United Kingdom Employment Appeal Tribunal

BAILII case number: [1991] UKEAT 590_89_0205

Appeal No. EAT/590/89

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 2 May 1991

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MRS M L BOYLE

MISS A P VALE

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BOUNTY SERVICES LTD          APPELLANTS

MRS C ASHTON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants Miss D Holliman

(Employment Services Manager)

Messrs Howes Percival, Solicitors

Oxford House

Cliftonville

Northampton

NN1 5PN

For the Respondent Mrs R Kaplan

(Representative)

Sheffield Law Centre

1st Floor

Waverley House

10 Joiner Street

Sheffield

S3 8GW


 


MR JUSTICE WOOD (PRESIDENT): By an Originating Application which was dated 13 June 1989 Mrs Christine Ashton complained that she had been unfairly dismissed by her employers Bounty Services Ltd. She also claimed in the alternative, redundancy and "a written statement of main terms and conditions of employment". In the particulars of her Originating Application she explained that although she had written and asked for the full terms and conditions of her contract of employment, including the grievance procedure this had not been sent to her.

Her case was heard before an Industrial Tribunal sitting at Sheffield on Thursday 14 September 1989, under the Chairmanship of Mr Glossop. The Tribunal found that she had been unfairly dismissed and awarded compensation of £1,088. It did not so far as we can see deal with a failure to provide written statement of main terms and conditions of employment.

The Applicant had been employed by the Company, which had its registered office at Diss in Norfolk, for some six years prior to her dismissal on the 8 June 1989. Her employment consisted in going round to maternity hospitals and selling products to the mothers who had recently given birth. At the relevant time the Company employed some 209 distributors and we understand they are in the same position as Mrs Ashton. They were all part time workers.

A document was placed before the Industrial Tribunal signed by Mrs Ashton and dated the 18 May 1988 which contained the following clause:

"I understand that this is a part time position and the hours taken to do the job are assessed in relation to the amount of work required and also that these hours can be varied at the sole discretion of the company in relation to the needs of the business."

That as we have said was dated 1988, so it must have been a variation on some other document because she had been employed for some six years, as found by the Tribunal.

That clause was in a document which could not in any way be described as a contract of employment that complies with the provisions of Section 1 of the Employment Protection (Consolidation) Act 1978. All the employees of this Company are clearly entitled to a proper document in accordance with the provisions of the Act, and if this Company does not comply with that it should not be surprised to find itself taken to industrial tribunals all over the country.

Mrs Ashton went sick; the original basis upon which she had been working had been that she visited three hospitals and worked something like 16 hours a week. Whilst she was away ill her duties were changed. When she returned she was seen by her immediate superior, a Mrs Storrs, and told of the change, namely that she was to cover two hospitals only and that her hours were going to be reduced to about 7 hours. Mrs Storrs did not give evidence before the Tribunal and we do not know from the Decision exactly what happened at that discussion. However, Mrs Ashton was not happy with this and she wished to look into the matter.

She, thereafter, was in correspondence with the Managing Director, a Mr Haynes; he did not give evidence to the Tribunal. The only witness for the Company was a Mr Leonard, who was the Financial Director and whom Mrs Ashton had never seen before seeing him at the Tribunal hearing.

In the correspondence between Mr Haynes and Mrs Ashton, which eventually terminated in a letter of dismissal, Mrs Ashton had, as we have already pointed out, been asking for the terms and conditions of her contract of employment and also about grievance procedure.

As has been pointed out to us by Miss Holliman who represents the Company before us, the Tribunal referred in a number of paragraphs of the Decision to attempts to vary this contract. She takes the point that by using the word "variation" or "negotiation" the Tribunal wrongly understood the position and were implying a "term" into an express "contractual term" which it had no business and no right to do.

It has been said time and time again that Decisions of Tribunals must be read as a whole and not treated like pleadings. We have read this Decision; it is a short Decision; in some ways it is so short that one must understand, or try to understand a little more than is actually expressed but there is no doubt in our mind that the words "variation" or "negotiation" are not used in any technical sense; it might have used "consultation" or "discussion" and it is in that sense that this whole Decision must be read.

Their findings in the main, are to be found in paragraphs 9, 10 and 11 of the Decision. Paragraph 9 reads:

"The tribunal has been greatly concerned in this matter by the manner of dismissal and for a large company employing as many as 209 part timers they consider that it was totally unacceptable. Admittedly both sides were in an entrenched position but the tribunal finds that the procedure followed for the dismissal was unfair and unreasonable particularly bearing in mind that at all times Mrs Ashton, or Mr Ashton on her behalf, was seeking to be sent to them the terms and conditions of employment including grievance procedures etc., and these were never sent."

Now there in paragraph 9 is a clear criticism of the procedures and of the way in which this matter was dealt with.

In paragraph 10 the Tribunal are criticised and we think there is some basis for the criticism, that they were really expressing their view on what the employer should have done, that it should not perhaps have exercised its decision to vary the hours and number of hospitals as it did. That was essentially a management decision and not one which the Industrial Tribunal was entitled to criticise nor to substitute its own view. Paragraph 10 however, reads thus, and it is right because it is criticised that we should read it:

"Mr Haynes, when he carried out the dismissal, was not reasonable and the tribunal find that any reasonable employer at that time would have called Mrs Ashton to a meeting to explore the possibilities of the matter being resolved by negotiation particularly bearing in mind that whilst the tribunal are minded to think that the decision to reduce the hospitals from 3 to 2 was in all probability a reasonable management decision they do not consider that it is likely that the decision to reduce the hours to 7½ was."

There again, the important part is the question of consultation and meeting and we do not think that any transgression into the realms of management vitiate the decision.

Paragraph 11 comes back to what was said in paragraph 9:

"Therefore the tribunal consider that there is a very good chance that if a different procedure had been followed the result might have been different.

The unanimous decision of the tribunal therefore is that because of the failures in procedure on the part of the respondent company the decision to dismiss was unfair."

Miss Holliman as we have already indicated, criticises the Tribunal and submits that what happened here was that it implied a term into that clear contractual right to vary the hours and the hospitals. She relies on the Decision in this Court of a division presided over by Mr Justice Knox, namely United Bank v. Akhtar (1989) IRLR 507. We do not feel it necessary to go into the facts of that case but in paragraph 44 the learned Judge says this:

"What Mr Akhtar, by signing the contract, accepted was that there was conferred upon the bank a discretion. What Mr Akhtar did not, in our view, accept, was that the bank, in any particular circumstances, would not necessarily be under an obligation to exercise that discretion. It seems to us that there is a clear distinction between implying a term which negatives a provision which is expressly stated in the contract and implying a term which controls the exercise of discretion, which is expressly conferred in a contract. The first is, of course, impermissible. We were referred to authority for that proposition but authority is hardly needed for it. The second, in our judgment, is not impermissible because there may well be circumstances where discretions are conferred but, nevertheless, they are not unfettered discretions, which can be exercised in a capricious way."

The word "capricious" is to be noted as was observed by one of the lay members during argument this morning. It is fundamental to good industrial practice, and indeed both industrial members take this view, that there should be communication; there should be consultation; there should be the opportunity for an employee to express a view. A capricious or sudden decision saying "that's it, take it or leave it" is not in the best interests of industrial relations.

Looking at this Decision broadly and understanding as best we may what was in the minds of the Industrial Tribunal, it decided that having looked at the correspondence; having heard Mrs Ashton; not having heard Mr Haynes; not having heard Mrs Storrs, it took the view that the procedure was open to criticism; it was unreasonable; they might have thought that it was high handed, we know not, they did not use that expression, but nevertheless there was evidence before them on which they were perfectly entitled to decide that this dismissal was procedurally unfair. They did so, we can find no error of law on that matter whatsoever. If in fact there was any error of law over the possible use of the word "negotiate" we are not of the view that it in any way vitiates the remainder of the Decision which is based, as we have read it, on the failure of procedure.

There is a cross appeal here, we do not feel in the circumstances it is necessary to deal with the cross appeal because we are quite satisfied that there is no fundamental error of law here which vitiates the Decision in favour of Mrs Ashton and this Appeal must be dismissed.