United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BENSON (of Counsel) Messrs Hill Dickinson Davis Campbell (Solicitors) Pearl Assurance House Derby Square Liverpool L2 9XL


 


JUDGE PETER CLARK: The appellant, Mr Gilhooley, appeals against a majority decision of the Liverpool Industrial Tribunal following a hearing held on 2nd July 1996, dismissing his complaint of unfair dismissal against his former employers, Serco LAL Ltd. Extended reasons for that decision are dated 18th July 1996.

The background, so the tribunal found, was this. The appellant had been employed by the respondent as an apron hand at Liverpool airport. He was responsible for duties such as driving vehicles and loading aircraft.

In 1994 the appellant and others were employed on an eight day rolling shift pattern; that involved work from time to time on Fridays and Saturdays.

In March 1994 the appellant became a 7th Day Adventist. It is a tenet of that faith that the Sabbath should be observed, that is, between dusk on Friday and dusk on Saturday. The appellant was accordingly not prepared to work between those times.

Between March and November 1994 he was able to arrange matters so that he would not have to work on the Sabbath, principally he took holidays on the relevant days. However, in November 1994 the respondent agreed to re-arrange his roster so that he could go onto permanent night-shift, from Sunday to Thursday night. That was an arrangement which suited both parties. That situation continued until December 1995, when the appellant went off sick with a back injury. The tribunal found that it was a term of the appellant's individual contract of employment that the respondent could change his rostered hours.

In due course, the employer decided that the work in which the appellant was engaged should revert to the eight day pattern. The appellant declined to accept this change, in so far as it would require him to work on the Sabbath. There was a counselling interview on 16th February. On 19th February he was suspended, and in due course following a disciplinary hearing on 14th March, he was dismissed for disobeying a lawful instruction. His appeal against that decision failed.

The tribunal decided that the reason for dismissal was a reason relating to his conduct, his refusal to obey what the respondent claimed they regarded as a reasonable instruction. They also found that Mr Whelan, the manager involved, genuinely believed that there were sound bona fide business reasons for reverting to the eight day rolling shift system. It seems to us that it was open to the tribunal to characterise the reason for dismissal either as conduct or as some other substantial reason, namely a business reorganisation. We bear in mind that the employer's reason for the dismissal was a set of facts in his mind, the precise label attached to it by the employer is not of itself the critical issue.

The tribunal parted company over the question of reasonableness under what is now s.98(4) of the Employment Rights Act 1996. The majority of the tribunal accepted that the Company had made every effort to explore alternative working arrangements, and they accepted as a matter of fact that the appellant had been offered alternative positions as a security guard or a cleaner, but had declined those offers.

The minority member on the facts found that such alternative offers of employment had never been made to the appellant, and the minority member would have found the dismissal unfair.

The majority concluded that the dismissal was fair, and in arriving at that conclusion they considered what they regarded as a provision in the appellant's contract on employment to the effect that the Company would not discriminate against employees on the grounds of inter alia religion. That clause is to be found in the collective agreement reached between the employer and the appellant's trade union, but the tribunal found that it was expressly incorporated into the individual contract of employment.

They approached the matter on the basis that even if the employer was in breach of that contractual term by requiring the appellant to alter his shift and thereby work on the Sabbath contrary to his religious beliefs, nevertheless that instruction was one that was reasonably given in all the circumstances and his dismissal was not unfair.

Against that decision, an application for review having failed, the employee now appeals. Mr Benson on his behalf has argued first that the majority reached a perverse finding when they held in paragraph 31 of the reasons that the Company had done everything reasonable to accommodate Mr Gilhooley. It seems to us that that was purely a matter of fact and degree for the Industrial Tribunal and we are unable to see any arguable point of law raised on this perversity ground.

His second ground of appeal relates to the contractual term that the Company will not discriminate on religious grounds against an employee and in particular the appellant. It is accepted that there is no statutory protection against religious discrimination in the circumstances of this case.

He submits that in view of the fact that the contract provided for non-discrimination, it was wrong for the Industrial Tribunal to conclude that this was a conduct dismissal; and in considering reasonableness the tribunal must consider the reason for dismissal, that the Industrial Tribunal misdirected themselves at that critical stage of their deliberations. We cannot accept that argument. It seems to us that the tribunal, at any rate the majority with which we are concerned, did proceed on the basis that there was such a term of the contract and that it had been breached by the employer. Nevertheless, they held as we consider they were entitled to, that taking all matters into account, the employer acted reasonably in treating the appellant's refusal to work the new shift system as a sufficient reason for dismissal.

In these circumstances we have come to the conclusion that this appeal discloses no arguable point of law and therefore at this preliminary stage we shall dismiss it.

Legal Aid taxation granted to the appellant.