United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 573_93_2911

Appeal No. EAT/573/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29 November 1994

Before

HIS HONOUR JUDGE BYRT QC

MR W MORRIS

MR A D SCOTT

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MR S OSHO          APPELLANT

PIZZA HUT (UK) LIMITED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR I ADDOO

(of Counsel)

Harris & Co

Unit 5

Perronet House

St. Georges Road

Elephant & Castle

London SE1 6ME

For the Respondents MR R KENYON

(solicitor)

Messrs. Field Fisher

Waterhouse

41 Vine Street

London EC3N 2AA


 


JUDGE BYRT QC: This is an appeal from a decision promulgated on 19 January 1993 by the Industrial Tribunal sitting at London South. By that decision they dismissed the employee's claim that he had been unfairly dismissed.

The background of facts set out in the findings of the Industrial Tribunal are as follows. The Appellant had been employed by the Respondents, who own a network of pizza restaurants, as a kitchen trainer-cum-supervisor for a period of about seven years prior to the crucial date in this case. During the latter part of that employment, he had been working at their Upper Norwood branch.

It is plain, as the Tribunal stated in their facts, that the employers had no complaints to make about the Appellant's performance at work. Mr Addoo, in his argument on behalf of the Appellant, referred to the periodic reviews of Mr Osho's work and there was plenty of evidence to indicate that he had been a good worker.

The only problem which arose was that the employers found the Appellant did not do his job properly at the end of each shift when he was supposed to clean up and close down the kitchens for the night. It was his job because his shift was between 6 p.m. and 1 a.m. and so the last of the day. It appears that in April 1992 the Appellant made a complaint to his employers that he had to do his closing down tasks in the kitchen by himself. He said it was too much for him to do on his own and, accordingly, he declined further to do so.

It is a finding of the Industrial Tribunal that during the last two hours of his night shift, there was a slackening of business so that he had plenty of opportunity to clean the kitchens and there was no reason why he should not have done so. The result, of the Appellant's complaint to his employers, was that they told him they could only offer him weekend shiftwork if he was not prepared to close the kitchen down by himself. At the weekend, there is more business in the evenings and, in consequence, for the last shift, there is not just one worker working in the kitchens but two so that on those days, the Appellant would have assistance to do the cleaning. If their opportunity for employing him was limited only to weekend work, it necessarily meant that his employers could not offer him the 39 hours work per week which the terms of his contract led him to believe would normally be made available to him.

The result of that discussion was that the matter was left open as to when the Appellant could work and whether he could make alternative arrangements to enable him to work at another time.

On 26 April he attended for work and found that his name was not on the rota of the week's work. The Industrial Tribunal found that this was because of the uncertainty as to which shift the Appellant could and would be working. At that particular stage, the employers offered the Appellant a shift on the Thursday, 1 May, to clean the oven. They also offered him a shift on Saturday, 3 May and, initially, the Appellant agreed to working on those occasions. However, it transpired that, for some reason which is not apparent from the Tribunal's reasoning, he was unable or unwilling to work those shifts and, accordingly, he telephoned the employers to tell them so. Accordingly, the work he was supposed to do on those occasions was deleted from the schedule of work marked up as part of the rota. This is somewhat at variance with what Mr Addoo has been telling us today, to the effect that the Appellant worked on one of those days by agreement with his employers, when he came in to find work for himself. That difference of recollection does not seem to us to be of any significance.

At the end of the day, the question was when and how and on what shifts the Appellant would be able to come in to work for the Respondents. The Tribunal found that Ms Mortimer, the manager, of this particular branch, waited to see what days the Appellant could manage. It was at that juncture, that the Appellant told Ms Mortimer that if he could not have the hours that he wanted at the time that he wanted, he desired a transfer to another restaurant. Ms Mortimer was willing to cooperate in this respect. She made enquiries at Lewisham, Catford, Argyll Street in the London West End, and in early May, she tracked down a vacancy at Croydon North End. This she offered to the Appellant by telephone. He rejected it. There is no indication in the Tribunal's reasons why he rejected it but it appears from some of the correspondence which was before the Tribunal that it might have been because it was perhaps too far for him but, in any event, that was his explanation for turning it down.

From 10 May onwards, there was a period of time when the Appellant was at home. The Tribunal found that the Appellant and the Respondent's management were attempting to find alternative vacancies within the organization of the Respondents but, at that stage, the Appellant was not reporting for work and, accordingly, he was not being paid. On 3 June, the Appellant wrote to the Respondent asking for the reasons for his dismissal, and by letters dated 11 and 18 June, the Respondents wrote back stressing that the Appellant had not been dismissed. On 1 July the Appellant made his application to the Industrial Tribunal.

Specifically on those facts, the Tribunal found that there was no direct dismissal nor was there any constructive dismissal. The Appellant's case, as it was argued before the Tribunal, was that his omission from the rota on 26 April constituted a dismissal and the Tribunal roundly rejected that submission and stated, in their own words, that:

"that was patently not the case".

They went on to say that his name had been omitted because when he would come in to work and what he would do had not, yet, been resolved. The fact that he was not working was because the Appellant himself was refusing to work and it was up to him to cooperate in finding a resolution to the problem. They went on to say that there was no evidence then of a breach of contract, fundamental or otherwise, such as might set up a case of constructive dismissal nor, according to their findings, was there so on 10 May or during the period thereafter, when the Appellant spent time at home.

It is true, they say, that he was not being paid but that was because the Appellant himself was not fulfilling his contract. They found that the Appellant's employment came to an end on or about 3 June when the Appellant wrote his letter to the Respondents asking them for their reasons for his dismissal. They said it was quite plain that, as of that date, the Appellant regarded his employment as having come to an end. In short, the Tribunal's finding that there was no constructive dismissal is because they took the view that the Appellant had left of his own accord because he ceased to do the work that he was required to do and it was not caused by any fundamental breach by the employers.

The Tribunal then proceeded to deal with the last basis upon which the Appellant based his case. They found, and their findings are contained in a statement of two lines, that there was no breach of the implied term of trust and confidence.

The Appellant, through his advocate, Mr Addoo, has argued the case with some force and cogency and there have been set out in the grounds of appeal certain other specific points upon which he criticises the Tribunal's decision.

First of all it is said that the Tribunal failed to consider other aspects of the Respondent's conduct which might be said to constitute a fundamental breach. The grounds of appeal draw attention to the fact that, by the Appellant's contract, paragraph 4, there was a commitment by the employers that he would normally have 39 hours work per week and, furthermore, there was another paragraph 7, which empowered the employers to vary those terms, provided before there was any variation, they had been able to give the employee four weeks notice of their intention to do so. In this case, Mr Addoo says, there was no such notice. There was a variation in the terms upon which the Appellant could work; in fact, his hours were reduced to nil and he was given no advance warning that this was going to happen. Secondly, he alleges that there were no offers of alternative employment or those that were offered were not suitable and, thirdly, the Appellant alleges breaches of trust and confidence. That is spelt out in paragraphs that I will refer to in a minute. Last, it is alleged that the finding of the Tribunal was perverse.

We have considered each one of those points in turn: first of all, the question whether the Respondents' conduct amounted to a fundamental breach of paragraphs 4 and 7 of the contract, so as to entitle the Appellant to regard the contract at an end. I have already referred to the terms of those paragraphs.  The first point made by Mr Kenyon, who argued the case on behalf of the Respondents, is that this way of advancing a case of constructive dismissal did not feature as part of the Appellant's application before the Industrial Tribunal. However, Mr Kenyon goes on to say that in order to cover all the points might have occurred to the Tribunal, he did take upon himself the responsibility of raising it. In so doing, the terms of the Appellant's contract of employment were put before the Tribunal and they would have considered those terms and the implications they had on the case.

That is the way the matter was raised before the Industrial Tribunal. We do not think, in the circumstances, that it would be right now to shut out the Appellant from arguing his case of constructive dismissal in this way.

However, we reject the submission that the Tribunal did not properly consider this aspect of constructive dismissal. It is our view that the matter having been raised, the Tribunal made their finding. They found that it was the Appellant's own failure to work the usual shift, that is, between 6 o'clock in the evening and 1 o'clock in the morning, that brought about his cessation of employment with the Respondents. I have already indicated from the recital of the facts found by the Tribunal, his refusal to work that last shift was a failure to carry out what was an essential part of the duties of the worker undertaking that last shift, namely, the cleaning of the kitchen.

In argument before us Mr Kenyon has said that the employers had three alternatives at that stage. They could have straightforwardly dismissed the Appellant because he was not fulfilling one of the important functions of his employment. They could have tried to arrange an alternative shift to convenience the Appellant and, thirdly, they could have arranged a transfer to another restaurant if there was one available. The Respondents did not carry out their first option, namely to dismiss the Appellant and, undertaking the next two, were naturally matters which would take time to arrange. Neither had been resolved by the 26 April, the date stated in the originating application to the Industrial Tribunal as the date when the Appellant's employment was terminated, nor had they been resolved by 3 May, the date when, at this particular hearing, Mr Addoo submitted the Appellant's employment ceased.

We are satisfied that the Industrial Tribunal, having come to the conclusion that the cessation of the Appellant's work was due to his own decision not to carry out one of the duties he was required to perform in the last shift, this is not a case where a case of constructive dismissal can be made out because the employers failed to provide the Appellant with the 39 hours work referred to in paragraph 4 of his contract.

Mr Kenyon, on behalf of the Respondents, raised another point on the same aspect and he says that the question as to whether there has been a breach of contract and if there has been, whether it is fundamental, are essentially questions of fact and not of law and, in consequence, these are matters for the Industrial Tribunal to decide and not for the EAT to ponder upon or substitute their own views. Again, we accept that submission. There are clear findings of fact as the basis of the Industrial Tribunal's decision that there was not constructive dismissal. They expressly find that there were no breaches of contract and none which could be interpreted as fundamental.

The second point raised by the Appellant in argument before us was his contention that he was offered no suitable alternative employment and that any refusal he made was reasonable. This is a matter which does not appear to have been canvassed before the Industrial Tribunal and, in consequence, there is no finding of fact by them in relation to these matters. Mr Addoo, in arguing this case before us, does not seek to suggest that there was any evidence upon which the Industrial Tribunal should have made a finding of fact concerning either limb of this particular criticism, and, to us, that would seem to be the end of the matter.

I come to the third and last aspect: the alleged breach of the implied term of trust and confidence. There are four specific areas that Mr Addoo relies upon and they are under this particular heading to be taken to have a cumulative effect whilst none of them in themselves would have been sufficient ground to constitute a breach of contract. First, it is alleged that the Respondents told the Appellant that there was no work for him at Upper Norwood and that there was no suitable alternative employment in any other restaurant in the network. Firstly, there is no finding of fact in relation to this matter by the Industrial Tribunal. Indeed, the whole tenor of that judgment is to the contrary. We have seen the correspondence in which Ms Mortimer writes to the Appellant, saying that the Respondents were unable to offer full-time employment to the Appellant at her restaurant, but it is quite plain that she was talking in the context of her restaurant only. She wrote in this way in her letter of 11 June and on 18 June but she goes on to say that she is making efforts, of course, to find alternative employment for him. One bears in mind that in early May she had already offered, as the Tribunal found, employment at the Croydon North End restaurant but he declined that.

Secondly, it is said that he was unfairly selected for dismissal. There was no suggestion in evidence that there had been any process of selection and there was no finding by the Industrial Tribunal to that effect. On the contrary, the whole tenor of their judgment was that the Appellant himself had brought about the termination of his own employment by, in effect, resigning because he declined to carry out the duties which went together with his shift.

No adequate communication between the Appellant and Ms Mortimer, was the third ingredient under this particular heading. This matter, again, has not featured as a finding of the Industrial Tribunal because, as we suspect, the contention was never raised before them. We have seen the correspondence that took place between the parties in this case. It goes on substantially after the period of time when the Appellant lodged his originating application on 1 July. In addition, there were telephone conversations and meetings as late as September and, on that evidence, we take the view that it would have been difficult for the Industrial Tribunal to come to a conclusion that the communication between the parties had been anything other than thorough and complete.

Lastly, there is the allegation that they had failed to consult the Appellant. It is not spelt out in what respects they should have been consulting him but one of the problems arising in this case for the Appellant is that Ms Mortimer, the manager of his particular branch, was waiting upon the Appellant to come up with propositions which would enable him to be found a place in employment in her particular restaurant and that, indeed, is a finding of the Industrial Tribunal itself.

On all these grounds, the finding of the Industrial Tribunal that there had been no breach of contract by the employers was one which, in our view, was thoroughly justified on the findings of fact they made throughout their judgment in this case.

The last criticism of the Tribunal's decision is the all embracing one that the decision they came to, was one which was perverse, having regard to the facts of the case. We have considered this claim on the basis of whether there was evidence to justify the view they came to on the facts. We have also considered whether in any instance they misapplied the law to the facts as they found them. In our view, their findings were all within that broad band of reasonableness where the decisions of a reasonable Tribunald would be, and accordingly, there is no ground for holding their decision was perverse.

In all those circumstances, we feel there is no alternative other than to dismiss the appeal and, accordingly, we do so.