United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A R DENT (of Counsel) Messrs Catteralls Solicitors 15 King Street Wakefield West Yorkshire WF1 2SL
For the Respondents	MR J PARKIN (of Counsel) Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB


 


MR JUSTICE LINDSAY: We have before us an appeal by Mr K Williams against the decision of the Industrial Tribunal promulgated on 8th January 1996. That was a decision in a matter in which Mr Kevin Williams was applicant. He was formerly an employee and the respondent on that occasion and the respondent here is ASDA Stores Ltd, his erstwhile employer. The particular decision of the Industrial Tribunal was arrived at after a hearing of some two days, 31st October 1996 and 5th December 1995. It was an Industrial Tribunal under the Chairmanship of Mr A J Simpson.

The decision says this:

"The applicant's claim alleging wrongful dismissal succeeds and the applicant is awarded damages of £1050 in respect of such wrongful dismissal. The remainder of the applicant's claims is dismissed."

That decision is headed "SECOND DECISION", and the reason why it is headed "SECOND DECISION" is that there had been an earlier decision of another Industrial Tribunal promulgated on 8th September 1995. That first Industrial Tribunal held that Mr Williams was not at any material time a "shopworker" for the purposes of the Sunday Trading Act 1994 and accordingly was not entitled to the protection which that new legislation gave to shopworkers.

There was no appeal in time against that first decision, and the Industrial Tribunal and, later, the Employment Appeal Tribunal refused Mr Williams an extension of time for any appeal against that first decision.

The second decision indicates that Mr Williams succeeded on wrongful dismissal and the remainder was dismissed, and remainder consisted of an unfair dismissal claim and a claim in relation to sex discrimination.

The only ground now pursued by Mr Dent appearing before us for Mr Williams as appellant, is as to the unfair dismissal part of the case. The way the matter has been argued requires a close look at s.60A of the Employment Protection (Consolidation) Act 1978. It is necessary to begin a little earlier in the Act. Part V, of which s.60A forms part, is headed "UNFAIR DISMISSAL". S.57(1)(a) begins:

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

(a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, ..."

And one then goes on to see whether the reason is a reason falling within ss.57(2) or 57(1)(b), and one then goes on to examine the reason further in the light of s.57(3).

S.57A also refers to the expression, in relation to dismissal;

"the reason for it (or, if more than one, the principal reason) ..."

So does s.59; so does s.60. There is perhaps no single topic on which Industrial Tribunals have more experience than they have in looking to see what is the single reason or what are the reasons, and, if more than one, which is the principal reason, for a dismissal. It is a topic that occupies them very greatly, perhaps more than any other.

Then one comes to s.60A:

"(1) The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee-

(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right; or

(b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of subsection (1) whether the employee has the right or not and whether it has been infringed or not, but, for that subsection to apply, the claim to right and that it has been infringed must be made in good faith.

(3) It shall be sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4) The following statutory rights are relevant for the purposes of this section, namely-

..."

and then it sets out a whole list of rather disparate rights which now include at s.60A(4) a reference to rights under the Sch. 4 to the Sunday Trading Act 1994, so long, at any rate, if it is a right for the remedy for an infringement of which is by way of complaint or reference to an Industrial Tribunal.

So s.60A gives rise to three questions. The first is this: what was the single reason or, if there was more than one, what was the principal of the two or more reasons for the dismissal of the employee? Question two is: is that single or principal reason that the employee had done either or both of two things, namely, one, had brought proceedings against the employer to enforce a particular described kind of right of his, or, two, had alleged that the employer had infringed a particular described kind of right of his? That is a compound question. The third question is this: if the answer to question two is yes, had the employee's claim in the proceedings or his allegation that his right had been infringed been made in good faith? For the purposes of the second of those questions, it matters not whether the employee truly was entitled to the right or whether the right had truly been infringed.

If the answer to the second question is yes, and the answer to the third is yes, then, for the purposes of claims for unfair dismissal, the dismissal is, without more enquiry, automatically to be taken to have been unfair. And, for today's purposes, the particular described kinds of rights that are in issue are the rights conferred by Sch. 4 of the Sunday Trading Act 1994.

It has to be noted that it avails an employee nothing if he has brought proceedings to enforce the described kinds of right or, if he has alleged that his employer has infringed that kind of right, if the bringing of such proceedings or the making of such an allegation is not either the single or the principal reason for his dismissal. To take an extreme example, if he is dismissed for theft of his employer's property, which is obviously a severe form of misconduct, it matters not that he had previously brought proceedings to enforce his rights under the Sunday Trading Act 1994, or rights which he thought he had under that Act. There has to be a nexus between the dismissal on the one hand, and the assertion of the described rights on the other, and the nexus which is required by the Act is that the assertion has to be either the only or the principal reason for the dismissal.

The difficulty that the appellant suffers before us is that the date of dismissal was 25th March 1995, the Sunday Trading Act 1994 became an Act on 5th July 1994 and, the rights created by Sch. 4 became rights on 26th August 1994. So the question then becomes this: had Mr Williams in that interval between July or August of 1994 and 25th March 1995 brought proceedings against his employer to enforce a right of his under the Sunday Trading Act 1994, or at least a right which he in good faith believed he had?

Well, very sensibly, Mr Dent does not allege that there were actually brought proceedings, so that limb does not assist Mr Williams.

So the next question is this: did Mr Williams in that interval allege that his employer had infringed a right of his of that kind, namely a right under the Sunday Trading Act 1994 and which he believed he had or did have?

It is certainly the case that Mr Williams had asserted that ASDA was in breach of contract as to Sunday working, and he had served a so-called opting-out notice under the Sunday Trading Act 1994 on 24th January 1995, and in March 1995 he had indicated that he wanted to exercise his rights under the Act. That, in itself, is not an allegation that the Company had infringed his rights; it is more an allegation that he was entitled to rights. But we have the bundle of correspondence with us, and on 14th March 1995 Mr Williams wrote to the Company (page 20 of the bundle of correspondence):

"With regard to your recent letter dated 8 March 1995 I must protest at the Companies insistence that recent Legislation (the Sunday Trading Act 1994) does not apply to me. Having taken legal advice from several sources which clearly state that I am within my rights, I feel that I must implement grievance proceedings with regard to the Companies failure to recognise the Sunday Trading Act and its application to me. With this in mind and so as not to prejudice my rights under the Act I must inform you that I am not and will not be available for Sunday work because of my objections to Sunday work as stated in the prescribed from submitted to you on the 24th January 1995.

This does not constitute a fundamental breach of my contract as provision is made within the appropriate legislation for employees who are or can be required to work on Sundays under the terms of their contract.

It is with great regret that I have to take such action but feel that I have been left with no alternative."

A little later, on the very day of his dismissal, 25th March 1995, he writes again (bundle of correspondence page 25):

"I refer to your letter of 23rd March. I still maintain I have the right to opt out of Sunday working and as such would have prejudiced my case had I reported for work on Sunday 19th March.

I repudiate the suggestion that I have brought my employment to an end by breaching my contract, as when I commenced my employment with the company I was told that I would not be required to work on a Sunday, and have not done so for the past five years. This is an implied contractual term borne out by custom and practice. I have always been prepared to fulfil this contractual obligation and it is only your changing my rota'd working days by requiring me to work Sunday after the legislation of Sunday opening which have brought about these problems.

I categorically refute that I have brought my employment to an end. I HAVE NOT RESIGNED. I can only presume that I have therefore been dismissed."

That letter would therefore seem to have been written after he had been dismissed.

It is very far from clear to us that as at 25th March 1995 Mr Williams was alleging that his statutory rights had already been infringed, as opposed to his asserting that he had a contractual right not to be required to work on Sundays, and warning the Company about the future. But let it be assumed in Mr Williams' favour, without us so deciding, that Mr Williams had indeed so alleged. Was there then the required nexus between that and the dismissal - namely, that that was either the single or the principal reason for dismissal?

Here, as it seems to us, even making that assumption that Mr Williams has made out a case within the terms of s.60A(1)(b), namely assuming in his favour that he had indeed alleged that the employer had infringed a right of his, his case, as it seems to us, founders. The Industrial Tribunal which as I mentioned earlier, is experienced at finding what the reasons are for dismissals, does in terms find a reason and states it clearly in paragraphs 13 and 15 of its decision. In paragraph 13 they say this:

"13. ... He was required to work Sundays. As a result of the impasse the respondents took the view that applicant was in fundamental breach of his contract and they accepted that breach and the contract thereby came to an end.

14. This in law is a dismissal. ...

15. We find that the reason for the applicant's dismissal was his refusal to work on a Sunday despite the contractual requirement to do so. ..."

So, paraphrasing the reasoning of the Industrial Tribunal, the case for the employer which was accepted by them, was on these lines: "You contracted to work on Sundays. You have refused to work on Sundays. You are therefore in breach of contract. I, the employer accept that breach as a repudiation, therefore, the contract is at an end." It seems to us that there is no component in that reasoning of the Industrial Tribunal that suggests that any part of the reason that they found was that the employee had either brought proceedings against the employer to enforce a right or had alleged that the employer had infringed a right of the kind described in the statute.

True it is that the Industrial Tribunal finds that there was no bad faith on Mr Williams' part. What they say in paragraph 12 of their decision is this:

"12. The applicant and the respondents had a number of meetings. It is quite clear from the evidence that the respondents sought to do all they could to persuade the applicant to work on a Sunday and moreover to persuade him of the fact that he had misunderstood the effect of the Sunday Trading Act and that by reason of his work as a heavy goods vehicle driver as opposed to a shopworker, he did not have the protection of the act. We are satisfied that the applicant was acting on advice, albeit advice that was clearly wrong. There is no suggestion that the applicant was in any way acting from a mischievous motive or in bad faith. Apparently on the basis of the advice he had received genuinely believed that he was entitled to opt out and he continued in that general belief up to the time that his employment ended."

But it will be noted that there is there no finding that Mr Williams had by the time of his dismissal already brought proceedings to enforce any Sunday Trading Act right or had alleged already an infringement of such a right. The finding of good faith merely operates so that s.60A(1) was open to Mr Williams; it was not, in other words, dis-applied by reason of his bad faith as, there was no bad faith. It could therefore have helped Mr Williams had he been able to prove a case within s.60A(1). The finding of good faith does not mean that he had proved such a case, and there is no hint in the Industrial Tribunal's reasoning to suggest that either he had proved the necessary case or that he could.

That the Industrial Tribunal had the s.60A point fully in mind is quite clear from their reasoning, in particular from paragraph 12, which I read, as to their finding of good faith, which is a consideration particularly relevant to s.60A.

We do not find ourselves able to describe the Industrial Tribunal as having misdirected themselves. They are invulnerable on the facts, and, as we see it, there is no error of law in their decision.

The Act protects persons against certain kinds of victimisation. An employee is not to be dismissed for asserting his rights or what he truly believes are his rights. But the Act does not protect a man or a woman against breach of contract, where it is the breach of contract which is, as here, found to be the only reason for the dismissal.

Accordingly, the appeal is dismissed.