United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR Y G HUGHES (Of Counsel) Jacklyn Dawson & Meyrick Williams Solicitors Equity Chambers John Frost Square Newport Gwent NP9 1PW


 


JUDGE HICKS QC: Mr Rudge and Mr Sheldon, the Respondents to this appeal, were employed by the Appellants, Tinghamgrange Ltd, in a small family business which they joined about the middle of 1988. The business concerned the manufacture of moulded concrete and they trade was highly seasonal. It was unskilled work but physically demanding and in fact Mr Rudge and Mr Sheldon had the heaviest of the work among all the employees.

The contract between them and the employers was not recorded in writing but as the Tribunal found the term as to overtime was that the employees would work reasonable overtime to coincide with seasonal fluctuations and the demand of the business but, as the Tribunal found, that did not give the employers carte blanche to require them to work whatever hours the company should, in its discretion, impose. As the employer's witnesses accepted and the Tribunal found, the line had to be drawn somewhere as to what amount of overtime could actually be asked of people. That line had never been specified and the term was therefore defined by the word "reasonableness", and reasonableness is a question of fact for the Tribunal of fact.

It was also the case, as the Tribunal found, that in terms of the history of the matter there had from time to time been Saturday overtime working as well as overtime in the form of additional hours during the working week and sometimes the Respondents, Mr Rudge and Mr Sheldon, had agreed to work on Saturdays at times of peak demand, but there were also times, in fact, on probably more frequent occasions, when they had declined to do so and that had not been the subject of criticism or disciplinary procedures on the part of the employer.

In those circumstances, and against that background, the events which precipitated their departure occurred in June and July 1996. In May of that year hours had built up from the normal 39 to 47½ hours per week, that is to say 8½ hours overtime, for the employees generally, including Mr Rudge and Mr Sheldon. In June it was stepped up to 50 hours, that is to say 11 hours overtime, still worked on Mondays to Fridays. When that point was reached, Mr Rudge and Mr Sheldon said they were not happy about it but they would do it because of the pressure of demand. They made it clear at that point that they would not be willing to work overtime on Saturdays. Saturday working was required then (or shortly thereafter) and the employers were able to satisfy the need for that by volunteers from other members of the workforce.

On Saturday 29 June 1996 a crisis occurred when one of those volunteers, a Mr Presley, did not turn up, which caused the employers very considerable problems in terms of meeting their orders. As a result they decided that Saturday overtime should be made compulsory for everybody; that was announced on 1 July 1996 to the workforce in terms that there would be 6 hours of Saturday overtime compulsory, in addition to the week-day overtime already being worked. Mr Rudge and Mr Sheldon objected to that and, as the Tribunal found, the employers told them that if they refused then there would be disciplinary proceedings of which the outcome would be that they would be dismissed.

The Tribunal found that it was reasonable for Mr Rudge and Mr Sheldon to take that as an entrenched attitude of the employers, as they put it, one from which they would not budge. Mr Rudge and Mr Sheldon treated that as a dismissal and left. The issue of course was therefore whether, since they had left, that was first of all a constructive dismissal, that is to say a fundamental breach of contract on behalf of the employers which they were entitled to accept as repudiating the agreement, and secondly, if it was dismissal, whether it was unfair.

The second point, whether if a dismissal it was unfair, was never really argued by the employers, as the Tribunal found. The argument and the dispute turned on whether there was a dismissal at all, that is to say whether they were in repudiatory breach of contract. The Tribunal found that this demand for Saturday overtime, in the circumstances, was not reasonable and was therefore a breach; that it was also a repudiatory breach, notwithstanding that it was anticipatory in the technical legal sense; that is to say, the occasion had not actually arrived when on a Saturday the employers required the employees to turn up and they did not; the employers had simply made it clear that that would incur dismissal and the employees, as the Tribunal found, were justified in accepting that as repudiation in advance.

The employers seek to appeal and, as Mr Hughes accepts, the only basis upon which they can do so would be on the basis that the Tribunal's findings were perverse, because he is not able to point to any error of law in the way in which the Tribunal expressed their findings and the decision which flows from those findings.

There is simply, in our view, no possible way in which it can be said that this Tribunal was perverse. They made findings of fact for which there plainly was evidence. That evidence might possibly have been looked at differently by a different Tribunal, but it was for them to reach their conclusions on the issues of fact that arose and they did so. No possible ground of perversity has been advanced to us.

After dealing with liability, the Tribunal at a later hearing dealt with compensation and made their award. That also is sought to be attacked in this appeal. The first ground is that it is said that it was not reasonable for the employees to fail to look for work in the Cardiff area as well as places where they did look. Assuming that that point was raised at the compensation hearing, and I say assuming, because nothing about the particular areas appears in the reasons given by the Tribunal, that again, in our view, is entirely a question of fact. The Tribunal find as follows in relation to Mr Sheldon, but the same finding applies to Mr Rudge:

"10 Mr Sheldon showed us his "Looking for Work" form and satisfied us that he had made diligent but unsuccessful attempts to find suitable alternative employment within a sensible travelling distance of his residence, having regard to the rates of pay available and cost of getting to work."......

What was a sensible travelling distance, having regard to the rates of pay and the cost of getting to work, was plainly a question of fact and if that involved, as for the moment we assume it did, canvassing the possibility of Cardiff, then that possibility is covered by the Tribunal's finding and there is no possible way in which we can say that they were perverse in reaching that conclusion.

The second and third grounds apply only to Mr Rudge, not to Mr Sheldon. The first of them seeks to attack this finding by the Tribunal. Having found that in Mr Rudge's case there was the differentiating circumstance that he did have two jobs and therefore must give credit for the sums earned in those jobs during the period for which otherwise he was out of work, the Tribunal say that because the first of these jobs was temporary and the second demanded skills which Mr Rudge did not have, resulting in his dismissal, they took the view that the causative link between his dismissal and the loss calculated above was not broken. There is no challenge to the reference to the temporary job but it is said that the job which Mr Rudge lost, because as the Tribunal found it demanded skills which he did not have and the Tribunal say that that resulted in his dismissal, although Mr Hughes actually put it to us that he gave it up, it is said that it was perverse to find that that did not break the causative link. This again is a straightforward question of fact.

It is quite clear that if an Applicant obtains work during the period for which he is claiming loss of earnings and loses that work for totally extraneous reasons such as "fresh misconduct", then that will break the chain of causation, but whether in the circumstances of this case an attempt to obtain other work which turns out not to be work which he can manage breaks the chain of causation is entirely a question of fact for the Tribunal and there is no basis on which their finding can be attacked as perverse.

The last matter, again relating only to Mr Rudge, is that it is said that from 16 January 1997 (which is during the period covered by the compensation) he was for a period from 16 January in receipt of sickness benefit and would not therefore have been paid. There is no mention of this in the reasons and Mr Hughes is not able to help us as to how it was raised, if indeed at all, before the Tribunal. His instructions are that it was, but in what terms and on what basis and what evidence there was about it, he is not able to tell us, and the papers do not show. Whether the fact that Mr Rudge was in receipt of sickness benefit from a certain date should result in a disallowance of the claim for loss of earnings from that date turns on a number of facts, of which two obvious ones are first, whether the sickness or other event which caused the payment of sickness benefit was of a nature which would have happened in any event or not, and secondly, whether the terms of his contract with the employers, the present Appellants, was such that he would have continued to receive payment during sickness: it is a very common term of contracts of employment that an employee does, and if that were the relevant term then, on the face of it, the loss did continue and no deduction fell to be made except possibly a credit for the sickness benefit itself and that again would turn on the terms of the contract.

There is nothing before us therefore to sustain any argument that the Tribunal were perverse or erred in their approach to this point, insofar as it was raised, and that having disposed of all the grounds of appeal we conclude that it should be dismissed and we order that it shall be dismissed.