United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 417_95_0606

Appeal No. EAT/417/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6th June 1996

Before

HIS HONOUR JUDGE PETER CLARK

MR L D COWAN

MRS T A MARSLAND

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MR A REHMAN          APPELLANT

B BROOKS (NORWICH) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MISS J EADY

(of Counsel)

Messrs Michael Amy & Partners

Solicitors

27 Albemarle Street

London W1X 3FA

For the Respondents MR M J PARTRIDGE

(Solicitor)

Messrs Eversheds Daynes Hill & Perks

Solicitors

Holland Court

The Close

Norwich

NR1 4DX


 


JUDGE CLARK: This is an appeal by Mr Rehman against a unanimous decision of the London (North) Industrial Tribunal sitting at Whittington House on 2nd February 1995, dismissing his complaint of unfair dismissal against his former employers, B Brooks (Norwich) Ltd. Extended reasons for that decision are dated 9th March 1995.

Mr Partridge who appears for the respondents before us, as he did before the Industrial Tribunal, adopts a neutral position in relation to this appeal. He does not oppose it, and would agree to an order remitting the matter to the original tribunal. However, he does resist any order which will lead to a rehearing before a fresh tribunal.

As this Appeal Tribunal made clear in J Sainsbury Plc v Moger [1994] ICR 800 we will not reverse a reasoned decision of an Industrial Tribunal merely because the parties consent to such an order. Similar principles apply to unopposed appeals. We have therefore considered the matter on its merits.

This was a contract dispute between a long serving employee and comparatively new management which had come in following the transfer of the business in which the appellant worked from Dalgety PLC in 1991.

Matters came to a head when the employer issued Mr Rehman with new proposed terms and conditions of employment on 10th March 1994. He declined to accept those, or any other terms offered by the respondent which differed from those originally agreed with Dalgety PLC and contained in a statement of terms and conditions of employment dated March 1991. Finally, the respondent wrote to the appellant on 16th June 1994, stating that he had terminated his employment by not working under the new terms imposed by the company some three months earlier.

The concept of self-dismissal, to be found in such cases as Saunders v Ernest A Neale Ltd [1974] ICR 565, was finally laid to rest in London Transport Executive v Clarke [1981] ICR 355. In any event, it cannot be said that an employee who insists on working to his original contractual terms has terminated his own employment by refusing to work different terms imposed on him by his employer.

Recognising the reality of the position, the Notice of Appearance filed by experienced solicitors for the respondents admitted the dismissal, but disputed the reason contended for by the appellant in his form IT1, namely redundancy, and gave as the reason for dismissal some other substantial reason, namely substantial business reasons, for altering the terms of the contract. Alternatively, it was submitted that if a redundancy situation existed, the appellant was not entitled to a redundancy payment as he had unreasonably refused suitable alternative employment.

The tribunal set out the rival contentions of the parties in paragraph 1 of their reasons, recording there that the fact of dismissal was not in dispute.

Having set out the facts as they found them, the tribunal then say this at paragraph 19.

"... The question we have to decide is whether this alteration constituted such a major change as to constitute constructive dismissal allowing the Applicant to refuse to work."

They go on to answer that question in this way:

"20 We do have in mind the current economic conditions. This is a company which at the time of the take-over was suffering from sever difficulties. The workforce had been reduced drastically. The work had been reduced by some 75 per cent and, in our judgment, it was not unreasonable to ask Mr Rehman to exercise a modest degree of flexibility. He had not totally lost the services of Mr Kenton Brown, it was simply a reorganisation. He was not expected to do the dirty jobs and he had been given an assurance that he would not have to handle pork.

21 In those circumstances we consider that this was an insufficient change, if change it were at all, to constitute constructive dismissal. His refusal to carry on the job under that minor amendment envisaged was sufficient grounds for the Respondents to dismiss him. It was not a sudden matter. There had been long negotiations over many months and we consider the Respondents acted reasonably, it was the Applicant who was being unreasonable, and therefore we dismiss his case today."

There are a number of difficulties with that approach. First, the question was not whether the appellant was constructively dismissed under Section 55(2)(c) of the Employment Protection (Consolidation) Act 1978. The respondent had, properly, in our judgment, admitted dismissal under Section 55(2)(a) of the Act. The question of constructive dismissal was never raised during the hearing, so Mr Partridge tells us. Secondly, given that there was a dismissal, the tribunal does not make a specific finding as to the reason for dismissal. Was it redundancy or was it some other substantial reason? Thirdly, it is not clear whether the tribunal dismissed the complaint on the basis that there was no dismissal, or that there was a dismissal which was fair, or on both grounds in the alternative. Fourthly, it is not clear how the tribunal in these circumstances approached the question of reasonableness under Section 57(3) of the Act.

In our judgment this tribunal adopted a flawed approach to the issues raised in this case and the decision cannot stand. We shall allow the appeal and set aside the tribunal's decision.

The final question for us is what consequential order should we make?

Having heard submissions on both sides we have to balance two conflicting factors. On the appellant's side there is a real risk that if the matter is remitted to the same tribunal, and that tribunal reached the same conclusion having applied the correct reasoning, the appellant may be left with an understandable sense of grievance. We are not suggesting that this tribunal would approach the matter other than impartially, but justice must not only be done but manifestly be seen to be done. On the other hand, if this case is remitted to a fresh tribunal the respondent, through no fault of its own, will be put to further expense, both in terms of legal costs and management time.

Weighing up the rival contentions, we have come to the conclusion that the interests of justice require that the case be remitted to a fresh Industrial Tribunal for rehearing. Accordingly, we shall allow the appeal and order remission to a fresh tribunal.