United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 395_93_2911

Appeal No. EAT/395/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 November 1993

Before

THE HONOURABLE MR JUSTICE TUCKER

MR A FERRY MBE

MR J H GALBRAITH CB

---

MR M BALL          APPELLANT

ANDREW GRANT SERVICES LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant MR E HESS

Messrs Lamberts & Wade

Solicitors

15 Worcester Road

Malavern

Worcs

WR14 4QY


 


MR JUSTICE TUCKER: This is a Preliminary Hearing in the matter of Mark Ball v Andrew Grant Services Ltd. The `Appellant seeks leave to go forward to a Full Hearing on an appeal from the decision of the Industrial Tribunal sitting at Birmingham on 3 March 1993.

Their unanimous decision was that the Applicant was not unfairly dismissed by the Respondents. They set out full reasons for that decision. It is unfortunate that the Industrial Tribunal got the question of the Appellant's travelling expenses wrong where they found that:

"The applicant was a senior manager with a company car and travelling expenses paid at an agreed rate..."

and in a later passage they state:

"... to travel daily for about 35 minutes each way instead of about 10 minutes in a car provided by the company with travelling expenses paid."

The case arose out of the Appellant's employment with the Respondents who are well-known estate agents in the Worcestershire area. They have a number of offices, the head office being in Worcester. The Appellant was for many years very agreeably employed in the Malvern branch of the Respondents' business. He was well praised for the work he did there. He had established himself in the local community at Malvern and no doubt he was very happy in that appointment.

He had of course signed a draft contract which his employers had drawn up, one of the terms of which was that "the employer reserves the right to transfer you to any other of its 10 offices". One of its offices was in the new town of Redditch, to the north of the county, and we are told 40 miles in travelling distance from the Appellant's home at Upton-upon-Severn. It may be rather less but certainly a substantially greater distance to travel from his home than if he had continued to be employed in Malvern.

The application before us has been very well represented if we may say so, by Counsel who now appears, Mr Hess, who has urged 2 main points upon us. First, Mr Hess submits that there is no evidence to support the finding of fact to which we have referred relating to the travelling expenses to be paid to the Appellant. It may be that he is paid for the travelling expenses incurred in travelling out from the office to view or value properties for sale but there is no evidence that such expenses are paid for travel from home to work or back, and the arithmetic has shown that the increased journey would involve the Appellant in an expenditure of something like £1,200 pa. That, in relation to a salary of £14,700 pa plus of course bonus payments. That is one matter. The other is that no reasonable Tribunal it is submitted could have reached this decision in that it disregarded the ACAS code of practice, paragraph 10 of which provides:

"Except in the case of gross misconduct no employee shall be dismissed for a first breach"

In support of that submission Mr Hess urges us to say, as he has to, that the decision of the Tribunal was perverse.

We do not agree with those submissions. It is as we have said, unfortunate that the Tribunal did get the question of travelling expenses wrong but apart from that there are in our view quite sufficient grounds for the Industrial Tribunal to reach the decision which it did. They state in their decision that the Appellant made no approach at all to discuss the matter. What they say is this:

"...he did not between the 4 February when he was first seen and told of the respondent's requirement that he should move and the 18 February when they dismissed him for his failure to agree to make this move he did not endeavour to negotiate better terms or any change in the instruction he had been given. He could have suggested a temporary employment in Redditch or additional bonuses. He did nothing of that sort, he made no approach, he simply refused to go. This inevitably led to his dismissal by the respondent with notice on the 18 February"

In a later passage they found:

"There is no doubt that the applicant knew the consequences of refusing to do so and he had already been warned by Mr Amphlett, the administration partner of the possibility of dismissal."

In their response to the document IT 1, the Respondents set out their case which is that:

"Following a discussion about a move, Mr Amphlett wrote to the Applicant on the 7th February 1992 confirming the decision to move him to Redditch. The Applicant replied the following day saying he did not intend to move...Mr Amphlett replied two days later, suggesting that the Applicant reconsider. The Applicant replied the next day, showing no signs of doing so. On 13th February 1992, Mr Amphlett wrote to the Applicant saying that he intended to implement the change and asking the Applicant to be at the Redditch Office on the 18th February to start a tidy hand-over. On the 14th February the Applicant the Applicant wrote saying he did not intend to be there. On the morning of the 18th February, Mr Amphlett telephoned the Applicant asking him again to be at Redditch and asking him to consider his own position very seriously. The Applicant replied that he had considered his position, his mind was made up, and he did not intend to move to Redditch.

Nevertheless, Mr Amphlett closed by saying he hoped very much that the Applicant would meet him at Redditch that afternoon. He did not."

It is perfectly plain to us that the Appellant adopted an obdurate attitude. He made it absolutely clear to the Respondents that he would not move on any account. He refused the opportunity on two occasions to discuss the matter. The question of his travelling expenses was not, in our view, expressly raised at that stage and we note that it formed no express part of his application. The nearest it comes to is where he says:

"I had no proper opportunity to discuss the proposed move and my substantial personal and professional reasons for objecting to it..."

We do not accept that. He had had plenty of opportunity to discuss the proposed move but had rejected it.

The ACAS code has been understandably referred to and if this had been indeed a dismissal on the first refusal we might have had sympathy with that submission, but here there were in our view, and were shown to be, repeated and adamant refusals to move which justified the Respondent's dismissal. On a substantive refusal to attend meetings, which is what the Tribunal found, the Tribunal got it right and although, as we have acknowledged, they may have made a mistake in a finding of fact, that in our view is not sufficient to supplant the main reason for their decision.

Having heard this case as we have acknowledged, very well presented, in our view there is no sufficient case to go forward to a full hearing and therefore we dismiss this appeal.