United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 336_93_0512

Appeal No. EAT/336/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 December 1994

Before

HIS HONOUR JUDGE HULL QC

MISS C HOLROYD

MRS T MARSLAND

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MRS J DAVIDSON          APPELLANT

SUE RYDER FOUNDATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

FULL HEARING

Revised


 


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APPEARANCES

For the Appellant Mr G Alliott

(Of Counsel)

Arnison & Co

1 St Andrews Place

Penrith

CUMBRIA

CA11 7W

For the Respondents Mr D Matovu

Messrs Gaynham Smith

Solicitors

29 Boroughgate

Appleby

Cumbria


 


JUDGE HULL QC: In this case, Mrs Davidson was employed as a laundress by the Respondents, a very well known organisation, the Sue Ryder Foundation, at Temple Sowerby. She is a lady who now (if my arithmetic is correct) is in her fifties. She began work in June 1978. Now at that time, the home where she was employed was a Residential Care Home and she was employed for five days a week and did the laundry; as far as we know, giving every satisfaction, as indeed she must have, to stay on so long.

In 1991, the Home became a Nursing Home and that had a particular effect on

Mrs Davidson's work. At about that time nurses became professionally unable to do washing and cleaning, that comes into the story, but as a result of becoming a Nursing home, the burden of laundry increased; because at a Nursing home, people who were certainly not well would be taken in and furthermore the population of the Home was getting older.

This led to a situation in which, in the view of management, it was necessary to have laundry done, not five days a week, which were the days Mrs Davidson had always worked, but every day of the week. In other words, every weekend, bank holiday and so on. It was common ground that she, under her contract, could not be compelled to work more than the five day week, which she always had worked, though the exact hours might be a matter which could be the subject of change.

So the suggestion was that Mrs Davidson might be prepared to work at any rate every other weekend. That was what the management put to her. She said she would think about it. She was entirely rational and pleasant about it. Her husband is a heavy goods vehicle driver, or was at the time, and she only saw him at weekends and that meant, of course, that her weekends were in that sense more precious to her, perhaps, than they would be to a person who saw their spouse every day or every evening of the week.

After thinking about it, she said that she did not feel able to work every other weekend and every other bank holiday. So that meant that the employers were in a difficulty. Of course there were various suggestions that went through their minds. One was, that they should simply advertise for a person who was prepared to work every weekend and every bank holiday, but of course would have the ordinary working days off.

Indeed, Mrs Davidson herself, apparently, made a suggestion that she might work just four days, so that the additional person could work three days including the weekends. To that suggestion there was, however, an ethical objection, if I might call it that, an objection of conscience which occurred to the employers. They felt that with the labour market in its present state, it would not be right to put an advertisement in the newspaper or elsewhere to advertise for a person to work simply at weekends. They thought that the market was in such a sad situation from workers' point of view, that somebody might feel impelled to do this, on the face of it somewhat unwelcome, job at weekends regularly to their detriment and it would not be right to encourage somebody in the present depressed state of the labour market to do that. So that was the view of management.

Another view, which did not apparently occur to anybody, then, but it did occur to the Industrial Tribunal in due course, was that perhaps two people might be engaged to do alternate weekends and alternate bank holidays, which might possibly have removed the ethical objection.

The employers, of course, were determined they must have this work done and eventually an ultimatum was given to Mrs Davidson. The ultimatum was as follows:

"If you are not prepared to agree to do every other weekend, in the way that has been suggested, then you will have to be dismissed."

She, in those circumstances, said eventually she would rather resign than be dismissed and so eventually she did resign.

In due course, she complained to the Industrial Tribunal at Carlisle that she had been unfairly dismissed. The Industrial Tribunal duly sat on the 4th December 1992 at Carlisle under the Chairmanship of Mr Charlesworth, with two Industrial Members. They had to decide the complaint, which was on the grounds of unfair dismissal.

The Tribunal found that she had been dismissed. It was one of these `resign or be sacked' cases, and the principles are quite clear, there is no appeal against that part of their Decision, they found that she had in fact been dismissed, having resigned in circumstances where she was told she would be dismissed if she did not resign.

They then went on to consider the grounds for the dismissal. There was of course the undoubted need of the employer and the question of reorganisation, whether by keeping on

Mrs Davidson to work longer hours, or whatever it might be, or by employing other workers, or by re-arranging the work, all that had to be considered by them. They made a number of important findings of fact. They record the matters I have already mentioned. The possibility of employing someone to work every weekend and every bank holiday was discussed. She said that she would not be happy about this as the other staff might feel she was not pulling her weight, and might think it unfair that she refused to work weekends.

They go through the ultimatum which was given to her. They record that Mr Chew, the bursar, asked if she had any counter proposals to put forward. But she had none. She said that she wished to continue to work for the Respondents but she could not work at weekends. She preferred to give in her notice rather than formally be dismissed, and she gave a month's notice.

The Tribunal say:

"We find that [and this is of course, as a matter of contract] the respondent was not entitled to require the applicant to work at weekends, particularly under the terms of her contract of employment. Indeed in the correspondence and discussions the respondent never claimed that the applicant could be ordered to work alternate weekends. The respondent made it clear that the applicant would be dismissed if she did not agree to work the proposed new hours. .....and dismissal if she did not was certain."

They found that she was dismissed. As I say there is no appeal against that part of the Decision. They record that:

"It was necessary for the respondent to have the laundry done every day.."

So that is another matter which was not in dispute at all. They say as follows:

"As a result the respondent decided it could no longer employ someone who worked only weekdays."

Then a sentence, I have already said, I find the sentence very curious, we all do.

"The decision to dismiss was a substantial reason of a kind such as to justify the dismissal of an employee holding the position which that applicant held and was thus potentially a fair reason by virtue of section 57(1)(b) of the Employment Protection (Consolidation) Act 1978."

There appears to us to be an ellipsis. What was it that was a substantial reason? As

Mr Alliott rightly says, of course, they must find the reason or, if more than one, the reasons why she was dismissed, and decide which was the principal one.

There were certainly, it could be said in ordinary language, at least three candidates, and perhaps it could only rightly be said they were all reasons. First of all there was the change in circumstances which made it necessary to have laundry done seven days a week. Then there was the fact that Mrs Davidson, with her domestic circumstances, said, "No, I want to stick to my contract, I can only do work on five days, otherwise my domestic situation is impossible. For that reason I must decline the suggestion that my contractual obligation should be altered." Then, and possibly some people would say this is the decisive reason, the ethical objection. Because normally, if one wants work done two days a week, even if they are weekends, there is always, at any rate, the possibility of either an employee or a contractor doing exactly that.

Why not advertise, why not take steps to find a person or persons who will do that, whether as contractors or as employees? Answer: Because of an ethical objection which we feel, an objection of conscience. Of course, people who are entitled to have feeling of conscience about such matters. It will be noticed that two of these matters really deserve to be called matters of conscience, not only the scruples of the Foundation, but also the feelings of Mrs Davidson herself about her marriage, and her relationship with her husband. A sense of duty to one's spouse is also a matter of ethical objection.

So that was the situation. And they go on as follows:

"We next have to find whether the dismissal was fair within the meaning of section 57(3) of the Act. We do not share the respondent's view that it would be improper to look for someone willing to work every weekend and every Bank holiday. [So their ethical view is different from that of the employers] There may well be people who would prefer to do this than to work during the week."

It is probably not material to say so, but that is almost self-evident. Then the Tribunal goes on:

"Alternatively, it might have been possible to obtain 2 part time people to work alternate weekends and Public holidays. We regard this, however, as a decision within the scope of management. It is not for us to tell the respondent how it should run its business. We are satisfied that it was a decision genuinely taken after proper consideration and was not aimed in any way at the applicant. Indeed the applicant was inclined to agree with the decision. There was proper discussion and consultation over several weeks. The applicant was unable to suggest any other way of resolving the need to have laundry work carried out daily. While we have considerable sympathy with the applicant, who was a loyal employee for 14 years and lost here employment through no fault of her own, we cannot say that the dismissal was unfair."

Now the submission which is made to us, the main submission by Mr Alliott, is this that here the Tribunal have left out a vital matter. They had to consider, first of all, whether there was a substantial reason and, secondly, whether the employers acted reasonably in treating that as a sufficient reason to dismiss the employee. That is trite. It is also, of course, trite that the employers must, as the Tribunal said, be entitled to run their own business and it is not for the Tribunal to tell and certainly not for us to tell them how to run their business. But the Tribunal is most definitely charged to look at the reason and examine it.

Here, says Mr Alliott, they failed to address themselves to that, and in the very much elided and essential sentence which I have read, they seem to us not to have considered that question. What precisely was the reason? It may well be, as I have said, and certainly it appears to us, if it were for us to say so, that the reason is the threefold one which we have mentioned. Was that a substantial reason? Undoubtedly there were ethical considerations telling both ways. On the one hand, there was the very reasonable objection of conscience, by Mrs Davidson, that she wanted to see something of her husband, who was in this very exacting occupation of a heavy goods vehicle driver, and therefore not at home during the week. That was an ethical point on one side. Then, of course, there was the ethical point of the other side, which the employers had raised, and which the Industrial Tribunal itself was not inclined to share. But, as they said, the employers are entitled to form their own views about such matters.

Did it, in those circumstances, taking it altogether, amount to a substantial reason? The Industrial Tribunal does not seem to have considered those rival contentions, those conflicting matters. Indeed, it does not seem that the employers had considered that there were ethical considerations telling the other way. Then, says, Mr Alliott, these considerations really tell even more strongly when one comes to consider whether the employers have acted reasonably in treating the reason, whatever it might be, for dismissal, as being proper grounds for dismissing the employee.

Because there, of course, was a further and very important ethical element that came in. There of was a very important ethical dimension in dismissing a longstanding employee. It appears to us that the Industrial Tribunal was not merely entitled to, but bound to inquire into that matter. If I may use language which is well known in this Tribunal, "We all said, when we read this Decision, to ourselves, my goodness, this was a surprising Decision;" and when we looked to see why we were surprised, and tried to analyze it with the aid of the submissions for which we are very grateful, from counsel, we think that is precisely it, that the Industrial Tribunal did not ask themselves whether in the light of these conflicting principles, the employers had reached a correct view and whether this was, indeed, the substantial reason for dismissal which could be supported; and whether the employers had acted reasonably in treating it as a reason for terminating the employment.

We were referred, by Mr Alliott, to the case of Chubb Fire Security Ltd v Harper [1983] IRLR 311. I am simply going to refer to the headnote. That was the case in this Tribunal, where this Tribunal was really doing no more, if we may respectfully say so, than go back to the words of the statute. They were confronted with a situation in which it was suggested that the employee had acted perfectly reasonably in failing to fit in with the employer's proposals. This Tribunal said:

"It may be perfectly reasonable for an employee to decline to work extra overtime, yet from the employer's point of view, having regard to his business commitments, it may be perfectly reasonable to require the employee to work overtime.

The correct approach, in accordance with the decision of the Court of Appeal in Hollister v NFU, is for the Industrial Tribunal to make a finding as to the advantages to the employers of the proposed re-organisation and whether it was reasonable for them to implement it by terminating existing contracts and offering employees new ones. In the absence of such a finding, the Industrial Tribunal in the present case had failed to ask themselves the appropriate question: whether the employers were acting reasonably in dismissing the employee for his refusal to enter in the new contract. In answering that question the Industrial Tribunal should have considered whether the employers were acting reasonably in deciding that the advantages to them of implementing the proposed re-organisation outweighed any disadvantage which they should have contemplated the employee might suffer."

A very important summary of the way in which an Industrial Tribunal should approach the matter.

We were referred to the cases of Hollister v National Farmers Union [1979] IRLR 238, Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT, and Ellis v Brighton Co-operative Soc.Ltd. [1976] IRLR 419 EAT, by Mr Matovu, and we are very grateful.

Certainly it must be for an employer to say how he manages his business and it is for the Industrial Tribunal to review the decisions of the employer only in a limited sense. First of all it must look to see what the reason for the dismissal is, and decide that. It is far from clear to us that this Industrial Tribunal has successfully and properly carried out that task. Secondly, it must ask whether the employer has acted reasonably in treating that as a reason for the dismissal.

However one looks at it, the Industrial Tribunal is under a duty to inquire whether the employer has acted reasonably. In our view it failed to consider the conflict of ethical points which arose here, both so far as it concerned the employer and in the view of the Industrial Tribunal itself, as to whether the employer was acting reasonably.

It seems to us that the reason that we all felt unhappy about this Decision was because the Industrial Tribunal appears to have concluded that the ethical problem which the employer found was quite sufficient, without inquiry, to justify them in dismissing this employee, without at any time thinking about the ethical problem which confronted the employee herself, and the further ethical problem which arose from her dismissal. Both those were clearly important matters.

Those were for consideration, of course, first of all by the employer, which does not seem to have considered them, and then further by the Industrial Tribunal to see whether the employer was acting reasonably. We cannot say at all that we would have decided the case in an opposite sense to this Industrial Tribunal. What we do say is that we do not think this Industrial Tribunal carried out its task satisfactorily in the respect which we have tried to identify. We think, therefore, the only course which we can take is to remit this case to an Industrial Tribunal differently constituted. We say, differently constituted, because we think it would be embarrassing to this Tribunal, who might very well feel that they had or thought that they had considered certain of these matters, if they had not already expressed them fully, to re-open their considerations, and one can foresee all sorts of embarrassment if they were asked to reconsider this matter.

We think it better to start again with a Tribunal which will approach the matter anew, and which will of course hear evidence properly directed to these and any other issues which appear to it to arise. Therefore we allow the Appeal to that extent. We remit the case.