United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 311_95_2702

Appeal No. EAT/311/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27th February 1996

HIS HONOUR JUDGE P CLARK

LORD GLADWIN OF CLEE CBE JP

MISS D WHITTINGHAM

---

MR A MEDLEY          APPELLANT

J SAINSBURY PLC          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR A MEDLEY

(in Person)

For the Respondents MR C SHELDON

(of Counsel)

Mr C J T Arnold

Senior Legal Adviser

J Sainsbury Plc

Stamford House

Stamford Street

London SE1 9LL


 


JUDGE CLARK: This is an appeal by the employee, Mr Medley, against a decision of the Birmingham Industrial Tribunal (Chairman: Mr M C Delgado) sitting on 10th January 1995, that he was not unfairly dismissed by his former employers, J Sainsbury PLC. Full reasons for that decision are dated 25th January 1995.

The essential facts are set out in the Industrial Tribunal's reasons. The appellant commenced part-time employment with the respondent as a warehouseman on 7th November 1988. His original written Particulars of Terms of Employment provided for a 13¹/₂ hour week, of which five hours work was performed on both Tuesday and Friday and the remaining 3¹/₂ hours on Saturday.

In about 1990, by mutual agreement, the appellant was permitted to alter his shift pattern to avoid Saturday working.

In September 1992 the respondent decided that, due to changing trading patterns, the business needed a minimum of two warehousemen to be available on Saturdays. The appellant was asked to work on Saturdays, but he refused citing domestic reasons. He was the only night shift employee to refuse. The respondents did not press the point at that stage.

In January 1993 he was again asked to change to Saturday working, but insisted on his contractual rights. In mid-1993 the new manager, Mr Campain, found that there was an oversupply of labour and sought advice from personnel. The reply was that no real business need justifying an imposition of a change in the appellant's work pattern arose.

In April 1994, so the tribunal found, one of the five assistants left. Mr Campain decided that he would not need a replacement if the remaining four assistants worked 15 hour weeks of 3 x 5 hour days, each person working on alternate Saturdays. He discussed the proposal with the appellant who repeated his refusal to work on Saturdays and again insisted on his contractual rights. Eventually he was given 12 weeks notice of termination with effect from 16th May 1994, coupled with an offer of the new work schedule which included alternate Saturdays. He maintained his position and told the Industrial Tribunal that on Fridays his wife worked and he looked after their children; on Saturdays he was committed to a band.

The tribunal accepted the respondent's reason for dismissal, being some other substantial reason for dismissal under Section 57(1)(b) of the Employment Protection (Consolidation) Act 1978, namely the business requirements of the respondent signified a need for employees to do some Saturday work. Further, they found that the dismissal was reasonable under Section 57(3) of the Act on the basis that the appellant was adopting an unreasonable attitude. In all the circumstances they found that the appellant was not unfairly dismissed.

The appellant appears in person before us today, but his Notice of Appeal was settled by solicitors.

The first ground of appeal is that the tribunal erred in law in that an employer does not have a unilateral right to vary the terms of a contract of employment by insisting that an employee should work on a Saturday and that an employee's unwillingness or inability to comply with such a variation does not amount to some other substantial reason justifying a dismissal.

In our judgment this ground of appeal is misconceived. We do not understand the tribunal to be saying that this employer had a right to unilaterally vary the appellant's contractual work schedule. On the contrary, they speak of the appellant insisting on his contractual rights, and record the respondent's concession that there was no flexibility clause in the contract of employment. In other words, the case proceeded on the basis that the respondent had no contractual right to vary the work pattern.

The question of contractual rights may be relevant to an issue of constructive dismissal, under Section 55(2)(c) of the Act, where an employee alleges a repudiatory breach of contract which is denied by the employer. But here there was an admitted dismissal under Section 55(2)(a). Thus the question of contractual rights was not material to the real issues before the Industrial Tribunal, namely:

(a) what was the reason for dismissal, and

(b) did the employer act reasonably in treating that reason as a sufficient reason for dismissal.

Strictly, that disposes of the first ground of appeal, but we have considered whether the tribunal's approach to those two questions can be faulted in law. In our view it cannot. The factual matrix was capable of amounting to some other substantial reason. See Hollister v NFU [1979] ICR 542. The tribunal was entitled to find that the employee acted unreasonably in refusing the proposed change. See Evans v Elemeta Holdings [1982] IRLR 143. They took into account that other employees were willing to work on Saturdays. See St John of God Care Services Ltd v Brooks [1992] ICR 715. These were factors, none of them conclusive, properly taken into account in considering the overall reasonableness of the employer's decision to dismiss. We can find no fault in the Industrial Tribunal's approach. They carried out the necessary balancing exercise and reached a permissable conclusion.

The second ground of appeal is a complaint that he was presented with the respondent's bundle of documents only five minutes before the tribunal hearing was due to start. However, he did not apply for an adjournment. We cannot see how that complaint can amount to a ground for overturning the tribunal's decision.

In his oral submissions today Mr Medley has focused on the factual question as to whether his domestic commitments rendered him incapable of working on Saturdays. He told us that he was obliged to look after his two children on Saturdays. That is not what he told the tribunal, according to paragraph 9 of the reasons. Further, on 11th September 1992, in an internal memorandum from Mrs Bevington, the personnel manager, she records that the family commitments on which he then relied were untrue.

Secondly, he takes issue with the Industrial Tribunal finding that it was a warehouse assistant who left the employment in April 1994. These are factual matters which it is for the Industrial Tribunal to decide and not us. We can see no basis for concluding that the tribunal's material findings of fact were unsupported by the evidence.

In these circumstances we are unable to discern any error of law in the tribunal's approach, and this appeal must be dismissed.