United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R S SYMONDS Free Representation Unit 49-51 Bedford Row London WC1R 4LR


 


JUDGE CLARK: The Appellant, Mr Wallace, was employed by the Respondent as an electro-mechanical assembly worker at its Enfield premises from 18 July 1988 until his summary dismissal 19 July 1995. At the date of dismissal he was just short of his 64th birthday.

Following dismissal he complained to an Industrial Tribunal on 23 August 1995. His claims were for pay in lieu of notice, that is a common law claim for damages for wrongful dismissal arising out of an alleged breach of his contract of employment; contractual holiday pay and unfair dismissal. By its Notice of Appearance the Respondent contended that the Appellant had refused repeatedly to carry out a reasonable order; that it was something which he had done many times before; that verbal and written warnings were issued, and that this constituted gross misconduct, exempting the employer from an obligation to make payment in lieu of notice.

The complaint came before an Industrial Tribunal sitting at Stratford on 27 March 1996. That Tribunal dismissed all three complaints. The Extended Reasons for that decision are dated 11 July 1996. The factual background as found by the Tribunal was as follows:

"3. ... The Respondents are designers and manufacturers of electronic control equipment and low temperature dishwashing machines. They employ some 30 manual workers, of which two or three, including the Applicant, assembled metal control boxes. About every two months assemblers were required to repair and clean a batch of used control boxes returned by customers.

4. On 10 and 12 July 1995 the Applicant was asked by his foreman to carry out this work. He refused. On 13 July a formal disciplinary meeting was held with the production manager and the Applicant was warned that if he still refused to carry out the work he would be given a final warning which, if unheeded, would lead to dismissal. On 14 July, ... the Applicant was given a final written warning and on 19 July was dismissed."

There was some dispute as to whether or not the Appellant was the only one called upon to do this particular work. The Tribunal found at paragraph 7 of their reasons:

"... that the Applicant had customarily carried out the work before and he does not dispute the fact that he refused to carry out the foreman's instructions."

Against that background the Tribunal concluded that his dismissal was fair and against that finding there is no appeal. As to the remaining two claims, the Tribunal deal with the wrongful dismissal claim briefly in one sentence. They said at paragraph 10:

"As the Applicant was summarily dismissed, he is not entitled to a payment in lieu of notice."

The principle point taken in this appeal by Mr Symonds on behalf of the Appellant is this: a clear distinction must be drawn between the legal principles applicable to claims for unfair dismissal and wrongful dismissal, now that breach of contract claims fall within the jurisdiction of Industrial Tribunals. In a claim for unfair dismissal, the question is whether the Respondent employer has established a prescribed reason for dismissal, here conduct, and whether the employer has acted reasonably under Section 57(3) of the 1978 Act, now Section 98(4) of the Employment Rights Act 1996.

That is a different question from that posed in a common law claim for wrongful dismissal. There, it is for the employer to establish as fact that the employee is guilty of a breach going to the root of the contract, entitling the employer to treat the contract as discharged by that breach. It is the mirror image of the employee's right to treat himself as constructively dismissed, where he accepts the employer's repudiatory breach of contract.

At common law the employer's right to summarily dismiss the employee typically arises in cases of gross misconduct involving for example: dishonesty, disobedience, or gross incompetence.

As with the employee's claim of constructive dismissal, two issues arise in the case of summary dismissal: was the employee in breach of contract? If so, is the breach sufficiently serious to amount to a repudiation? That will depend on the circumstances. See Laws & London Chronicle (1959) 2 AER 285, Wilson v Racher [1974] ICR 428.

Mr Symonds submits that this Tribunal has not drawn the distinction between the issues arising in the unfair dismissal claim and those arising in the wrongful dismissal claim. The finding in paragraph 9 that the Tribunal was "satisfied that the penalty of summary dismissal was within the range of reasonable responses" cannot answer the question of repudiatory breach raised in the wrongful dismissal claim. We agree. Further, it may be said the Tribunal's reasons for dismissing the wrongful dismissal claim are inadequate. At any rate, their reasoning begs the question rather than answers the question as to whether or not there has been a repudiatory breach by the Appellant. The fact that he was summarily dismissed, does not of itself disentitle him to a payment in lieu of notice. That can only arise where the summary dismissal is justified. There is no express finding to that effect.

We see the force of that submission and without more, would permit the appeal to go forward to a full hearing, this being a Preliminary Hearing, held to determine whether there is any arguable point of law in the appeal. However, that is not quite the end of our consideration of this case at the Preliminary Hearing stage.

If we conclude that, notwithstanding a misdirection in law by the Tribunal, its decision is plainly and unarguably right, we may dismiss the appeal. (See Dobie v Burns International [1984] ICR 812. We return to the Tribunal's primary findings of fact. The Appellant had customarily carried out the disputed work in the past. He did not dispute that he refused to carry out the foreman's instruction. He was given every opportunity to comply but maintained his refusal. In these circumstances it is clear to us that the Appellant was in breach of the implied term of his contract that he would obey the Respondent's reasonable instructions. There was a deliberate flouting of those instructions. The breach was fundamental entitling the Respondent to treat the contract as repudiated and to discharge him summarily.

Accordingly, we conclude that the Tribunal's decision to dismiss the Appellant's claim for wrongful dismissal was plainly and unarguably right upon a proper application of the law, and we shall dismiss this appeal.