United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 377_95_2603

Appeal No. EAT/377/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 March 1996

HIS HONOUR JUDGE N BUTTER QC

LORD GLADWIN OF CLEE CBE JP

MR K M HACK JP

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MR R L FARRANT          APPELLANT

THE WOODROFFE SCHOOL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR ADRIAN LYNCH

(Of Counsel)

Messrs Batten & Co

Solicitors

Fore Street Chambers

Chard

Somerset

TA20 1PT

For the Respondents MR JULIAN IRONSIDE

(Of Counsel)

Messrs Tozers

Solicitors

Broadwalk House

North Door

Southernhay West

Exeter

EX1 1UA


 


JUDGE BUTTER QC: This is an appeal by Mr Farrant in respect of a decision of an Industrial Tribunal held at Exeter on 1 December 1994 and 3 and 4 January 1995. The reasons for the decision were sent out on 24 February 1995.

The unanimous decision of the Tribunal below was that Mr Farrant's claims were dismissed, apart from one minor matter which it is unnecessary for me to deal with. The decision itself extends into some twenty-three paragraphs. A great deal of the decision involved a review as to the procedural aspects leading up to the dismissal of Mr Farrant. The Tribunal concluded that the employers had a genuine belief in the misconduct of the Applicant, that they had carried out a reasonable investigation and that their decision was within the band of responses available to a reasonable employer.

There is one substantial point to this appeal, which arises out of the Tribunal's observations in paragraph 4.3 of the decision, in which they say:

"By the written contract of employment the Applicant could be required to carry out his duties in any department of the school. In fact he worked exclusively in the physics laboratory of the Science department except for the first 9 months of his employment when he also worked in the Craft Design and Technology department."

The Applicant's claim for unfair dismissal arose out of his refusal to accept and to undergo certain specified duties in a department outside the Science department. It is clear, and we accept the argument presented to us on his behalf in relation to this, that the resolution of whether the order given by the employers was a reasonable and lawful one on terms on whether the order fell within what the Applicant could be contractually obliged to do. We have studied and re-studied the various documents relating to the contract of employment, and for reasons which will be apparent shortly, we think it unnecessary and undesirable to go through those documents in detail.

The test here should be - what was the contract of employment? If the documents are ambiguous, a useful test is to say "what would a reasonable bystander, with knowledge of the facts, have concluded that the contract was?". It is plain, and indeed is accepted by the Respondents to this appeal, that it is not possible to identify any document which shows that it was agreed that the Applicant could be required to carry out his duties in any department of the School. It is further accepted that certainly throughout the years that he was employed with the Respondents, he did carry out the great bulk of his work in the Science department.

The Industrial Tribunal spent much of its deliberations in considering the procedural matters based, so far as we can tell, upon their conclusion that it was a specific part of the contract of employment that the employers could require the Applicant to carry out his duties in any department. If he [the Applicant] was entitled to refuse to take on the duties laid out as they were subsequently, then prima facie there would be no misconduct on his part. If that is or may be right, then the Respondents to this appeal recognise the difficulties they would have in seeking to uphold the Industrial Tribunal's decision, which as I have already indicated, appears to have started off with the premise that there was a term in his contract of employment as set out in paragraph 4.3.

It is argued on behalf of the Respondents that the Tribunal reached their conclusion by inference, perhaps based upon some oral evidence given by a Headmaster, which was referred to in the course of the hearing before the Industrial Tribunal. We have considered the various arguments and we are unanimous in our conclusion that the appeal succeeds. The Industrial Tribunal appears to have erred in its judgment in making the specific finding it did at 4.3. They did not identify any specific document. They gave no reasons for the conclusion expressed in that crucial sentence. It may well be in fairness to them that this was because they became much involved in the details of the internal hearings which had taken place. In the end, we have with respect, come to the conclusion that in dealing with the matter in the way they did, they erred as a matter of law and that their decision is sufficiently flawed that it cannot stand. We reach this conclusion with a great deal of regret, having regard to the length of the hearing and no doubt the substantial costs incurred. We further regret that we are unanimously of the view that we can only deal with this matter by remitting the case to a newly constituted Tribunal. We do not consider that any other course is practicable. We do not think it right to seek to inhibit the new Tribunal by expressing a view as to the legal interpretation of the contract. That in our judgment is a matter for the new Industrial Tribunal to resolve, in the light of arguments presented to them, to the documents presented to them, and to the evidence which is adduced. In these circumstances and for these reasons, the appeal is allowed.