United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 436_93_2410

Appeal No. EAT/436/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24 October 1994

Judgment delivered on 16 November 1994

Before

THE HONOURABLE LORD COULSFIELD

MISS A MACKIE OBE

MRS T MARSLAND

---

MR MOHAMMED FARID          APPELLANT

ANGLIA REGIONAL CO-OP SOCIETY LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR S LADKHA

(Of Counsel)

Messrs Jeremy Roberts & Co

51 Park Road

Peterborough

PE1 2TH

For the Respondents MISS J C WOODWARD

(Of Counsel)

Messrs Croftons

Television House

Mount Street

Manchester


 


LORD COULSFIELD: This is an appeal against a decision of an Industrial Tribunal sitting at Bedford on 8 December 1992 and 29 and 31 March 1993, under the chairmanship of Mrs C Tribe. The appellant was employed by the respondents as a fork-lift driver from 19 September 1982 until he was summarily dismissed on 20 September 1991. He made an application to an Industrial Tribunal on the ground of unfair dismissal, and also on the ground of racial discrimination. By its decision, dated 22 April 1993, the Industrial Tribunal rejected the application on both grounds. The decision on the complaint of racial discrimination was not challenged in this appeal.

The respondents are a large organisation with approximately 30,000 employees. The appellant was employed in the dairy division and his status was that of adult worker, which, in terms of the relevant collective agreement, is defined as a person who performs general routine duties in connection with the processing and retail distribution of the dairy products. The appellant, throughout his employment, worked in the respondents' dairy in Peterborough. After an initial unsuccessful application, he was appointed as a fork-lift driver, originally in the front dock but, after a request to be moved, in the back dock. In his work at the back dock, his primary responsibility was to keep the bottling line supplied with empty bottles, but he also had other duties, which included unloading lorries, emptying pallets, emptying churns, and clearing away rubbish, as well as other tasks allocated to him. One of those duties was to notify those working in the laboratory that a lorry had arrived so that certain tests could be undertaken by the laboratory assistants.

In 1989, Mr Burgess was appointed to the post of dairy manager. According to the findings of the Industrial Tribunal, Mr Burgess was dissatisfied with the state of the dairy and its machinery, and modernisation was undertaken under his control. The respondents decided also to seek accreditation under BS5750, and a number of meetings with employees were held in order to explain the changes required for that purpose. The changes involved the reduction of overtime, but also an increase in the pay of fork-lift drivers.

Before August 1991, there was no set procedure for the disposal of products returned to the dairy. The products returned from time to time to the dairy included milk in bottles and milk in cartons. Cartons were placed in the rubbish skip, but bottled milk had to be tipped down a drain. That task was generally undertaken by any adult worker on an ad hoc basis. The appellant was one of those who was asked to, and did, perform such duties on that basis. However, once the accreditation process had been begun, it was necessary to designate an individual for disposal of product returns. It was decided that the back dock fork-lift driver should be the designated person. Both Mr Burgess and Mr Whomes, the respondents' production manager, took the view that the process of disposal would not take a great deal of time, and could be fitted in to the duties of the back dock fork-lift driver. The Industrial Tribunal say that they were informed that the production line ran for 4 to 4.5 hours per day, and that the main task of the fork-lift driver was to supply the line with crates of bottles. There were frequent breakdowns on the line, even after the introduction of new machinery, and there were also periods when there was a changeover between products, and the respondents' view was that during breakdown and changeover times it would be feasible for the back dock fork-lift driver to deal with product disposal. Once this decision had been taken, a bulletin was issued explaining the decision, and Mrs Crowson, the respondents' process control manager, explained that document to the appellant during the week commencing 1 September 1991.

However, although the appellant undertook the disposal of non-returnable products, he did not tip the milk. During the week beginning 8 September 1991, Mrs Crowson saw that the appellant was not carrying out the tipping, and reported to Mr Burgess, who called the appellant to his office and asked him why he was not doing so. The appellant replied that this was an increase in his responsibilities and an extra duty, for which he was not being paid. Mr Burgess explained that there would be no additional payment for carrying out the duty, and the appellant replied that he did not have time to perform the additional duties. There was then a lengthy discussion, during which Mr Burgess maintained that the tipping could be carried out within the appellant's normal duties. The Industrial Tribunal state that the process was not onerous in that it only required the tops of the milk bottles to be removed and the crates of milk turned upside down over the drain. On 16 September, Mr Whomes returned from holiday and saw that there was a build-up of crates of milk in the yard which had not been tipped. He made enquiry of Mrs Crowson, and then passed instructions to the appellant to tip the milk. Mr Whomes was satisfied that the appellant knew what was required of him but nevertheless, after the production line had finished and the appellant had gone home, Mr Whomes saw that milk returns had not been tipped. He then reported to Mr Burgess who, in turn, spoke to Mr Double, the respondents' personnel services controller.

As a result, a disciplinary meeting was convened, at which the appellant's trade union representative was present. The meeting lasted for a considerable time and, during it, Mr Double went through the appellant's duties in order to demonstrate that there was sufficient time for him to tip the milk, and explained that this was not an onerous task. The appellant maintained that he did not have time to perform the duty. The Industrial Tribunal findings continue:-

"He subsequently stated that this additional duty would cause him to have to race around the yard causing him to have to drive the fork lift in an unsafe manner. It was the evidence of Mr Double, Mr Burgess and Mr Whomes that Mr Farid was thereby in making this latter statement almost promising that an accident would occur. There was much dispute before us as to what Mr Farid stated with regard to the health and safety aspect of his driving the fork lift. Suffice it to say that Mr Double was sufficiently alarmed by what Mr Farid told him to record that fact in the written warning which he issued to Mr Farid. A copy of the written warning, dated the 18 September, is to be found at document 12 of R1. Furthermore, Mr Double took the decision to instruct a firm of independent consultants to come onto the site to observe and report on the safety aspects of driving the fork lift. At the conclusion of the meeting Mr Farid was told that unless he performed the duty of tipping the milk his job would be in jeopardy and he was told that the warning which he was given was to be put in writing."

The Industrial Tribunal record that there was no dispute that Mr Farid could be required to perform tipping duties, and that neither he nor his trade union representative challenged the respondents' authority to require him to do so. The Industrial Tribunal also express the view that it was apparent that, within the ambit of the duties of an adult worker, Mr Farid could be instructed to perform the tipping work.

Following the meeting on 17 September, Mr Whomes, according to his evidence, formed the view that the appellant would at least try to tip the milk. On the following day, 18 September, he saw, during the course of the morning, that Mr Farid had not tipped milk and spoke to him in the early afternoon, while he was unloading a lorry. The appellant asked him whether he wished him to stop unloading the lorry and tip the returns, and Mr Whomes said that the lorry required to be unloaded first: but he also told the appellant unequivocally that he wanted all the returns tipped before the appellant went home. By a mere coincidence, the production line suffered a breakdown on the same day, so that two and a half hours of production time was lost. Later on the afternoon of 18 September, Mr Whomes checked the position and found that the appellant had gone home but the milk had not been tipped. He then spoke to Mr Double, who advised him to suspend the appellant on full pay, in the presence of a trade union representative. Mr Whomes did so between 9.30 and 10.00am on 19 September. He also asked the appellant to return to the dairy on the following day, a Friday, and made it plain to him that he could face dismissal for failing to carry out his duties. The Industrial Tribunal say that although something was made of the suggestion that Mr Whomes had not specified which of a number of possible disciplinary charges were to be brought against the appellant, they were entirely satisfied that he knew what he was facing before the disciplinary hearing.

On 20 September, the appellant, with his trade union representative, attended a disciplinary hearing. Initially, the appellant and his representative were given a written warning which conveyed the substance of what the appellant had been told after the meeting on 17 September, and they were given time to read the letter. Later, the appellant was given an opportunity to challenge anything said in the letter, but did not do so. A further lengthy meeting took place, during which Mr Double covered the ground of the specific instruction to tip the milk and the reasons why there had been time to do so. The appellant maintained that he had not had time to tip the milk, and the Industrial Tribunal then find:-

"Mr Farid remained intransigent and despite his protestations to the contrary, we find that in response to Mr Double's statement that if Mr Farid would not agree to tip the milk he would have no option but to dismiss him, Mr Farid told Mr Double that the latter would have to sack him. At the end of the meeting Mr Farid was summarily dismissed and advised of his right of appeal."

The Industrial Tribunal go on to narrate what took place at the appeal. The appellant had wished to be represented by a solicitor but the respondents refused that request, as they were entitled to do, and he was again represented by a trade union representative. During the appeal, the appellant continued to maintain that he had insufficient time to tip the milk. At the end of the appeal proceedings, the dismissal was confirmed. The letter of dismissal stated that the employment was terminated by reason of gross misconduct, in that the appellant continued to wilfully disobey instructions, and failed to carry out a duty allocated to him.

In dealing with the grounds of the application, the Industrial Tribunal first of all say that the reason for the dismissal was one based on the appellant's conduct and, therefore, a potentially valid reason. They go on to say that they required to consider whether, in the light of equity and the substantial merits of the case, including the administrative resources of the undertaking, the respondents acted reasonably in treating that reason as a sufficient one for dismissal. The statement of reasons continues:-

"The respondents' disciplinary procedures, at page 34, document 3 R1, provide for summary dismissal for "refusal to carry out reasonable and lawful instructions" and also "gross insubordination or wilful disobedience". It was the respondents' case that Mr Farid wilfully disobeyed instructions to tip the milk. We were referred to Laws v. London Chronicle (Indicator Newspapers) Limited [1959] 2 All ER 85, CA, and it was argued on behalf of the applicant that Mr Farid's actions could not constitute wilful disobedience. We say immediately that the instruction issued by the respondents to the applicant was both lawful and reasonable. It was the applicant's case that he always maintained that he would try to carry out the orders, but did not find that he had sufficient time to do so. This, we were told could not constitute wilful disobedience. The word 'wilful' is defined in the Oxford Dictionary as "Done with deliberate intention and not as an accident; self-willed, obstinate". On our findings of fact it is clear that Mr Farid made no attempt to tip the milk and whilst we accept that he did not overtly refuse to carry out the instruction he, by his inaction, deliberately and therefore wilfully failed to tip the milk. It was amply demonstrated to us that Mr Farid had sufficient time to carry out this ancillary duty and further had that not been the case, he would have been allowed to work overtime at premium rates to complete his day's tasks had he not been able to do so in the time available to him. In those circumstances, we are satisfied that the applicant wilfully disobeyed a lawful instruction given to him. The respondents' procedures accorded with their written rules in the National Agreement and it is in our view erroneous to contend that the applicant was dismissed for a single act of disobedience for it is clear from the evidence before us that from the time that he received the instruction from Mrs Crowson until the time of his dismissal, a period of some 2 to 2.5 weeks, the applicant continuously and deliberately failed to carry out the instruction given to him. In those circumstances, we are satisfied that the respondents' actions fell within the parameters of reasonable response and it follows that we conclude his dismissal not to have been unfair."

The argument for the appellant was set out in a number of different ways but, in our view, the main thrust of it resolves into four propositions, namely:-

(1) The employers and the Industrial Tribunal failed to consider whether it was reasonable for the appellant to fail to carry out the work in view of the questions of safety which had been raised by him;

(2) The Industrial Tribunal failed to consider, and to make a finding, as to whether a reasonable employer would have suspended the appellant instead of dismissing him, pending the report of the independent consultants who had been approached with regard to the question of safety;

(3) In any event, the Industrial Tribunal were not entitled to find that there had been wilful disobedience;

(4) In any event, the Industrial Tribunal were not entitled to hold that, in the whole circumstances, it was within the band of reasonable responses for a reasonable employer to dismiss the appellant.

It is obvious that the first two of these submissions revolve round the question whether it was safe to require the appellant to carry out the work of tipping milk. As we understand the position, it was never suggested, either to us or to the Industrial Tribunal, that the operation of tipping the milk was unsafe in itself. The safety argument was that to require the appellant to tip the milk would put such pressure on his time as to make it likely that he would require to carry out his work in an unsafe manner. It was accepted that if the Industrial Tribunal had considered the position and held that there was no bona fide concern for safety on the part of the appellant, they would have been entitled to reach the conclusion which they did. It was, however, submitted that in the absence of a proper finding on the issue, the Industrial Tribunal had not been entitled to reach that conclusion. The respondents' answer to this part of the argument was to accept that the Industrial Tribunal had not made an express finding upon the safety aspect of the appellant's position; but to submit that they had rightly considered that question irrelevant to the decision to dismiss because the question of safety had only arisen incidentally at the first disciplinary meeting, and had no bearing upon the employers' decision. That was so because the dismissal followed on the appellant's failure to carry out the duty of tipping milk on 18 September, which was a day upon which, because of the breakdown of the production line, there was no question of pressure upon the appellant's time. That was, it was submitted, an indication that the question of safety was not really important to the appellant. In any event, it was submitted that the question of safety had not been raised at the subsequent disciplinary meeting, and did not at the time have the importance which was now being attached to it. In any event, it was submitted that the Industrial Tribunal findings dealt with the safety aspect of the question adequately.

The arguments summarised in the first two of the above propositions on behalf of the appellant were advanced in a number of different ways, and by reference to a number of authorities, including Polkey -v- A E Dayton Services Ltd [1988] ICR 142, UCATT -v- Brain [1981] ICR 542, and British Aircraft Corporation Ltd -v- Austin [1978] IRLR 332. We do not, however, think it necessary to examine these authorities in detail. It is, in our view, clear that an employer is required to act reasonably in dealing with an employee's complaint that the work which he is required to do cannot safely be done; and it follows, and the respondents in this case did not dispute, that if an Industrial Tribunal fails to apply its mind to a question of safety, in a case in which it is properly raised, its decision may be open to attack. In the present case, however, we are satisfied that the decision of the Industrial Tribunal has dealt adequately with the question of safety. The suggestion that the work could not be done safely put forward at the first disciplinary meeting was based entirely on the allegation that there was insufficient time to carry out the work as part of the appellant's normal duties. The respondents did say that independent consultants would be appointed to consider the safety of fork-lift truck operations, although there is no finding to indicate whether that intention was ever carried out. However that may be, the essential point is that the Industrial Tribunal have, in our view, unequivocally rejected the allegation that there was inadequate time for the appellant to carry out the work in the course of his normal duties. Given that the only reason for saying that there was an element of lack of safety was the alleged pressure of time, that seems to us to be a clear finding that the concerns raised by the appellant were without substance. The Industrial Tribunal do not expressly say that they considered and rejected the submission that the respondents should have suspended the appellant, rather than dismissing him, until an independent report on the safety of the work had been obtained. They do, however, say that it was within the range of reasonable responses for the respondents to dismiss the appellant in view of his continuous and deliberate failure to carry out instructions given to him; and, as we have said, they have unequivocally rejected the suggestion that there was insufficient time for the work. In these circumstances, we are unable to accept that the Industrial Tribunal failed to deal with any relevant and significant matter raised before it, and the first two grounds of appeal, as set out above, therefore fail.

The argument that the Industrial Tribunal were not entitled to find that there had been wilful disobedience was based on the case of Laws -v- London Chronicle supra. Reference was made to the judgment of Lord Evershed MR, in which it was said, firstly, that disobedience could only justify dismissal if it had at least the quality of wilfulness or deliberate flouting of essential contractual conditions. Lord Evershed went on to say, at p.287:-

"It is no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master and that, unless he does so, the relationship is, so to speak, struck at fundamentally."

It was submitted that, although the Industrial Tribunal had considered whether there was disobedience to a lawful and reasonable order, and whether that disobedience was wilful, they had not considered whether the disobedience was such as to strike at the root of the contract. It was submitted that, even if the disobedience was wilful, it could still be held that it did not so strike at the root of the contract. It was also submitted that it could not be held that there was wilful disobedience where an employee did not act in accordance with an order because of his concern for safety: in such a case there was perhaps wilful behaviour, but not wilful disobedience. For the respondents, the submission was that the Industrial Tribunal had properly considered all aspects of the question, and had reached a decision which was essentially a decision on a question of fact.

Insofar as the argument under this head of the appeal involves questions of safety, the answer to it has already been given, namely, that the Industrial Tribunal have considered and disposed of it. It is clear that the appellant consciously refused or failed to carry out the work. The Industrial Tribunal have not held that the appellant was not acting in good faith, but they have held that there was no basis for the concern about safety which he put forward. That being so, the Industrial Tribunal were, in our opinion, entitled to find as they have done, that there was a wilful and deliberate refusal to carry out the work which, by concession, the respondents had lawfully instructed the appellant to perform. Some suggestion was made that, because this was an ancillary part of the appellant's duties, the position was not the same as it would be if it were a more essential part of his duties. That submission, however, can have no force, except possibly in relation to any question of reasonableness, since it is conceded that the order was within the terms of the contract. It is also important to note that the Industrial Tribunal have held that there was not, in this case, a single act of disobedience on the part of the appellant but a course of disobedience persisted in over a period of two to two and a half weeks. It is true that the Industrial Tribunal do not actually use the words that the disobedience was such as to strike at the root of the contract, but the substance of their decision is, in our opinion, clear. This ground of appeal therefore also falls to be rejected.

The final matter is the question whether the Industrial Tribunal were entitled to hold that dismissal fell within the band of reasonable responses for an employer, in the whole circumstances. The Industrial Tribunal have expressly and correctly directed themselves to the proper question which has to be considered in this part of the case. It was submitted, by reference to United Distillers -v- Conlin [1992] IRLR 503, that the Industrial Tribunal had not, in substance, addressed themselves properly to the question and that, if they had examined what was involved in the question rather than just reciting the phrase which they had used, they could not have held that the decision fell within the band of reasonable responses. It was also suggested that the Industrial Tribunal had failed to take into account a number of points relevant to the question, such as the appellant's length of service and good record, and the fact that the duties over which the dispute arose were additional to his previous normal duties. The overall question of reasonableness, however, is one for the Industrial Tribunal to decide on the facts of the particular case. It is not necessary for the Industrial Tribunal to set out every single relevant circumstance in detail in their statement of reasons. In the present case, once the other principal heads of the appeal have been rejected, there is, in our view, no room for a submission that the Industrial Tribunal misdirected themselves, or were not entitled to reach the conclusion which they did reach.

We should perhaps also mention that there was some reference, in the written grounds of appeal, to an argument that the appellant had not had sufficient notice of the complaint against him, and that there was therefore procedural unfairness. That issue was, however, dealt with by the Industrial Tribunal, and the argument was not pressed before us.

In the whole circumstances, therefore, this appeal falls to be dismissed.