United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GREENING (of Counsel) Instructed by: Mr M Lambe Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ


 


JUDGE PETER CLARK: This is an appeal by Mrs Lawes, the applicant before an Employment Tribunal sitting at London (North) under the chairmanship of Mr I H Walker on 12 May, 16th July and 29th July 1998, against the majority decision of that tribunal dismissing her complaint of unfair dismissal against the respondent, London Electricity PLC. That decision, with extended reasons, was promulgated on 29th October 1998.

The appellant commenced her employment with the respondent as an analyst programmer in September 1990. She was engaged in what is described as development work.

In the summer of 1997 the business was reorganised following a take-over by the Entergy Corporation. In particular, a new Head of the Information Technology Department was appointed and a new structure put in place.

Following the reorganisation the respondent identified a particular need to tackle the 'Year 2000 problem', that is the date change at the end of this millennium. The nature of the work involved can be broadly described as research work.

The respondent proposed that the appellant joined the team working on this project. She was not content. She contended that it was not her job, not her skill and she did not want to do it. Further, she argued that a colleague, Mr Roy, ought to be moved to the new work rather than her. She refused. Attempts were made on both sides to reach a compromise. None was possible. Eventually the appellant was dismissed for refusing to obey management instructions on the new project. The disciplinary procedure culminated with an appeal to an external ACAS appointed independent person, Professor Clark. He upheld the respondent's decision to dismiss.

Before the Employment Tribunal there arose an issue as to whether the respondent could contractually require the appellant to change roles. We observe that no other alteration was made to her pay and other terms and conditions.

The tribunal found that the instruction fell within the terms of the contract of employment, made between the appellant and the respondent, by reference to the terms of a collective agreement which they held was incorporated into the contract. The material provision, set out at paragraph 12 of the tribunal's reasons, was under a section of the collective agreement headed "General", it said:

"To meet future business needs methods and patterns of working and job design will be adjusted to make the most effective use of the competence of individuals and work teams. Staff will be expected to work flexibly within their range of capability and competence and to extend this range through training and experience to meet the requirements of the business."

The majority members of the tribunal found that that new agreement, designed to replace an earlier national joint council agreement, was incorporated into the appellant's contract of employment and the tribunal say that:

"13. ... It was done in the way that most collective agreements are carried out, by the trade union and employer keeping their members and employees informed of the agreements and indeed we accept in this case that the new terms which came out of the new collective agreement were to the advantage of the Applicant and that she did in fact accept the new holiday terms and new wages and grading set out in the new agreement."

Alternatively, found the majority, the material provision, to which we have referred, was:

"14. ... little if no different from what would be incorporated into any contract of employment and particularly in the 1990s ... and in particular the effect on employees of new computerised systems."

Mr Greening, on behalf of the appellant, challenges the tribunal's finding, from which the minority member did not dissent, that the provision to which we have referred was incorporated into the appellant's contract of employment. He has told us something of the contractual history. Following her initial employment the appellant was issued with a letter of appointment which in terms incorporated the provisions of the NJC agreement, reached from time to time between the employer and the trade unions, into her contract of employment. However, no such express incorporation applied to the new collective agreement on which the respondents rely in this case. The introduction to the new collective agreement states in terms that:

"This Agreement applies only to the regulated business of London Electricity plc and will be applicable only to those members of staff whose statement of terms and conditions specifically refers to this Agreement as being applicable to them."

That did not happen in this case.

Mr Greening's second point taken in the grounds of appeal related to the tribunal's alternative finding that this is the sort of term that might be expected to be included in any such contract of employment. At present it seems to us arguable that that does not take the question of whether or not it was a contractual term any further on the facts of this case.

The significance of the finding that the respondent was contractually entitled to give the appellant the instruction which it did, is that in considering the reasonableness of the decision to dismiss the majority of the tribunal has proceeded on the basis that this was both a lawful and reasonable instruction. It is well-established, and we considered the principles in Farrant v Woodroffe School [1998] ICR 184, that the question of whether or not the employer was contractually entitled to give the instruction in question, is not determinative of the issue of fairness under s. 98 of the Employment Rights Act 1996. Nevertheless, it is a highly material consideration, and where it can be shown that the Employment Tribunal fell into error in its construction of the contractual term, then it is arguable that the tribunal's decision is fatally undermined and a further hearing of the case will be required.

In these circumstances, it seems to us, that the first two grounds of the Notice of Appeal ought to proceed to a full appeal hearing. We have carefully considered the arguments raised under the third ground of appeal which is headed:

"the industrial tribunal erred in law in that it failed to take into account all the material circumstances of the case"

and then certain matters are set out. We are not satisfied that this ground raises an arguable point of law and we shall dismiss it at this stage.

The final ground of appeal, under paragraph 4 of the grounds, relates to the adequacy of the tribunal's reasons. Having heard Mr Greening's submission on that part of the appeal, we are satisfied that it ought to proceed to a full hearing.

We have been invited to make an order for Chairman's Notes of Evidence. In the light of our decision to strike out the third ground of appeal, we do not consider it necessary to make such an order. We think that the question of the incorporation of the term can properly be determined by reference to the tribunal's reasons and the relevant documentary evidence that was before the Employment Tribunal.

Finally, we direct that this case be listed for ½ a day. Category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this tribunal.