United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 969_94_1412

Appeal No. EAT/969/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14th December 1994

HIS HONOUR JUDGE HULL QC

MR K M HACK JP

MRS P TURNER OBE

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STRACHAN ST GEORGE          APPELLANTS

MRS M WILLIAMS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants Mr Stephen Wilson

(Of Counsel)

43-45 Kingsland High Street

LONDON E8 2JS


 


JUDGE HULL QC: This is an Appeal to us by Strachan St George, a firm of solicitors, against the Decision of the Industrial Tribunal sitting under the Chairmanship of

Mrs Calvert at London (North) on the 11th and 26th July 1994.

The case is in our list under our Practice Direction to see whether, with the assistance of Mr Wilson, who appears for the Appellants, we can discover any fairly arguable point of law, our jurisdiction being of course confined to questions of law.

Mrs Williams describes herself as a legal audio; she types, but in this specialised field of course it is a great deal more than mere typing. She was first employed by the firm's office in Dalston in November 1986. That is her date, the employers say that it was a little further back in July. She continued there until the eventual termination of her employment in February of this year.

The Solicitors have extra offices, one in particular is in Buckingham Palace Road, near Victoria. Mrs Williams worked at the Dalston office, except that occasionally she went about a mile away and did overtime; that was voluntary apparently. Throughout the time she worked therefore at Dalston as her base. Apparently she had one character trait, if I can call it that, which caused her employers some irritation and upset; she was inclined to discuss domestic difficulties, she had certain difficulties or troubles at home apparently, and she would bring those to the office and discuss them. She is said to be a somewhat emotional lady. However, in other respects she gave every satisfaction.

The gist of the case can be put very shortly. Early this year, she was asked by the Office manager at Dalston, Mr Mulrooney, a managing clerk, whether she would go for three days to work at the Victoria office, and she said that she would. He accepted that it was much further from her home, which is at Clapton Square, and quite close to the Dalston office, and he said that she could arrive later. It would be all right if she set out at her usual time from home, although that would involve, because of the extra hour or so of the journey, arriving later. Similarly, an allowance would be made in the evening. She agreed to those matters.

However, when she got to the Victoria office the managing clerk there, a Mr Coxey, did not understand that she was only there for three days, and thought that this was a permanent posting. She says that Mr Strachan, the partner at Victoria, told her exactly that. We can see what she says from her Originating Application, if one looks at that. She says:

"At the end of the first day Mr Strachan, the partner at that office told me that I was there to look after him and another gentleman on an indefinite basis. Further that I could not leave the office till 5.30. I was told that I may leave at 5 o clock because of the journey by the office manager..." [that was Mr Mulrooney].

So, in other words, there were two different things being said to her. She tried, so she said, to ring Mr Mulrooney to clear up what had happened and make it clear that it was only for three days. He was very distant, and did not wish to discuss it with her. She went in to the Dalston office the next day with her husband. There were emotional scenes, perhaps not surprisingly, given the lady's known character. She left her keys and left the office.

The employers felt, apparently, that she had terminated her employment. So far from doing what they might have done, that is to say written and said "there is a misunderstanding here, it was only for three days, and Mr Mulrooney was quite right to say that you could arrive late and leave early", and matters of that sort, "and we are sorry that Mr Strachan had not realized what the position was, we do hope that you continue with us". - Nothing like that. They say themselves, in their Notice of Appearance:

"By letter of the 11th February the Respondent made it clear to the Applicant that she would not be re-employed, and following on events arising from the Applicant's presence in the Respondent's office on that day, where the Applicant had been permanently employed, and numerous telephone calls made by the Applicant to the Respondent's offices, the Respondent indicated that further access to the Respondent's offices would be refused."

So that was the view taken after all this had happened.

We have to look therefore to see what the Industrial Tribunal made of it. It was for them to say what the facts were and what the proper view of the fact was. Their Decision, arrived at after the two days which they spent on the case, with a very experienced Chairman, starts at page 4. They mention a rather alarming situation; although she was employed by solicitors, she never received a Contract of Employment, they say. They say that earlier in 1994, on 3rd February, she was warned by letter that she must not cause disruption in a relatively small office by constantly discussing her domestic and emotional problems.

Then they say how Mr Mulrooney had asked her whether she would be prepared to go for a temporary period of three days to the office in Victoria, and she agreed with some reluctance. Mr Mulrooney then made the assurances about time. They say:

"When she arrived at the Victoria office Mr Coxey [he is the managing clerk] did not appreciate that she was only there for three days. When Mr Strachan arrived at the office Mrs Williams spoke to him and he told her he hoped she would be happy in Victoria and that she was to be there "indefinitely". Mrs Williams was to work for Mr Strachan. Mr Strachan had asked for a permanent secretary, and he was quite happy to have Mrs Williams as he knew she was a good typist. We find that there was not clear communication between Mr Mulrooney and Mr Strachan as to how long Mrs Williams was willing to go to Victoria. We further find as a fact that she was told by Mr Mulrooney that it would be for three days but that Mr Strachan told her that it would be for an indefinite period."

To be told one thing by a senior member of staff and another thing by a partner must be a disturbing experience. On the face of it, it would be for the solicitors to clear that up and make it quite clear to their employee what she was expected to do.

So they go on:

"5. On her return home on the evening of Wednesday, 9th, she endeavoured to speak to Mr Mulrooney on the telephone at his home. He was not willing to discuss the matter and told her that she must speak to him in the morning. On the morning of the 10th Mrs Williams went together with her husband to Kingsland High Street. She saw Mr Mulrooney and was in a distressed state. She moved her personal effects from her desk and took some title deeds and other personal effects from the safe [she told the Tribunal in evidence that] she was going to take them and she would be reporting to Victoria Street later that date. [But they did not accept that evidence, and so they did not accept everything that Mrs Williams told them]. At some time when she was talking to Mr Mulrooney she put the keys of both offices down on the table. [She said that] Mr Mulrooney had asked for them."

They then referred to the letter of the 11th February, which I have already referred to, making it clear:

"To avoid any doubt, let me please make it clear that your actions on Thursday morning did terminate your contract. The result is that you are no longer employed by us."

So there, without any further attempt to put any misunderstanding, if there were misunderstandings, right, the employers were saying, and it would be open to the Tribunal to find, rather glad to be saying "That is that." and "If you were in any doubt, let us set your mind at rest, you are no longer employed by us". One asks why there should be any doubt. But there it is.

Then they say in paragraph 7:

"It has been submitted on behalf of the Respondents that even if Mrs Williams had not a written contract, which she had not, then there was an implied term that she would be willing to work at any of the Respondent's offices.

It is for the Tribunal to find, if there are no express terms, what the implied terms are. That is a matter for them. Sometimes there is simply one place of employment. Often a Tribunal or a court will imply a term that to travel perhaps a mile to a different location is appropriate. Sometimes, of course, much greater distances are implied, that the employee will work in the United Kingdom, or even anywhere in the world. It is a matter for the Tribunal to decide that. They say:

"During the whole of the time that Mrs Williams worked for the Respondents, save for doing overtime at an office which was near to Kingsland High Street, she had never moved to any other office. When a contract was presented to her in 1993 in which there was a mobility clause, she refused to sign it. We find as a fact that there was no mobility clause in any oral contract made with Mrs Williams, nor was there one by implication."

So that means that she could not be required to work anywhere else, although of course she could be invited to.

"Her place of work was Kingsland High Street although she was willing to earn overtime in the evenings at Falkirk Street which was nearby. We further find that Mr St George and Mr Mulrooney had decided that because of Mrs Williams' habit of discussing her personal problems with other staff to an extent that they regarded it as a disruption in the office they decided to move her to Buckingham Palace Road. We find that she would have been expected to be there indefinitely. This was not a location that it was reasonable to expect her to go to having regard to the length of time it would take her to travel from Clapton.

The direction that she should go to Buckingham Palace Road which was intended to be an indefinite move was a unilateral variation of her contract of employment. It was a fundamental term of her contract that she was able to work in Kingsland High Street."

They found that that imposed variation entitled her to accept it as a repudiation of her contract.

"We hold that Mr St George was not sorry to see her leave........We have found that there was a fundamental breach of a term of her contract."

They find that her dismissal was unfair. They do not find it necessary to say whether she formally resigned or whether she was dismissed. The fact is that there was a breach and she was entitled to go, and she went.

Those were the findings of the Tribunal. It is now suggested to us that they erred in law. Mr Wilson, of Counsel, who appears before us for the solicitors, sets out certain of the facts and he says:

"6. The findings of the Tribunal, when viewed objectively, do not lead to the conclusion that there was a breach of contract and no reasonable tribunal could find that they do.

7. The Tribunal go on in paragraph 7 of their reasons, however, to draw an inference that Mr St. George and Mr Mulrooney had decided that because of Mrs Williams' habit of discussing her personal problems with other staff to an extent that they regarded it as a disruption in the office, they decided to move her to the Victoria Office and that she would have been expected to be there indefinitely. [and then Mr Wilson says]

(1) there is no basis upon which such an inference can be drawn from the findings set out in paragraph 4."

The answer to that, with respect, is they had heard the whole of the evidence. They had before them there, Mr Mulrooney, Mr St George, Mr Strachan and Mr Coxey, and another lady. They had the Applicant. Why should they not reach that inference about the intention of the solicitors? Why should the simply confine themselves, in drawing inferences, to the facts which they had already found in paragraph 4?

It is said that there is no evidence identified by the Tribunal in their Reasons from which such an inference could be drawn. The secret workings of the minds of

Mr St George and Mr Mulrooney are not factors which can be taken into account, when viewing objectively the behaviour of the solicitors, to see whether the same amounts to conduct clearly evincing intention no longer to be bound by the contract.

We ask ourselves, she having been, in the view of her employers, something of a nuisance, why should that inference not be drawn? Had the employers put forward a clear and circumstantial account of why she was going to the office at Victoria? Why was it for only three days? Why was it that Mr Strachan and Mr Coxey had got quite the wrong idea about that? Why had they not adduced credible and circumstantial evidence that there was no question of her irritating behaviour having anything to do with this move? Then that would have been different. The Tribunal would no doubt have dealt with the evidence. But as it was, they found that that was a proper inference to draw.

With regard to the question of mixed law and fact, they found that she was only to be employed at the Dalston office and could not lawfully be required to go elsewhere. It was not a question of whether it was reasonable to ask her to go elsewhere, it was a question of whether the true view was that the employers were insisting on her going elsewhere and that that was something which they had no right to do. The term that she was only to be employed at Dalston was one which was fundamental to the contract, and this was a breach which went to the root of the contract.

It appears to us that all these were matters which the Industrial Tribunal was fully entitled to find as facts, having heard the witnesses. It might be that a different view could very well be formed of these facts. That is not for us to say. We have not heard the witnesses. We have not gone through the documents. In the circumstances, it appears to us that the contentions which are made on behalf of the Appellants are not truly contentions of law at all. Our view, all of us, is that whatever we think about the facts, there is no point of law disclosed here. In those circumstances we cannot allow the Appeal to proceed and it must be dismissed now, rather than incurring the expense and delay involved in a Full Hearing.