United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A LYNCH (of Counsel) Messrs Battens Solicitors 23 Market Street Crewkerne Somerset TA18 7JU
For the Respondents	PROFESSOR R LEWIS (of Counsel) Messrs Tozers Solicitors Broadwalk House Southernhay West Exeter Devon EX1 1HA


 


JUDGE PETER CLARK: On 23rd September 1994 the applicant, Mr Farrant, presented an Originating Application to the Central Office of Industrial Tribunals complaining, inter alia, of unfair dismissal by his former employer, the respondent School.

The matter came on for hearing before an Industrial Tribunal sitting at Exeter under the Chairmanship of Mr A D Puthick in December 1994 ["the first tribunal"]. That tribunal dismissed his complaint of unfair dismissal for the reasons promulgated on 24th February 1995.

Against that decision the appellant appealed to the Employment Appeal Tribunal. On 26th March 1996 a division of this tribunal, presided over by Judge Neil Butter QC allowed the appeal and remitted the matter to a fresh Industrial Tribunal for a rehearing de novo.

That hearing took place before a second Industrial Tribunal sitting at Exeter under the Chairmanship of Mr C G Toomer in June 1996 ["the second tribunal"]. By a reserved decision with extended reasons promulgated on 15th August 1996 that tribunal also dismissed his complaint. It is the appellant's further appeal against that decision which is now before us. References to "the tribunal" in this judgment are to the second tribunal.

The facts

At the relevant time the respondent was a grant maintained school in Lyme Regis with approximately 850 pupils. It had a teaching staff of 50 headed by Mr Kerrigan Redman. In addition there were some 12 ancillary staff of whom the appellant was one. On 16th July 1987 the appellant applied for the post of Laboratory/Workshop Assistant which had been advertised by the respondent in the press. The advertisement read:

"Required for September:

Technician to join a team of three whose responsibilities will be shared between the Science Department, Technology and Craft."

His application was successful, and by letter dated 16th September 1987 from Dorset County Council, then responsible for the School, he was formally appointed to the post of Laboratory/Workshop Assistant (later technician) with effect from 1st September 1987 on terms set out in a written Statement of Particulars of Terms and Conditions of Employment enclosed with that letter. In addition, the tribunal found, the appellant was also sent a job description which began:

"1. DUTIES

The Assistant will spend the majority of the time in the laboratories but some time will be used to help service the Craft Design and Technology area."

His principal duties are then set out. These were followed by this note:

"N.B. The purpose of this Job Description is to indicate the general level of responsibility of the post. In accordance with paragraph 80(d) of the National Conditions of Service it is pointed out that the detailed duties may vary from time to time without changing their general character or the level of responsibility entailed."

Paragraph 80(d) of the National Conditions of Service provided:

"(d) The particular duties and responsibilities attached to posts are of necessity in many cases somewhat difficult of detailed definition, and may vary from time to time without changing the general character of the duties or the level of responsibility entailed. Such variations are a common occurrence and cannot of themselves justify reconsideration of the grading. In cases, however, where there has been a substantial change in the duties and responsibilities of the post going beyond variations of the kind referred to, then if the grading is not altered or the officer concerned is dissatisfied with the decision as to the grading taken by the employing authority he has a right of appeal to the Provincial Council under this paragraph."

The tribunal found that initially the appellant spent some time in the CDT Department but within a year these duties had withered away. Thereafter his role in the School altered and evolved by consent. He moved from part-time to full-time work; he became contingent commander of the School's Combined Cadet Force and also took on duties relating to the inspection and maintenance of fire appliances and certain key-holder functions. Various re-grading exercises took place and changes were made, by consent, to his hours and level of pay.

By November 1993 the respondent had achieved grant-maintained status. Mr Redman had recently been appointed head. There were three technicians in the science faculty; the appellant, Mrs Watts and Mr Badman. The CDT department had only one part-time technician, who worked eight hours per week.

During Autumn 1993 Mr Redman reviewed the staffing levels and concluded that the arrangements for technicians support were unsatisfactory. In particular, the CDT Department was understaffed in this area. He approached the School's governing body for permission to recruit further technical support, but was refused due to severe financial constraints.

In these circumstances he decided that it was necessary to reallocate his existing resources and at a meeting held on 8th November 1993 obtained the support of the curriculum and staffing committee ["CSC"] for such a course. The plan was that the science department would retain the services of two full-time technicians, including the senior technician, Mrs Watts, and the third technician would transfer out of the science department and divide his time between the CDT Department and other departments which might need technical support, under the line management of the bursar, Mr Rickard. It was clear to the tribunal, from the minutes of the 8th November 1993 meeting, that it was to be the appellant who was to fulfil that latter role.

These intentions were explained to the three technicians by Mr Redman. Mrs Watts and Mr Badman were content. The appellant was not. He made it plain that he did not wish to leave the Science Department.

At a CSC meeting held on 6th December 1993 the bursar reported that advice had been taken from Lincoln Personnel Services to the effect that the School was within its rights to re-negotiate the appellant's contract, bearing in mind the fact that when he was first employed he was attached to the Design Faculty. They also warned the School to be extremely careful not to move into a constructive dismissal situation and questioned the advisability of issuing the appellant with a job description at that stage.

At this point in the meeting Mr Redman pointed out that the appellant was a loyal and hard working member of staff and every effort should be made to seek an amicable solution to the current difficult situation which was causing the appellant great distress.

The tribunal accepted that the respondent valued the appellant highly; equally, that the CSC regarded the change as necessary, and the appellant as the obvious person to take over the duties in the CDT Department.

What followed is set out in detail in the tribunal's findings. It may be summarised as follows. The recognised trade union, UNISON was involved. The appellant maintained his refusal to move to the CDT Department. The union took the view that what was proposed was a material change to the appellant's contract. A new job description was issued to the appellant in December 1993, providing for 50% of his time to be spent on Technology and Information Technology and 50% on Health and Safety, Fire Precautions, Audio Visual Aids and support for other Faculties/Departments.

On 7th June 1994 Mr Redman met with the appellant and warned him that if he refused to accept his new job description that would constitute gross misconduct and he would be suspended on full pay pending a meeting of the governor's staff committee.

By this stage the respondent was in receipt of advice from the Dorset County Council personnel department.

On 13th June 1994 Mr Redman and the appellant met again. On that occasion Mr Redman told the appellant that a refusal to accept the move amounted to gross misconduct. By letter of that date the appellant was suspended on full pay pending a meeting of the governor's staff committee.

That committee met on 5th July 1994. Mr Redman explained that the advice he had received from Dorset County Council was that the appellant's refusal to work in the CDT Department amounted to a refusal to undertake a reasonable instruction and was gross misconduct because what was being required was a change in duties and not a change to the appellant's contract. The appellant addressed the meeting. He expressed strong objection to working in the CDT Department and being moved out of the Science Department.

The governors took advice from Mr Duff, a personnel officer with Dorset County Council, that the new job description fell within the scope of work the appellant could be required to do under his contract. They were satisfied that there was a need to reorganise the technician support duties and the appellant was the logical person to carry out the new role. They concluded that in these circumstances the appellant was failing to obey a reasonable and lawful instruction given to him by his employer and that amounted to gross misconduct.

They were not happy with the position. This was not what was usually understood to be gross misconduct. In the event they determined to dismiss the appellant on one month's notice. They hoped that he would reconsider his position, in which case the notice would be withdrawn.

The tribunal found that that meeting was properly conducted by the respondent.

The appellant exercised his right of appeal to the appeal committee consisting of five governors chaired by Mrs Hoskins. That committee sat on 25th July 1994. It was concerned to avoid a dismissal and adjourned the hearing with a view to allowing the appellant and Mr Redman a further opportunity to negotiate over the job description.

Unhappily no compromise proved possible and the appeal committee reconvened on 29th July. It concluded, based on the advice received, that the appellant was contractually bound to carry out the duties in the new job description and that his refusal to comply amounted to gross misconduct. The dismissal was upheld.

However, it was further made clear to him that if he was prepared to accept the new job description, the notice, not yet expired, would be withdrawn. He would not do so, and the notice took effect.

The Tribunal proceedings

The first tribunal held, inter alia, that under the terms of his written contract of employment the appellant could be required to carry out his duties in any department of the School.

Having set out their findings of fact, that tribunal concluded that the respondent had acted reasonably throughout; it had a genuine belief in the misconduct of the appellant, based on reasonable facts after a reasonable investigation. The penalty of dismissal fell within the band of reasonable responses. The complaint of unfair dismissal failed.

On appeal to this tribunal the argument focused on the first tribunal's finding as to the scope of the appellant's contractual obligations. The appeal tribunal thought the test was - what was the contract of employment? It went on to find that the first tribunal had erred in its specific finding as to the scope of the appellant's contractual duties. Accordingly, the appeal was allowed and the matter remitted for rehearing. This tribunal deliberately refrained from expressing a view as to the correct construction of the contract.

We turn now to the reasoning of the second tribunal whose decision is under appeal.

As to the contractual issue, the tribunal found that the relevant terms were contained in the letter of appointment; the Statement of Terms and Conditions and the job description sent under cover of the respondent's letter dated 16th September 1987.

It found, in paragraph 41 of the reasons, that although the appellant could be required to work in the CDT Department under his contract it was the intention that he would spend the majority of his time in the laboratory. To remove him from laboratory work altogether went beyond what the respondent was strictly entitled to require under the terms of the contract.

It would be convenient to deal at this stage with a point raised by Mr Lynch on behalf of the appellant in this appeal. He contends that the tribunal erred in referring to the parties' intention in paragraph 41; they were concerned with the contract. We reject that submission. A contract reflects the parties' intentions and agreements. That was what the tribunal made its findings on. Further, we should record that Mr Lewis did not pursue his cross-appeal against the tribunals finding that the respondent was in breach of contract. We shall therefore proceed on the basis of the tribunal's finding as to the correct construction of the contract and the fact that, contrary to the advice received by the respondent, it was in breach by requiring the appellant to cease to do science laboratory work.

The tribunal found that the reason for dismissal related to the appellant's conduct. The respondent had a genuine, if mistaken belief that the appellant was guilty of gross misconduct in refusing to work to the new job description.

As to the reasonableness of the respondent's decision to dismiss the appellant the tribunal directed themselves as follows. Having reached the conclusion which they did on the contractual issue, the tribunal reminded themselves of cases such as London Borough of Redbridge v Fishman [1978] IRLR 71 and Brandon and Goold v Murphy Bros. [1983] IRLR 54, and that in a claim of unfair dismissal the overriding test is the statutory test laid down in s.57 of the Employment Protection (Consolidation) Act 1978 (now s.98 of the Employment Rights Act 1996). They found that it had not been unreasonable of the respondent to rely upon the advice which it received as to the lawfulness of the instruction to work to the new job description, without seeking further advice from a solicitor. Applying the approach set out in the two cases cited and the well-known test contained in British Home Stores v Burchell [1980] ICR 303 (Note), they expressed their conclusions as to the question of reasonableness raised by s.98(4) of the ERA in paragraph 44 of the reasons thus:

"44 Although we had considerable sympathy for the applicant's point of view, we were nonetheless satisfied that the dismissal was reasonable. It was quite clear that the respondent required these tasks to be done and could not afford to recruit someone else to do them. The applicant was the only one of the three ancillary staff who could be required under his contract to work in the CDT department and he was already responsible for a number of the tasks outside the laboratory which could most conveniently be combined with the CDT work; he was therefore the obvious person to undertake that range of duties. He had received ample warning of the respondent's intention and had had ample time to discuss his concerns with the respondent, which had specifically invited him to identify any training needs which he might have. Although the tasks to be required of him under the new job description were more demanding as they involved different and more sophisticated equipment than that to which he had necessarily become accustomed, he was being invited to carry out broadly the same sort of work and was not being required to carry it out without either support or training if he needed it. In those circumstances, it was not unreasonable in our view that the respondent should decline to make concessions in what it required the applicant to do, given its willingness to negotiate over the implementation of the tasks and its willingness to monitor the way in which the job description worked out in practice. Even after the decision to dismiss was communicated to the applicant, the respondent gave the applicant every opportunity to avoid that dismissal by changing his mind and accepting the "what" of the job description, in which case it was prepared to negotiate the "how" and the "when". Given on the one hand the respondent's compelling need to reorganise its support staff in this way, and the applicant's sturdy refusal to accept that state of affairs, we were unanimously satisfied that notwithstanding its erroneous construction of the strict terms of the contract of employment, the respondent's actions in dismissing the applicant fell within the band of reasonable responses available to an employer in this situation, and that it was fair."

The present appeal

Mr Lynch's principal submission is that given the tribunal's finding as to the true contractual position, the appellant's refusal to obey an unlawful instruction cannot be seen as gross misconduct and that dismissal for that reason must be unfair. Further, he submits that the Burchell test fits well where the tribunal's enquiry is directed to factual beliefs of the employer, e.g., as to the employee's dishonesty, but is not an appropriate test where the question is one of construction of the contract where there is a right or wrong answer in law.

He contended that there was no decided case where an employer's mistaken belief as to the true construction of the contract was held to be reasonable in the context of s.98(4). To so find, as the tribunal did in paragraph 42 of the reasons, amounted to an error of law.

He sought to distinguish the case of Brandon on the basis that there the employer knowingly gave an instruction in breach of contract to the employees to work on a day which was designated a holiday under a collective agreement incorporated into the individual contracts of employment. The Employment Appeal Tribunal upheld an Industrial Tribunal finding that the dismissal was fair, citing the case of Ladbroke Racing Ltd v Arnott [1983] IRLR 154 (C.S.), where it was held that an employer had not acted reasonably in dismissing an employee although the dismissal was justified under the strict terms of the contract; the obverse of the position contractually in Brandon.

In support of the proposition advanced, Mr Lynch took us to four reported cases. The first two were decisions of Industrial Tribunals, BM Kemp v Robin Knitwear [1974] IRLR 69 and Graham v Anthony Todd (Haulage) Ltd [1975] IRLR 45. In both cases the Industrial Tribunal found that dismissal for an employee's refusal to obey an instruction which fell outside the scope of the contract of employment was unfair. Whilst of interest, neither case is of binding, or even persuasive authority so far as this appeal tribunal is concerned.

The next case is a decision of the Employment Appeal Tribunal presided over by Bristow J, Simmonds v Dowty Seals Ltd [1978] IRLR 211. Mr Scouller was also a member of that tribunal. The issue in Simmonds revolved principally around the question of constructive dismissal. The employee quit the employment rather than obey a management instruction which the Employment Appeal Tribunal found to be outside the scope of the contract of employment. The Industrial Tribunal dismissed his complaint on the grounds that the employer was contractually entitled to give the instruction. Having reversed the Industrial Tribunal's conclusion that the employee was not constructively dismissed, the Employment Appeal Tribunal went on to deal with the question of fairness shortly in paragraph 24 of the judgment, where Bristow J said:

"Accordingly we allow the appeal. Since Mr Simmonds's employment was determined because the company required him to do something which turns out to have been outside the terms of his contract under threat of disciplinary action if he would not, he was unfairly dismissed, and the question of redundancy does not arise."

We shall return to that finding later in this judgment.

The last case in the sequence relied upon by Mr Lynch is the Court of Appeal decision in Pedersen v Camden London Borough Council [1981] ICR 674 (Note). Having considered the judgments in that case we conclude that it was concerned only with the issue of constructive dismissal. No alternative case on the basis that if there was a dismissal it was for a potentially fair reason and was fair appears to have been advanced on behalf of the employer.

We should say at the outset that we reject Mr Lynch's submission. In our judgment the tribunal adopted a correct approach to the question of reasonableness in this case. In order to explain our reasons for reaching that conclusion it is necessary to examine the significance of the contract of employment in a number of different circumstances.

Gross misconduct

The expression "gross misconduct" is steeped in industrial history. Many employers set out, in written disciplinary procedures, examples of behaviour which amount to gross misconduct capable of leading to summary dismissal. Such examples often include theft from the employer, fighting, drunkenness and so forth.

As a matter of law the significance of gross misconduct pre-dates the unfair dismissal legislation commencing with the Industrial Relations Act 1971. It was shorthand for behaviour which would normally justify summary dismissal at common law. In an action by the employee for damages for wrongful dismissal, until very recently (see Malik v BCCI SA [1997] IRLR 462) limited to the net value of contractual pay in lieu of notice, it was and is a defence for the employer to show that the employee was guilty of gross misconduct amounting to a repudiatory breach of contract entitling the employer to treat himself as discharged from further performance; hence the summary dismissal.

A useful example of the courts' approach, in the present context, is to be found in Laws v London Chronicle Ltd [1959] 2AER 285. There, the plaintiff was summarily dismissed for disobedience in refusing to obey an instruction to remain in the room following an embarrassing interview between her immediate superior and the Managing Director. She followed her superior out of the room at his request, contrary to the Managing Director's instruction to remain.

The Court of Appeal upheld her claim for wrongful dismissal on the grounds that her single act of disobedience was not sufficient to amount to a repudiatory breach of contract on her behalf.

Giving the leading judgment of the Court, Lord Evershed MR summarised the relevant principles, having reviewed the earlier cases, in this way at p287 E-F:

"To my mind, the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master and that, unless he does so, the relationship is, so to speak, struck at fundamentally."

From that analysis its is plain to see how refusal to obey a lawful and reasonable instruction may be regarded as gross misconduct entitling the employer to summarily dismiss the employee. Since wrongful dismissal is a purely contractual concept, the need for the instruction to be lawful, that is, falling within the scope of the contract, is a pre-requisite for a permissible summary dismissal at common law.

Further, the instruction must be reasonable. Even if it falls within the strict terms of the contract, refusal to obey an unreasonable order may not amount to grounds for summary dismissal.

It is against that historical common law background that the concept of gross misconduct comes to be viewed in the context of unfair dismissal.

We begin by setting out the relevant provisions of s.98 of the ERA:

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-

(a) he reason (or, if more than one, the principal reason) for the dismissal, and

(b) hat it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it-

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(c) is that the employee was redundant, or

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty of restriction imposed by or under an enactment.

...

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

The question is, when and in what circumstances is the contract of employment determinative or otherwise relevant to the matters raised by s.98? What it is significance?

Dismissal

It is now well-settled, since Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, that the question as to whether an employee has been constructively dismissed under s.98(1)(c) of the ERA is a purely contractual one. Was the employer in repudiatory breach of contract entitling the employee to treat himself as discharged from further performance? There are, of course, other questions raised in a constructive dismissal case, and these are addressed by the Court of Appeal in Pedersen and the Employment Appeal Tribunal in its principal finding in Simmonds. It follows that in relation to questions of constructive dismissal, as in cases of wrongful dismissal at common law, the terms of the contract and breach of those terms is of the utmost importance.

Conduct dismissals

The expression "gross misconduct" does not appear in s.98. It will often be that a dismissal for gross misconduct, such as fighting or theft, is fair. However that generalisation blurs the true statutory analysis.

The first question is whether the reason for dismissal relates to the conduct of the employee. A genuine, even if mistaken, belief on the part of the employer as to the conduct of the employee relied upon will be sufficient to discharge the burden of establishing this potentially fair reason for dismissal. Trust House Forte Leisure Ltd v Aquilar [1976] IRLR 251. Maintenance Co Ltd v Dormer [1982] IRLR 491.

In the instant case Mr Lynch does not seek to challenge the tribunal's finding that the reason for dismissal here related to the appellant's conduct.

The position in cases involving conduct, capability or some other substantial reason under s.98 may be contrasted with those where the reason relied upon is redundancy, s.98(2)(c), or breach of a statutory duty or restriction, s.98(2)(d). In the latter two instances it will be for the employer to show that the reason was in fact redundancy within the meaning of the Act, or an actual rather than perceived breach of a statutory duty or restriction. Bouchaala v Trust House Forte Hotels Ltd [1980] ICR 721, 725 E-H, 726 G, per Waterhouse J.

Reasonableness

Once the employer has established conduct as the reason for dismissal, the final stage of the enquiry for the Industrial Tribunal is that laid down in s.98(4). Did the employer act reasonably or unreasonably in treating the conduct in question as a sufficient reason for dismissal, in accordance with equity and the substantial merits of the case? The burden of proof is 'neutral'. Boys and Girl Welfare Society v McDonald [1996] IRLR 129. Although, as the Court of Session pointed out in Scottish Daily Record (1986) Ltd v Laird [1996] IRLR 665, the employer must lead some evidence which goes to the three questions posed by Arnold J in Burchell at p.304 D.

In our judgment, where the conduct relied upon by the employer is the employee's refusal to obey an instruction, the question as to whether that instruction is lawful, a critical question in a claim of wrongful dismissal, is a relevant but not decisive question when considering the reasonableness of the dismissal under s.98(4) in a case of unfair dismissal.

We think that that proposition is amply demonstrated in the cases, many of which are conveniently referred to in Harvey on Industrial Relations and Employment Law, Volume 1, paragraphs B1357-1394. Reference has earlier been made to the case of Brandon. In Fishman, also considered by the tribunal, the employee was a teacher. The employer required her to alter her duties in circumstances which fell outside the scope of her contract of employment. The Industrial Tribunal found that her dismissal for refusing to accept the change of duties was unfair. That decision was upheld by this appeal tribunal. However, in the course of his judgment, Phillips J said this at paragraph 15:

"In truth, we think that the Industrial Tribunal perhaps paid too much attention to the contractual position. The jurisdiction based on para. 6(8) of the First Schedule of the Trade Union and Labour Relations Act, 1974, [now s.98(4) of the ERA] has not got much to do with contractual rights and duties. Many dismissals are unfair although the employer is contractually entitled to dismiss the employee. Contrariwise, some dismissals are not unfair although the employer was not contractually entitled to dismiss the employee. Although the contractual rights and duties are not irrelevant to the question posed by para. 6(8), they are not of the first importance."

We do not think that we could improve on that analysis of the significance of the contractual position in cases such as this.

Mr Lynch submits that the instant case is unique in that the respondent took a mistaken view of its contractual right to require the appellant to work to the new job description. In fact, we think that Fishman was such a case on its facts. However, we would not, as a matter of principle, draw a distinction between the deliberate contract breaker (see Brandon) and the inadvertent contract breaker, as in this case. It would be absurd to characterise dismissal in the latter case as necessarily unfair, but not in the former case. In any event, we think that the proposition advanced by Mr Lynch is fundamentally flawed. The fact that the question of whether or not the relevant instruction fell within the scope of the contract is capable of only one correct answer as a matter of contract law should not be allowed to obscure the statutory question of reasonableness raised by s.98(4). If the employer's instruction is in fact unlawful as a matter of contract that will be a relevant factor in considering the overall question of reasonableness. It is not determinative of that question.

Further, were we to accept Mr Lynch's submission, we should be undermining, by extension, a strong and consistent body of authority which has grown up in cases where some other substantial reason, namely a business reorganisation, is relied upon as the reason for dismissal.

In this connection we would mention RS Components Ltd v Irwin [1973] ICR 353, a case in which the complainants were dismissed by their employer for refusing to agree to the addition of a post-termination restraint of trade covenant to their contracts of employment. Plainly, the employer could not insist on such a variation to the contract unilaterally as a matter of contract law, but the National Industrial Relations Court held that such a covenant was properly required by the employer for the protection of its business, that the employees' dismissal for refusal to accept the variation was for some other substantial reason, and the dismissal was fair.

Similarly, in Hollister v National Farmers' Union [1979] ICR 542, unilateral variations to the contract of employment insisted upon by the employer as part of a properly consulted upon business reorganisation led to a finding of fair dismissal, following the employer's refusal to accept those variations for some other substantial reason.

An interesting example of the distinction between the contract test and the reasonableness test is to be found in Genower v Ealing Area Health Authority [1980] IRLR 297. There, the Employment Appeal Tribunal upheld an Industrial Tribunal decision that although the attempt by the employer to impose changes in the appellant's duties, causing him to resign, amounted a constructive dismissal, the dismissal was nevertheless fair for some other substantial reason.

Mr Lynch contends that there is no proper analogy to be drawn between cases of dismissal for gross misconduct and those for some other substantial reason. We disagree. Both are potentially fair reasons for dismissal. The question of fairness will depend upon the Industrial Tribunal's view as to the reasonableness of the dismissal on the particular facts of each case.

We return to the case of Simmonds. If and insofar as the appeal tribunal was there concluding that because the employer required the employee to do something which fell outside the scope of his contract under the threat of disciplinary action it necessarily followed that his constructive dismissal was unfair we would respectfully say, in the light of subsequent authority, that such a conclusion is an oversimplification. Of course, it may be, as appears to have been the case in Pedersen, that the employer advanced no alternative case as to a potentially fair reason for dismissal if he failed on the question of constructive dismissal. In that event, a finding of unfair dismissal would necessarily follow, since absent a prescribed reason for dismissal, the question of reasonableness does not arise.

Summary

It may be helpful to reduce our conclusions as to the law to the following propositions:

(1) The question as to whether or not an employee has been constructively dismissed will depend upon the contractual position. Was the employer in repudiatory breach of contract, entitling the employee to treat himself as discharged from further performance?

(2) In a claim of wrongful dismissal, now brought within the jurisdiction of the Industrial Tribunal by the Extension of Jurisdiction Order 1994, where the employer relies upon the employee's refusal to obey an instruction to justify summary dismissal, that instruction must be shown by the employer to be both lawful and reasonable.

(3) Where the claim is for unfair dismissal, and the employer relies upon a refusal to obey an instruction as the reason for dismissal, the lawfulness of the instruction will be central to any question of constructive dismissal, but of relevance to, not determinative of, the fairness of the dismissal.

The present case

We have set out the tribunal's findings as to the reasonableness of the appellant's dismissal in extenso. In our judgment the tribunal exhibits sound reasons for concluding that on balance the dismissal was fair. It certainly cannot be said to be a perverse conclusion, in the sense identified by the Employment Appeal Tribunal in East Berkshire Health Authority v Matadeen [1992] IRLR 336, as Mr Lynch contends.

We should deal finally with this point raised by Mr Lynch. He points to the evidence given to the tribunal by two of the School governors, Mrs Hoskins and Lt.Col. Gibson, to the effect that had they been advised that the change in job description fell outside the scope of the appellant's contract, the matter might have been viewed in a different light. As Lt.Col. Gibson put it, he was more concerned to see if Mr Redman could legally impose the change, rather than considering the reasonableness of it. In these circumstances, submits Mr Lynch, the appellant would probably not have been dismissed had the respondent correctly construed the terms of the contract. It follows that to dismiss him in these circumstances was unfair.

In our judgment the tribunal was fully aware of that evidence. However, it had to judge the case on what happened, not what might have happened. It was open to the tribunal to conclude, as did the Industrial Tribunal in Fishman, that in all the circumstances that respondent acted unreasonably in treating its mistaken view as to the true contractual position as a sufficient basis for dismissal. It chose not to do so. That was, on the facts, a permissible option.

Conclusion

It follows that this appeal must be dismissed. There will be an order for the appellant's Legal Aid taxation.