United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR O OGUNNOWO (Representative)


 


HIS HONOUR JUDGE D PUGSLEY

1. This is a case where the Applicant seeks to appeal the decision reached by the London North Industrial Tribunal that he was not dismissed. The very brief circumstances is that the Applicant was an on board parking attendant with Sureway Parking Services. Sureway Parking Services had an agreement with the Royal Borough of Kensington and Chelsea under paragraph 3, to this extent.

"The authorised officer should be entitled, but not unreasonably or vexatiously, to require the contractor, by notice in writing, to remove from the provision of the service any employee of the contractor specified in such notice, including the contract manager. The contractor shall forthwith remove such employee from the provision of the service and shall as soon as it is practicable thereafter provide for a replacement if necessary".

"In pursuance of that contractual condition, on 23^rd September 1997, Kensington Council required that the Applicant should no longer serve in the capacity of parking attendant in the Kensington Council area. On the 9^th April 1998, following the ending of the job the Applicant had performed from September 1997 to April 1998, off the street, processing photographs of impounded cars, Kensington Council required that the Applicant should not be employed in any capacity on the Kensington and Chelsea contract."

"There was an amicable discussion between the Respondent and the Applicant on 11^th June regarding possible transfer opportunities out of the Kensington Council area. No transfer was decided upon"

"A meeting on 11^th June raised suspicions in the ming of the Applicant's manager, Mr Caplin, regarding the Applicant's integrity, where before that point Mr Caplin had given the Appliant the benefit of the doubt when queries were raised about his performance of his parking attendant duties. Mr Caplin conducted an investigation and concluded that there was a case of misconduct for the Applicant to answer. The Applicant was thereupon suspended on 8 July 1998 and there were various investigative meetings running through July, but the Applicant did fail to attend certain proposed meetings"

2. The Applicant decided that he was not going to co-operate. The Applicant before us has challenged a finding set out in paragraph 7 (ix) of the decision.

"The Tribunal concluded there was no actual decision to move the Applicant to another contract, in Richmond or elsewhere. Nor was there an actual decision that his salary would be reduced. In the letter of 4^th August these were clearly proposals not actual decisions. The Applicant's views were being asked for before a decision was arrived at. The Applicant chose to resign rather than giving his views on these proposals".

3. The letter of 4^th August was not in our bundle, we are now seeing it, and we have to say that we consider it raises arguable grounds which have not occurred to us until seeing the letter. After pointing out to him that he had failed to play a constructive part in the investigations and that would mean that the employer might come to a view that he deliberately falsified the records if there no explanation was given. The letter went to say this

"As an entirely separate issue, I should tell you that our client, the Royal Borough of Kensington and Chelsea have decided that they no longer wish you to work on this contract. We therefore have to place you elsewhere if indeed Mr Caplin and Mr Liddy decide that your contract should not be terminated".

"You currently hold the position of ON Board Parking Attendant. There is no similar job available at the Richmond contract and our proposal is to move you to the Richmond contract and our proposal is to move you to the Richmond contract in the job of Parking Attendant. This will involve a reduction in your salary of approximately £600 per annum. I emphasise that this proposed move is not a disciplinary measure but arises simply because of the insistence of our client that you be taken off their contract. It is possible that in the alternative that we could move you to the Bexley site but again this would have to be in the capacity as Parking Attendant. If in the future a similar position arises within these two contracts we will notify you forthwith".

4. Although the Tribunal found that those were clearly proposals, we have some difficulty in seeing how the phrase

"As an entirely separate issue, I should tell you that our client, the Royal Borough of Kensington and Chelsea have decided that they no longer wish you to work on this contract. We therefore have to place you elsewhere if indeed Mr Caplin and Mr Liddy decide that your contract should not be terminated".

can be regarded solely as a proposal.

We think it is at least arguable to say no more than that this is a statement of a decision which has been taken rather than a proposal and that might provide a rather different complexion on the facts found by the Tribunal. We think it merits further arguments as to the meaning of that letter and the context of the surrounding matter. We therefore give leave on the grounds put forward, 1-4, we cannot see that ground 5 adds anything. This case should be listed for half a day, Category B.

5. We categorise this as Category B because we consider there is an issue here which raises an issue of some public interest: namely, the extent to which an employer acts fairly when responding to an objection raised by a contracting party in respect of their employees