United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 13_95_2111

Appeal No. EAT/13/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 November 1995

HIS HONOUR JUDGE H J BYRT QC

MR R H PHIPPS

MR P M SMITH

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MR P SHIPLEY          APPELLANT

RAMSIDE CATERING SERVICE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR R MERRITT

(Of Counsel)

Messrs Hewitt Brown-Humes & Hare

5 Market Place

Bishop Auckland

County Durham

DL14 7NW

For the Respondents MR B K HODGSON

(Solicitor)

Messrs Short Richardson & Forth

4 Mosley Street

Newcastle upon Tyne

NE1 1SR


 


JUDGE BYRT QC: This is an appeal from the decision of the Newcastle upon Tyne Industrial Tribunal made on 20 October 1994, when by a majority they found that the Applicant, now the Appellant, had been fairly dismissed.

The facts of the case are as follows: the Respondent is a company undertaking contract catering, employing some 250-300 people. The Appellant was employed by that company as a catering manager on one of their sites where they had a contract. That site was a complex involving the company Electrolux and Flymo at Newton Aycliffe. The Appellant had been there in that role since July 1989.

It appears that initially there were no problems relating to the way he discharged his managerial functions but, in 1993, there was a complaint relating to the way in which a buffet was presented for senior managers. The Industrial Tribunal did not regard that as a serious complaint, and took no account of it. In June 1994 more serious problems arose. It appears that the Appellant was aware it was a requirement of the managing director of Flymo that, when sauce was served with a dish, it had to be separately served. Unhappily, on 13 June, the sauce was served together with a fish dish by one of the staff who was under the Appellant's supervision. That incident was followed a few days later by a problem which arose whilst the Appellant was not even on duty. It appears that one of the staff of the canteen, for which the Appellant was responsible, failed to make sandwiches and the secretary of the managing director was unable to get sandwiches at short notice when she required them. It necessitated her going outside to buy them. Shortly after this, the senior personnel manager of Flymo contacted the Respondents and said that it was the intention of the managing director to terminate the catering contract because of these complaints. On 30 June, there was a high-level meeting, involving a director of the Respondents, a Mr Guyll, the area manager, a Mrs Robinson. Electrolux and Flymo were represented by their senior personnel manager and a support team.

According to the findings of fact set out in the Tribunal Reasons, the Appellant was there and had a full opportunity of putting his side of his case in the ensuing discussion of what had happened. There was another meeting the next day on 1 July in which again it was repeated that the managing director of Flymo was intent on terminating the contract. Mr Guyll, the Respondent director, made certain proposals with a view to mollifying the managing director, one of them being that the area manager Mrs Robinson herself might be replaced. Another suggestion was that perhaps some alteration in the reporting arrangements could be made, whereby the customer company reported to another director other than Mr Guyll. It turned out that the real nature of the problem was the Appellant. The senior personnel manager made plain that that was the case. As a result, Mr Guyll asked whether the customer company would continue the contract if the Appellant was removed from the site. On 4 July, some three days later, the message came back to the effect that the managing director had agreed to that proposition. In consequence, Mr Guyll was faced with the unpalatable task of telling the Appellant that he was being withdrawn from the site. That was repeated in an exchange of letters which took place on 5 July. At the same time, Mr Guyll included in the letter the offer of another alternative posting at Hartlepool, some distance from where the Appellant had at the time been working, at a substantially reduced salary, and also in a position of inferior status. The Appellant wrote back on two occasions indicating that he thought the Respondents' decision to withdraw him from the Flymo site was unfair and unreasonable and that he wished to appeal against it. In any event, it turned out that, on 11 July, the Appellant unequivocally rejected the offer of the new appointment. On 14 July the Respondents wrote him a letter, terminating his employment. It should be said that, up until that time, the Respondents had paid the Appellant his full wages.

In considering those facts, the Industrial Tribunal decided it was clear the Appellant had been dismissed. They found the reason for the dismissal to be that set out in the second half of Section 57(1)(b) of the Employment Protection Act. They further went on to consider the yardstick test of ss(3), and concluded that, in dismissing the Appellant for the reason they did, they acted reasonably in treating it as a sufficient reason for dismissing the employee. They came to the conclusion that the customer's threat to withdraw the contract was a genuine threat. They found that losing the contract was a serious matter for the Respondents in that it involved possibly two others losing their jobs as well as that of the Appellant, that the complaint made was serious and Mr Guyll's steps to secure the contract by instructing the Appellant not to return to the site, was a reasonable step to take.

They were however divided in their opinion, with the majority deciding that the Respondents' efforts to find alternative employment for the Appellant to be reasonable. It appears that the Respondents had approximately forty other contract sites at which they were providing catering. They considered the process of "swapping out", that is, exchanging the Appellant for the manager in charge of one of those forty other sites. Mr Guyll said that, after considering it, he and his fellow director decided against it because quite plainly the customer to whom the Appellant was posted in exchange for a manager that was already there, would be bound to ask why the exchange had taken place when they were happy and contented with the manager they had. This indeed would have caused an embarrassing situation.

The minority, however, took the view that the Respondents should have effected a "swapping out" and came to the conclusion that the Respondents decision not to follow it through, was unreasonable. Therein lies the reason why their decision was not unanimous. In addition to those findings, the Tribunal also found that the Appellant had not invoked the appeal procedure because, at the time when he was asking for an appeal, there had not yet been a disciplinary decision to terminate his employment. They noted that the formal written notification terminating the employment was dated 14 July, and yet the Appellant was asking for an appeal in his letter of 5 July. They said that therefore the appeal was against the Respondents' decision to remove him from the contract site at Newton Aycliffe, and not against the termination of his employment. They came to the conclusion that there was no such right of appeal for good reason and accordingly they dismissed that limb of the Appellant's argument.

Before us, the Appellant has raised three points of argument. The first point for which Mr Merritt on behalf of the Appellant has argued, is that the Appellant did invoke the grievance procedure, and that he did have a right to appeal, because a disciplinary decision had in fact been taken at the time when he was seeking an appeal. In support of this contention, he relies upon a legal analysis of the facts of the case, which, in our view, amounts to a contention, that this a case of constructive dismissal. It is said that the Respondents were in repudiatory breach in offering the Appellant the employment in Hartlepool which fundamentally was different in terms from those the Appellant had previously enjoyed. The Appellant's rejection which took place on 5 July, and again on 11 July, amounted to an acceptance of those breaches. He was thereafter entitled to regard himself as being dismissed. Accordingly, Mr Merritt says, the decision to terminate on 5 July and again on 11 July, afforded the Appellant the opportunity to invoke the grievance procedure which entitled him to an appeal. The Respondents, in answer to that, say the legal analysis upon which the right to an appeal is based, is founded upon an allegation of constructive dismissal which was never raised in the IT1 or at any stage argued before the Industrial Tribunal.

If one looks at the IT1, it makes plain that the Appellant's complaint is a straightforward one of unfair dismissal and in naming the date when that dismissal took place, unambiguously it states the date to be the 14th July. That is the basis upon which the Industrial Tribunal considered this case, and came to the conclusions they did as set out in their reasons. We have been given considerable thought to this matter. We have thought it necessary to ascertain whether the Appellant had been represented, not only in the preparation of the IT1 but also at the hearing. We considered whether there was any obligation upon the Industrial Tribunal to raise this issue as a point of law. Mr Merritt very fairly in addressing us upon this issue, directed us to the appropriate entry in Harvey on Industrial Relations and Employment Law Reference page T [1602]. That entry makes plain, in unambiguous terms, that the Appeal Tribunal approaches the matter strictly and will not countenance new points of law being raised at this level where they have not been raised before the Industrial Tribunal. In our view, this is the answer to this first ground of the Appellant's Notice of Appeal. We accept the submissions made by Mr Hodgson to the effect that this ground is not one which is open to the Appellant to take before this Tribunal.

The second ground raised by Mr Merritt is that, in considering the issue of the reasonableness of the Respondents decision to dismiss under Section 57(3), the Tribunal failed to take into account the injustice the dismissal, forced upon the Respondents by customer pressure, had caused the Appellant. He furthermore says that if the Industrial Tribunal did consider it, they never said so, and in consequence, they were in breach of the principle whereby they should set out in their reasons the grounds for their various findings.

We have been addressed about this matter by Mr Hodgson who argues that, in paragraphs 18 and 19 of the reasons, whilst the Tribunal does not expressly address this particular issue, it quite plainly did so implicitly. It did so when it noted that, before dismissing him, the Respondents had canvassed the possibility of finding the Appellant alternative employment elsewhere in their organisation. He further referred us to the decision of Martin v Glynwed Distribution Ltd [1983] ICR 511 where Sir John Donaldson, as he then was, referred to the duty which lies upon the Industrial Tribunal in drafting its reasons. I shall quote from the particular passage which appears at page 520 in the reported decision:

"Finally it was submitted that the industrial tribunal was under a duty to state the law, its primary findings of fact, its secondary findings of fact and its conclusions. This is wholly misconceived. The duty of an industrial tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation for them, but it is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the industrial tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the industrial tribunal."

We have come to the conclusion that the Industrial Tribunal did consider this question of the reasonableness of the Respondents' decision. In doing so, it also embraced the question of the injustice caused by customer pressure which led to the dismissal of the Appellant. We are satisfied that this was a fact which was in the minds of the Industrial Tribunal in coming to their decision. As Mr Hodgson himself rightly concedes, it is implicitly referred to in their decision where they recite the considerations which were in the employers' mind when deciding what to do with him once he was withdrawn from the contract site. They clearly considered the option of "swapping out" and decided, according to the majority decision, that there were good reasons for not pursuing that line. Thereafter they considered the option of the job in Hartlepool, which, according to the evidence which was accepted by the Tribunal, was the best alternative employment the Respondents could offer.

In all the circumstances, we are satisfied that the Industrial Tribunal directed themselves, at each stage, as to the correct law. We cannot find fault with the findings of fact which are reflected in their reasons. In all the circumstances we see no reason to disturb this decision. Accordingly, the appeal will be dismissed.