United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 749_94_0803

Appeal No. EAT/749/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 March 1996

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

DR D GRIEVES CBE

MISS A MADDOCKS OBE

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UNITED AUTOMOBILE SERVICES LTD          APPELLANTS

(1) MRS G TURNBULL

(2) MR A WILLIS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR A DENT

(Of Counsel)

Messrs Latimer Hinks

5/8 Priestgate

Darlington

Co.Durham DL1 1N1

For the Respondents MR P TRENOUTH

(Representative)


 


MR JUSTICE MUMMERY (PRESIDENT): This appeal is against the decision of the Industrial Tribunal held at Middlesbrough on 14 March and 5 April 1994. The Tribunal unanimously decided that the two Applicants, Mrs Georgina Turnbull and Mr Andrew Willis, had been unfairly dismissed. They directed that the cases should be listed for a remedies decision.

The claims were against the Respondent, United Automobile Services Limited, the former employers of the Applicants. Extended reasons for the decision were sent to the parties on 20 June 1994. United Automobile Services served a Notice of Appeal in July 1994. The case came before the Appeal Tribunal on 14 November 1994 as a Preliminary Hearing, to determine whether the appeal raised an arguable question of law. The Tribunal directed that the case should proceed to a full hearing only on one point in the Notice of Appeal, ground 6.8, and granted leave to amend the Notice of Appeal to amplify that ground. The amendment was made on 20 June 1995. An order was also made for production of extracts from the Chairman's Notes of Evidence, relevant to the ground of appeal in 6.8 and considered necessary for the purposes of determining that point.

The Notes related to the cross-examination of Mrs Turnbull and the examination in chief of Mr Willis. We have those notes. They have been referred to during the hearing. They were not, however, provided until the end of October 1995. That accounts for the delay between this appeal first coming before this Tribunal and the final hearing today.

On the hearing of the appeal, Mr Dent made helpful submissions for United Automobile Services and Mr Trenouth for the Respondents, Mrs Turnbull and Mr Willis. The background to the case is that, on 31 December 1993, Mr Willis presented an application to the Industrial Tribunal complaining of constructive unfair dismissal. He was employed by the company as a PSV driver. His employment began in 1988. His complaint was that he had been employed on a four-day rota since May 1988. He did some overtime work in addition to his ordinary hours. On 29 September 1993 he saw on a noticeboard the handwritten notice saying that from 3 October, the four-day rota would be revised. It turned out that it was not being revised, but four out of twelve drivers were being moved to a five-day rota. He was one of the four. He complained that that selection was without consultation and appeared to have been based on an allegation that the four drivers in question did not work enough overtime. He and Mrs Turnbull resigned, in the belief that they had been constructively dismissed. The other two drivers were reinstated onto the four-day rota following an enquiry into the rota change.

The case was defended by the company, who denied that there had been any dismissal. They said there had been no dismissal because the Applicants gave notice terminating the contract. They denied that the resignation was given in circumstances which entitled the employers to terminate their employment by reason of their conduct. They set out in the IT3 the grounds on which they relied. They said that they were entitled to transfer the Applicants from a four-day rota to a five-day rota under the express or implied terms of the contract of employment. They denied there was any breach of the duty to consult. It was an express term of the contract of employment, or was implied by custom and practice, that overtime would be worked upon reasonable request, and if, which was denied, there had been a breach of the contract by moving the Applicants to a five-day rota, the Applicants were not entitled to terminate the contract by reason of such conduct, because they had failed to follow the grievance procedure set out in the written particulars of employment. They accepted that the other two employees moved from the four-day to the five-day rota, were subsequently reinstated. It was not as a result of an enquiry though. It came about as a direct result of those employees having invoked the grievance procedure.

The IT1 and IT3 thus clearly identified the issue which the Tribunal had to resolve. The Tribunal heard evidence from the Applicants. They also heard evidence given by Mr Knight, Operations Director; Mr Terence Walton, District Manager; and Mr Michael Bridger, District Organiser. Mr Bridger was District Organiser of the TGWU.

The Tribunal stated the nature of the complaint. An amendment was allowed, which entitled the company to plead in the alternative that if, contrary to their main case, there was a dismissal, then it was for some other substantial reason. The Tribunal referred to a number of documents and to the nature of the arguments on each side. For the Applicants it was put as a case of constructive dismissal arising from the conduct of the company, in reaching a decision to alter the terms of employment of each employee from working on a four-day to a five-day rota. That struck at the root of the contract, which justified termination without notice on the part of each employee. There had been no individual consultation and no evidence of the matter being locally negotiated. It was argued there was an unfair dismissal. Against that, it was argued, on behalf of the company, that there was no breach of contract. What the company were seeking to do was to improve the viability of the depot and reallocate the rotas within the customary practice.

In the light of these rival contentions, the Tribunal had to make findings of fact. Having heard the witnesses give evidence and observed their demeanour, they concluded that the essential facts were not in dispute. The essential facts they found were these:

"(a) Both Applicants had been employed by the respondent company as bus drivers from 16 May 1988, initially working as spare drivers ... until placed on a permanent rota which in each case had been a 5 day rota working a 45 hour week.

(b) Subsequently each of them was asked if they wished to volunteer to transfer to a 4 day rota [they agreed to that]

(c) Both applicants worked overtime on a regular basis and although both had refused to work overtime from time to time, we were satisfied on the evidence we heard that there was no unreasonable refusal by either of them to work overtime.

(d) Mr Willis had been told by Mr Walton that he had to improve his overtime work hours put in or he may be transferred back to a 5 day rota. This had not been said at any stage to Mrs Turnbull. Mr Willis had as a result of what he had been told, ensured that he did work overtime on a regular basis.

(d) Both applicants had been issued with a statement of terms and conditions of employment... under the heading "Hours of Work" No hours were specifically set..."

The agreement stated in 2.2:

"Schedules will be compiled on a four, five or six day week basis or any combination thereof in order to provide the most cost effective rotas subject to a scheduled daily minimum guarantee of 6 hours. In general, schedules will not contain a mixture of long and short days and will be the subject of local negotiations at each location."

Neither contract contained express terms as to the working of overtime. There was no evidence of any agreement that scheduling entitled the company to move employees arbitrarily from a four-day to five-day rota. The union's district organiser gave evidence that it would be wrong to do so.

The company believed it was under pressure from competition from other bus companies and was losing mileage because of driver shortage. They therefore decided to move certain drivers from the four-day to the five-day rota, believing also that they were not working sufficient hours overtime to suit the needs and requirements of the company. Mr Walton posted a Staff Notice, saying that the four-day rota would be revised. Both Applicants were told, along with others, by means of a posting of a variation sheet to the rota, that they were being transferred from four-day to five-day rota. That variation sheet had not been used previously to change from one rota to another. The Tribunal found that Mr Willis went to see Mr Walton. He was told he was being taken off the four-day rota, because he was not working sufficient overtime. The Tribunal accepted Mr Willis's evidence that Mr Walton had told him that he should simply put his request in writing; his request was that he wanted the following Sunday off, which, under the terms of the variation sheet, he had now been placed down to work. Mr Willis did not offer, as Mr Walton suggested in his evidence, to give further consideration to the matter. Mrs Turnbull also went to see Mr Walton. She was also told that the reason for the change of rota was that she did not do overtime. She told him that he knew she did. He replied that she did not do enough. She offered, if placed back on the four-day rota, to do more overtime, but he told her it was too late.

For his part, Mr Willis attempted to speak to others in the company. He was advised that, if dissatisfied, he should go through the grievance procedure. He went to his doctor who signed him off for a week due to stress. He wrote to the employers' company with a letter of resignation. Mrs Turnbull sought to pursue the matter through the union. However, on speaking to Mr Walton, it was made clear that she was expected, in the meantime, if she went through the grievance procedure, to go on a five-day rota that was unacceptable to her.

The two other employees who were similarly transferred, went through the company's grievance procedure. That resulted in decisions in their favour, on the basis that Mr Walton honestly believed that he had the authority to remove drivers from one rota and transfer them to another at will, but no trace of an agreement to this effect could be found. So the decision to transfer them was overturned.

On those findings the Tribunal came to this conclusion in paragraph 8:

"On the above findings we were satisfied that each employee had shown that they had terminated the contract of employment in circumstances such that they were each entitled to terminate it without notice by reason of the employer's conduct, that the transference from one rota to another under these circumstances amounted to a serious amendment of the terms and conditions of employment and one which was sufficiently serious to go to the root of the contract and to amount to a fundamental breach."

The Tribunal were not satisfied that the company had made out that there was a substantial reason of a kind such as to justify the dismissal of an employee holding the position that the employees held. They held that, even if they had found that the company's reason was potentially fair, they would have found that the constructive dismissal was unfair, because there was a total absence of individual consultation with the employees and there was no evidence that the change had been negotiated on their behalf by the union. The actions of the company were not those of a reasonable employer acting reasonably.

Although it is necessary to look at all the findings of fact in all decisions, for the purposes of deciding the appeal, we focus on the particular point raised in the only ground which has been allowed to proceed. That ground is this:

"6.8 The Tribunal misdirected itself in that it ignored the significance of admissions in evidence from each Respondent [Mr Willis and Mrs Turnbull] that he or she would have worked on the 5 day rota and that his or her real grievance was the manner of its implementation which could have been cured by grievance procedures."

Added to that, by leave to amend, is this further sentence:

"It is further contended that the employees' real grievance did not amount to a fundamental breach of the contracts of employment."

Mr Dent opened his submissions by making it clear that he was not asking this Tribunal to decide that the dismissals were fair. That would have to be remitted to the Industrial Tribunal, preferably a different Tribunal. The essence of his argument was that, in finding that there was a constructive unfair dismissal, the Tribunal had ignored evidence of the Applicants themselves. This was a failure of duty on the part of the Tribunal. The Tribunal's duty is to deal with all the relevant evidence and reach a conclusion consistent with it. In this case, there were two passages in the evidence of the Applicants, which showed that they were both willing to work the new rotas of five hours, that they were simply upset by the manner of the implementation. In those circumstances, he submitted, it was a serious misdirection on the part of the Tribunal to find that the change of rotas entitled them to terminate their contracts of employment and that there was a fundamental breach of contract.

The passages in the evidence are in the cross-examination of Mrs Turnbull, on page 9 of the Chairman's Notes, where it is said in the question:

"Q Prepared to if more notice.

A No. 4 day more attractive but would have worked 5 days."

At the end of her cross-examination, she was asked:

"Q Were there other reasons you wanted to leave.

A No.

Q The way the matter was handled.

A Yes."

When cross-examined by the Tribunal, she agreed that she worked the five-day rota when she worked her notice.

The examination in chief of Mr Willis also contained a passage in the Notes, which reads as follows:

"When he [Mr Walton] said he was taking me off the 4 day rota he said I should have put it in writing I wanted the Sunday off. He'd put me down to work. I said he should have given me notice he was taking me off the 4 day rota.

I meant if he'd given me plenty of notice I would have worked his 5 day rota after I'd been to Dundee."

That refers to plans that Mr Willis had. He told Mr Walton about going to see his brother in Dundee. On page 14 of the Notes of Evidence Mr Willis said:

"I told him the problem that had gone on. He said I should go through a grievance procedure. If I put it in writing to him he would make sure it got into the right hands. I asked him if I went through the grievance procedure would I have to go down and work the 5 day rota. He said "Yes". I asked him how long the grievance procedure took. He said anything up to a month. I just left the office."

Finally, on page 15, he said:

"I believed the rota could only be changed by mutual agreement. I am not aware of any agreement which gives the company the right to change my terms of employment without consulting the union or me."

Mr Dent's point on these passages was, that both Applicants accepted in their evidence, (and this was not contradicted by any other evidence), that they would have worked the new rotas of five hours. Mr Dent asked how could the Tribunal, in those circumstances, properly come to the conclusion that the transfer from the four-hour rota to the five-hour rota amounted to such a serious matter that it went to the root of the contract, and was a fundamental breach.

In support of the contrary arguments, Mr Trenouth referred to the case of Woods v Wm Car Services (Peterborough) Ltd [1981] IRLR 347 in the Employment Appeal Tribunal and to passages in the report of the same case, in the Court of Appeal [1982] IRLR 413. He relied on the cases for the general proposition that there is no particular rule of law for determining whether a particular set of facts constitutes a repudiatory breach of contract by an employer, entitling the employee to claim constructive dismissal. Constructive dismissal was a question of fact for the Industrial Tribunal. The E.A.T. should only interfere with a decision of the Industrial Tribunal if it is shown that the Industrial Tribunal misdirected itself in law, or its decision was such that no reasonable Industrial Tribunal could reach it. It was not open to the E.A.T. to interfere with the Industrial Tribunal's decision, simply because it thought upon the facts it would not or might not, have reached the same conclusion. To do that would be a usurpation by the Appeal Tribunal of the sole function of the Tribunal of fact; namely, the Industrial Tribunal.

Further, it is a term implied into a contract of employment that employers will not, without reasonable or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Mr Trenouth took us helpfully through some features of the findings of fact in the decision which he highlighted. His submission was this: that the Tribunal heard all the parties give evidence. They relied, in their decision, not just on the fact of a requirement of transfer from one rota to another, they also relied on the circumstances of the transfer. It was not the transfer alone which struck at the root of the contract. It was the transfer considered in the range of circumstances which surrounded the unilateral change of work patterns, from four-day to five-day rotas.

He made good this submission, in our view, by reference to the careful wording of the decision in paragraph 8, where the Tribunal made it clear that they were considering all the circumstances in which the termination of the contract of employment took place. They made this clear in the second line of paragraph 8 and again in the fifth line when they said:

"... that the transference from one rota to another under these circumstances amounted to a serious amendment of the terms and conditions of employment..."

That raises the question, what are these circumstances? The circumstances highlighted by Mr Trenouth are the actions of Mr Walton, the District Manager, in using the transfer as an undeserved punishment of Mr Willis and Mrs Turnbull for not doing sufficient overtime; his demanding instant acceptance of the change, coupled with a failure, as made clear in paragraph 10, to consult the individual employees or to negotiate the matter with representatives of the employees. He submitted that it was clear that the Tribunal found that their grievance in being moved from four-day to five-day rotas, and their letters of resignation, indicated that they believed that this transfer was unfair in all those circumstances. The Tribunal were entitled to come to the conclusion that the Applicants could treat the conduct of the employer as going to the root of the contractual relations between them, as amounting to a fundamental breach.

We have reached the conclusion that Mr Trenouth is correct and that we should dismiss this appeal. Mr Dent, as indicated earlier, did raise a sufficient point on paragraph 6.8 of his grounds of appeal, as amended, to warrant a full hearing of this matter today. There is a ground of appeal, if a Tribunal reaches conclusions of fact, inconsistent with its uncontradicted evidence. He has shown that there was an element of that. There was evidence that they were prepared to work five hours. Mr Trenouth has persuaded us, by reference to the findings of fact in the decision and by referring to some of the documents, such as Mr Walton's diary, that were before the Tribunal, that, in order to decide this case, it was legitimate for the Tribunal to take into account not only the move from the four-day to the five-day rota, but also all the circumstances in which that decision was made, and the manner in which it was handled. The Tribunal were entitled to take those matters into account and, in doing so, to conclude that this was a case of unfair constructive dismissal.

We are not able, for those reasons, to find an error of law in the decision. What it comes down to is that Mr Dent seeks to persuade us that the Tribunal ought to have come to a different conclusion of fact in the light of those passages in the Notes of Evidence. We do not think that the Tribunal were in error of law or perverse in coming to the conclusion they did, notwithstanding what Mrs Turnbull and Mr Willis said in their evidence about their willingness to work the five-hour rota. For those reasons the appeal is dismissed.

Revised on 9 May 1996 - "From 8 March 1994 to 8 March 1996".