United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 50_94_1705

Appeal No. EAT/50/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 May 1994

THE HONOURABLE MR JUSTICE MORISON

MISS C HOLROYD

MRS T MARSLAND

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MR I MAZUMDAR          APPELLANT

JMLS LIMITED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN

PERSON


 


MR JUSTICE MORISON: An Industrial Tribunal held at Nottingham unanimously rejected Mr Mazumdar's complaint of unfair dismissal which he had made against his former employer, who was named in the Industrial Tribunal 1 Form, as JMLS Limited. The decision of the Tribunal was entered in the Register on December 7 1993. As was his right, Mr Mazumdar, whom we shall hereafter call the Appellant, appeals against that decision. He has provided the Employment Appeal Tribunal with a number of statements of his case, setting out I think quite clearly, what are his grounds of appeal.

The purpose of this preliminary hearing is to determine whether there is any arguable point of law shown in the grounds of appeal which would justify this matter going on to a full hearing. The appellate jurisdiction of this Employment Appeal Tribunal is confined by statute to dealing with points of law. It has no jurisdiction to re-hear a case or indeed to review the facts properly found by Industrial Tribunals. There is no appeal on a question of fact although a party may be able to contend that a finding of primary fact, or an inference drawn therefrom by the Tribunal, was perverse in the sense that it was not supported by any evidence.

The background facts may be summarised from the Industrial Tribunal's decision and shortly stated for the purposes of this hearing. The Appellant started work for his employers on July 2 1990 as a stock room maintenance assistant. His employment was terminated by his employers as from July 2 1993. The person named in the Industrial Tribunal 1 put in a Notice of Appearance in which they accepted that they had dismissed the Appellant from their employment; that his employment extended from, and to, the dates set out by the Appellant in his IT1. They alleged that the reason for the dismissal was misconduct, namely, that the Appellant's refused to work overtime when requested to do so, in the absence of a satisfactory explanation for his refusal.

The Appellant's case in the Industrial Tribunal, and in his Industrial Tribunal 1 originating application, was that he had obtained an oral agreement not to have to do compulsory overtime and as he says:

"Without which I would not have taken the job."

He says that he signed a contract in the standard form, and, included within this contract, was the provision for compulsory overtime. He says that the oral agreement prevailed. He says that in any event for 2½ years he had worked without being required to do overtime working. Therefore, as he put it in paragraph h) by custom and practice there was an implied term in his contract that he could not be required to work overtime and therefore it was unfair for his employers to dismiss him for refusing to work overtime when required to do so.

The Industrial Tribunal decided that there was no express agreement of the sort contended for at the interview prior to the Appellant being taken on. That is paragraph 3 of the decision:

"The applicant says that it was a condition of his employment that he would not have to do compulsory overtime."

They go to say that:

"Mr Nolan's evidence contradicts this, as does in fact the applicant's own evidence. The most that can be said is that Mr Fox, when an enquiry was made about overtime and the applicant's reluctance to work overtime, said that that should prove no problem as there were plenty of people available to do overtime. It never got to the stage of the applicant saying that he would not take the job if he was ever to be called upon to do compulsory overtime."

They observed that the gentleman concerned, that is the then departmental manager, Mr Fox, was not available because he himself had been made redundant.

The Industrial Tribunal decided that the reason why the Appellant made no point about the written contract, which he signed shortly afterwards which appeared to depart from the oral agreement which had previously been allegedly made, was that he believed that if he raised the issue regarding his contractual papers as they put it:

".... he might not have been offered the job".

In February 1993, so the Tribunal found in paragraph 5 of their decision:

"... it was necessary for all of the people in the applicant's workplace to work overtime."

The Appellant refused because of the alleged oral agreement, that is paragraph 5 of the decision, and the employers took the matter no further at that time. When there became a need for overtime work by all the relevant staff in May 1993, and I am now referring to paragraph 6 of the Industrial Tribunal's decision, he refused to work overtime. He was warned as to the consequences of what would happen if he persisted in his refusal and was ultimately dismissed.

At no stage did the Appellant give any special personal reasons for not doing overtime and I refer to paragraph 7 of the decision. As we understand it, there are three points which are made by the Appellant, although he would say that in effect there are just the two. We will deal with them as if there were three points because we would wish to deal with this matter as comprehensively as possible.

The first point, as we understand it, is that in his IT1 the Appellant specifically said:

".. that to dismiss me for "misconduct" given the Verbal Agreement I obtained at interview and 2½ years work which congruent with it was unfair."

and he did not want, as he said in that paragraph, to confuse unfair with wrongful dismissal.

As we understand it, what he is saying is that the Industrial Tribunal had no jurisdiction to deal with a complaint of wrongful dismissal but that is what they set about doing, namely, to examine the contractual aspect which he, the Appellant, had specifically invited them in his IT1 not to do.

Secondly, if it be a separate point from the first, he says that the terms and conditions which he was dismissed for breaking were not in the contract because the documents which were made available to him when he started did not include the minute in which the employers had accepted 4 hours overtime per week as a fair interpretation of what was "reasonable". Therefore, if he was dismissed for not working 4 hours overtime per week he was dismissed for a term which was never a contractual term within his contract of employment.

Thirdly, he says that there were grounds for believing that JMLS Limited were not truly his employers. He says, and complains, that he was denied a reasonable opportunity by the Industrial Tribunal to question whether the Company was simply in effect a front for Dr Deach, a Solicitor from Messrs Linnell & Co, who represented the Company at the hearing. In support of this ground he relies upon what he says is a curious paragraph in the Grounds for Resisting the Application, that is paragraph 8.3 of the IT3 which reads as follows:

"The Respondent denies that the Applicant had been given dispensation from the obligation to work overtime when required, and in particular denies that the Respondent or anyone authorised by the Respondent offered or agreed to any such dispensation."

Having regard to those words, the Appellant says, and told us this afternoon, that it leads him to believe that there was an individual, so to speak, behind the Company. He says that that must explain the reason why the Solicitor should have been referring to the Respondent in that paragraph in the way in which he did.

In the belief that those are the matters to which our attention has been drawn as constituting grounds for appeal in this case on points of law, we shall deal with each of them in turn.

First of all, it seems to us that the Industrial Tribunal were required to investigate what was the reason for the dismissal. It seems to us that it could only conclude that misconduct was the reason if it had first concluded that the Appellant was in breach of some kind of obligation. If the true position was that the employers were seeking to dismiss an employee for refusing to agree to work on new terms, the reason for the dismissal could not be misconduct but it might be a reason which would fall within the heading 'some other substantial reason'.

Therefore although the Industrial Tribunal has no power to hear claims for damages for breach of contract of employment it may, as here, inevitably have to involve itself in investigating and reaching a conclusion as to the contractual right, and obligations despite the Appellant's apparent desire, as expressed in his IT1, that they should not do so. Secondly, the question as to what amounts to reasonable overtime is purely a question of fact and degree. Here, because the employers had agreed that no more than 4 hours per week was reasonable that was the limit of the extra hours that the employees could be required to work. The fact that the Appellant did not know that the employers had agreed to that limit is neither here nor there. He was refusing, as the Tribunal have found, to work any overtime.

The issue as to whether or not 4 hours had been acknowledged to be reasonable was not, as it seems to us, an issue with which the Tribunal was concerned. Having refused to work any overtime, the Tribunal then had to ask itself the question as to whether that amounted to misconduct. We consider that the point taken by the Appellant, namely that there was some distinction between being required to work reasonable overtime and being required to work up to 4 hours overtime is, to put it bluntly, specious.

Thirdly, as to the suggestion that the Industrial Tribunal improperly failed to investigate the contention that it may be that JMLS Limited were not truly the employers, and that it was some kind of individual who was behind it, it seems to us that contention is wholly inexplicable. We simply do not understand how the paragraph which we have referred to in paragraph 8.3 of the Grounds for Resisting the Application could lead anybody to believe that in some way the Respondent was maintaining that there was some person, other than the Company, who was involved.

What paragraph 8.3 says and can only mean is that the Respondent, who has been identified as JMLS Limited, a Company which can only act through its servants or agents, denies that the Applicant had been given dispensation from the obligation to work overtime, and in particular denies that it had authorised anyone employed by it to give such dispensation. Therefore, if any dispensation had been given by anyone purporting to act on the Company's behalf, that would have been an unauthorised dispensation because no such person was authorised by the Company.

It seems to us that it is absurd to suggest that paragraph 8.3 could reasonably lead anyone to think that there was any reason to doubt that JMLS Limited were other than employers, as alleged in the IT1, and as accepted by the employers in this case in the IT3.

Accordingly, in our view the Industrial Tribunal were fully entitled to take the view that that was not an issue with which they needed to concern themselves. We agree.

Accordingly, having attempted to analyse the submissions which have been made to us both in writing and orally, we are satisfied that there is no point of law suitable for going on to a full hearing and we therefore will dismiss this appeal.