United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON


 


MR JUSTICE LINDSAY: We have before us as a Preliminary Hearing the appeal of Mr M I Amin against his erstwhile employer London Underground Ltd. There was a decision of the Industrial Tribunal promulgated on 22 November 1996 in proceedings in which Mr Amin was the Applicant and London Underground Ltd the Respondent.

The unanimous decision of the Tribunal on that occasion was that the Applicant, Mr Amin, was not unfairly dismissed. That was the result of a hearing on 14 October 1996.

The position is that Mr Amin operated trains for London Underground. His employment ran from 23 January 1984 to 6 February 1996, when he was dismissed. The reason given by the employer was "gross irregular attendance to duty despite repeated warnings". The position is that in 1993 the employer introduced a revised procedure for dealing with absences. Mr Amin never formally agreed to that revised procedure but the position was that he was held by the Industrial Tribunal to know of this new procedure which was called "irregular attendance procedure" and that he had been alerted to it by the unions.

His attendance record was vulnerable to criticism. On 18 February 1994 he received a first warning under the new procedure. It covered some eight absences from work. The Industrial Tribunal held that Mr Amin received his first relevant warning on absence on 18 February 1994; that covered the eight items of absence. On 28 April 1994 he received a Level 2 warning. On 7 October 1994 he received a Level 3 warning. On the last occasion mentioned, 7 October 1994, that Level 3 warning included a letter warning that in the event of further irregular attendance occurring within a 104 weeks he would be formally interviewed as to his attendance record and as to the question of his continued employment.

On 20 February 1995 there was such an interview and on 14 November 1995 there was another, but, in each case, no formal step was taken by the employer. On 12 January 1996 there was another interview dealing with eight absences, one running for five days. The Industrial Tribunal, speaking of that, said at paragraph 2:

"(8) ... The interview dealt with eight separate periods of absence, the last of which had run from 7 January 1996 to 12 January 1996 when Mr Amin thought he was on annual leave having mis-read the duty sheet."

The next stage was a disciplinary Board meeting where he was charged with gross irregular attendance. He was, on that occasion, represented by a union official. The charge was found proved. The Industrial Tribunal said at paragraph 2 of their Extended Reasons:

"(10) ...At the conclusion, Mr Sheed [he was the man who had conducted the disciplinary hearing] decided that Mr Amin should be dismissed having found the charge of gross unsatisfactory attendance proved."

(My reference to a union representative was because the Industrial Tribunal says in paragraph 11 that Mr Amin was represented at the disciplinary hearing by a local ASLEF representative.) That charge having been found proved, Mr Amin was dismissed on 6 February 1996. There was then an internal appeal on 26 March 1996 and, again, Mr Amin was represented by an ASLEF representative and the appeal was dismissed. Accordingly when the Industrial Tribunal looked into the matter they found this at paragraph 2:

"(12) At no time between his first disciplinary interview in February 1994 and final dismissal on 6 February 1996 did Mr Amin, or his representatives, challenge the use by the Respondent of the irregular attendance procedure to determine the disciplinary steps taken."

Before the Industrial Tribunal two chief arguments had been raised by Mr Amin's Counsel. The first was that the use of the irregular attendance procedure was a breach of contract on behalf of London Underground, and secondly, that in any event dismissal was outside the band of reasonable responses available to a reasonable employer in the circumstances.

Dealing with those points the Industrial Tribunal held in paragraph 6:

"... We are unanimously satisfied that his acceptance of the new terms can be implied from his conduct. It follows that his dismissal was not in breach of contract."

As to the range of reasonableness, the Industrial Tribunal held in paragraph 7:

"... The Respondents fully investigated the reasons for Mr Amin's absences at the disciplinary hearing and received a medical report on the state of his family's health. Mr Amin was aware that absences in breach of the irregular attendance procedure would normally lead to dismissal once the stage of disciplinary procedure had been reached. We accept that the decision to dismiss was a hard decision. Nonetheless, we unanimously concluded that it did fall within the range of reasonable response available to a reasonable employer and accordingly we find that Mr Amin was not unfairly dismissed."

The Notice of Appeal takes the very same two points, in effect. Indeed, Mr Amin, appearing in person today, has done the same. The Appellant, Mr Amin, relies, in effect, on the case of Jones v Associated Tunnelling Company Limited [1981] IRLR 477 EAT before Mr Justice Browne-Wilkinson (as he then was) and two Members.

That case, albeit obiter, makes four points that are relevant for present purposes. The first is that by continuing without objection to varied terms of contract, an employee may either be taken to have agreed them or may stop himself from objecting to them. That is the first point. The second point is that for a court or a tribunal to rely upon such an implication or to rely upon such an estoppel is a course to be adopted by the court or tribunal only with great caution. Thirdly, the case illustrates that if an alleged variation is of immediate practical application to the employee (an obvious example would be a reduction in his wages, a thing that he could be expected to come across promptly) then his non-objection to the variation is more likely than otherwise would be the case to lead to an implication that he has agreed it, or to lead to his being estopped from objecting to it. That is the third point. The fourth point is that it is too much to expect of an employee that he should constantly be monitoring matters that do not immediately affect him or which are not visible as immediately affecting him. In such cases then it would be wrong to rely upon implication or estoppel merely as generated by his failure to dissent.

Those are four points made in the Jones case. The Jones case was in front of the Industrial Tribunal as also was the Aparau case, which decided, as a matter of ratio, that those four points are good law.

The question of whether there has been, by implication, an agreement to a variation of contract is very much a matter to be decided in the light of all surrounding circumstances. It is very much a matter properly to be left, so far as it has a factual content, to the decision of the Industrial Tribunal as the "Industrial Jury". Given the repeated application to Mr Amin of the new procedure without any objection or query, as was found by the Industrial Tribunal, it is, in our view, impossible to say that the Industrial Tribunal's conclusion was not one to which a reasonable Industrial Tribunal properly instructing itself could have come.

Mr Amin has referred, and it was also referred to below, to another case against London Underground Ltd by another employee, a Mr Shaik, that had a different consequence in that in that case the decision of the Tribunal was that Mr Shaik was unfairly dismissed. Of course, each Tribunal deals with the case on the evidence that is put to it. But an important difference, as seemed to the Industrial Tribunal in our case, between the case before them and Shaik, was that in the Shaik case the Industrial Tribunal had, on the material in front of it, been able to take the view that the employee had not, by implication, agreed to the new procedure. In other words, in that case the position was that the employee had normally voiced the well-known stance of his union, namely that they did not accept the procedure, whereas in our case, as in the paragraph I earlier read, the Industrial Tribunal was able to find that there had been no challenge, despite the application of the new procedure, between February 1994 and February 1996.

Accordingly, the Shaik case having been distinguished on a rational ground, we see no error of law on this part of the case, that is to say, the part referring to whether or not there had been a breach of contract by the application of the new procedure.

Turning then to the second point, as to the reasonableness or otherwise of the employer's response, the Notice of Appeal is bald to the extent of defect. We have been able to discern no point of law available to Mr Amin on that limb of the case, and, those being the only two material arguments developed, we see this as not a proper case to go to a full hearing and accordingly dismiss the appeal.