealed his dismissal through an LRA independent appeal.  The respondent however had refused to give effect to the outcome of that appeal.  There were complicating factors in that case due to the fact that there was a transfer of undertaking which also occurred, but the tribunal found that the effect of the appeal was to reinstate the claimant.  They quoted the analysis given in Sainsbury Ltd v Savage [1980] ILRA 109 that:

 

                    “That analysis leads to the conclusion that if an appeal is successful, it will retrospectively have the effect that an employee is no longer to be treated as dismissed.”

 

REASONS AND DECISION

 

19.     Mr Daly argued that unless the claimant was reinstated in fact, then she had not legally been reinstated.  Mr Hamill took the view that the effect of the LRA appeal decision was that the claimant was legally reinstated, with the fact of her resumption of work to follow.  Having considered the case law in relation to this matter it appears to me that the legal analysis as set out in McMaster indicates clearly that the effect of a successful appeal is that the claimant is legally reinstated as of the date of the appeal (see para 17. above).

 

20.     The respondent’s representative made it clear to us that, contractually, the respondent accepted the outcome of the appeal and accepted that it was contractually bound to reinstate the claimant.  She had been receiving and accepting her pay from mid-September 2014, and they were making arrangements to ensure that she received arrears of pay and that her pension entitlements were reinstated.  The only reason that she had not returned to work was that there was a mediation process ongoing in relation to her terms and conditions of return.  The respondent had clearly set out a proposal to the claimant, but she was reluctant to accept this as set out at paragraphs 9-12 above.  It was this failure to resume work which Mr Daly argued was fatal in terms of effective reinstatement. 

 

21.     It does not seem to me that the Court of Appeal agrees with him.  This is an unusual situation, in that often it is the employer who is reluctant to accept the outcome of an appeal which has the effect of reinstating the claimant.  In this case it is the claimant who is reluctant to return, although no criticism was attached to her from the respondent’s point of view.  There is a mediation process ongoing.  It is not relevant to consider in this decision whether or not the claimant was entitled to feel aggrieved in relation to the proposal put to her by the respondent.  The only issue I have to consider is whether or not the claimant has been legally and factually reinstated and therefore whether or not the tribunal has jurisdiction to consider a claim of unfair dismissal. 

 

22.     On the basis of the case law set out above and applying the judgments in McMaster, West Midlands v Tipton and Roberts v West Coast Trains it is my finding that as a result of her successful appeal, the claimant was reinstated to her post with effect from 25 August 2014, the date of the LRA appeal decision.  If in the future the parties are unable to agree terms for the claimant to resume her duties, that may be the subject of other procedures or proceedings.  That is not a matter I have to address at this time.  The case law makes it clear that once the appeal was decided in favour of the claimant, nothing further is needed to effect reinstatement; indeed Coghlin LJ suggested in McMaster that a refusal by the respondent to accept the contractually binding result of the appeal could arguably amount to a repudiatory breach of contract.  It may be that a refusal by the claimant to return to work may also be a breach of contract, but that is not something I need to consider here.

 

23.     It is my finding that as a result of the successful appeal, the claimant’s contract with the respondent is reinstated, her contract of employment with the respondent continues, and it is as though her dismissal in March 2014 has been expunged.  Accordingly the tribunal has no jurisdiction to deal with the claim of unfair dismissal, as the claimant has not been dismissed.

 

 

 

Employment Judge:      

 

 

Date and place of hearing:  19 December 2014, Belfast

                   

 

Date decision recorded in register and issued to parties: