United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D IBEKWE (Representative)


 


JUDGE WILKIE QC: This is an appeal by Mr Bryan, who has been ably represented by Mr Abekwe, against a decision of an Employment Tribunal dated 3^rd March 1999, which dismissed claims which he had made for unfair dismissal, unlawful deduction of wages pursuant to s.13 of the Employment Rights Act 1996, and for breach of contract against his employers, London General Transport Services. The occasion for this decision was a hearing apparently called to consider the preliminary issue, namely whether the applicant was dismissed.

1. The decision of the Employment Tribunal, set out in extended reasons, summarised the history of the applicant's employment. The respondents had employed him since 3^rd April 1979, initially as a bus conductor, but subsequently by 18^th August 1998 they employed him as a bus driver on night duty on the rate of pay for that job.
2. On 18^th August 1998 he was subject to disciplinary action which resulted in being demoted or regraded to a daytime driver, which resulted in a lower rate of pay in respect of the actual hours which he worked. He appealed that decision internally, but he was unsuccessful.
3. The Employment Tribunal had to consider what were the terms of Mr Bryan's employment, and in particular in relation to disciplinary procedures. In paragraph 4 of their decision they set out what the position had been throughout his period of employment in terms of the structure of the contract and its reference to various documents on display where the full text of the disciplinary rules were set out.
4. In paragraph 5 the tribunal dealt with certain events in or about 1994, which resulted in a transfer of the operation of buses from London Transport to private operating companies, one of whom was the respondent. However, it noted as a matter fact in the last sentence of that paragraph, that:

"… the disciplinary procedures … still contained the same sanctions for misconduct as had been there for many years. One of these in conduct cases allowed demotion to a post on lower pay."

5. Mr Bryan's case and his evidence was that he had neither seen nor consented to the 1995 disciplinary agreement nor had he ever known in the 20 years with the bus service of the disciplinary sanction of transfer or demotion. (Paragraph 9 of the decision). In paragraph 10 of the Employment Tribunal's decision the tribunal rejected that evidence and recorded that:

"There was a requirement in his rule book to read the notice-board and the disciplinary rules were clearly displayed in the same place as the day-to-day rota instructions. Moreover, he had long experience of the disciplinary procedures and we find it inconceivable that he would not in the course of that long experience have come into contact with this sanction."

The tribunal, therefore, came to certain findings of fact which they set out in paragraph 11. Firstly, that the disciplinary proceeding were part of his contract; secondly, that they contained a provision to demote; and thirdly, that the applicant knew of this and had known for sometime of those terms and had done nothing to dissociate himself from it even when he knew it might affect him personally.

6. Arising out of those findings of fact, the Employment Tribunal concluded that the act of demotion was not a dismissal. It was the exercise by the employer of a contractual right, which it had to demote for reasons of conduct, and by so doing it did not end employment.
7. In reaching that conclusion, in our judgment, the Employment Tribunal was entitled to do so as a matter of fact on the evidence that they had heard and which they evaluated and there is no error of law as far as that is concerned.
8. Having concluded on the preliminary issue that there was no dismissal, it inevitably followed that each of the three claims made were bound to fail. Namely, that there could be no unfair dismissal because his contract had not been terminated whether by dismissal or otherwise; secondly, there could be no unlawful deduction pursuant to s. 13 because the deduction was authorised by virtue of a relevant provision of the worker's contract and the finding of fact was that the terms of the contract had been notified to the worker in writing in the way the tribunal had described; and thirdly, it inevitably followed that because they were exercising a contractual entitlement by way of discipline, that there could be no claim for loss of wages by way of breach of contract.
9. The Employment Tribunal is the master of its own procedure. It is bound to conduct its hearing in such a way as is just and efficient. In our judgment, there can be no criticism whether in law or in the exercise by them of their discretion for the fact that having made that conclusion on the preliminary issue they came to the inevitable conclusion that the entire applications were bound to fail and therefore was proper and appropriate that they should be dismissed at that point.
10. In his submission to us, Mr Ibekwe has sought to argue that any contractual term such as the tribunal found was contrary to s. 203 of the Employment Rights Act 1996, we can find no merit whatever in that argument. The contract of employment contains a disciplinary procedure, which contains provisions, which give the employer power in respect of the employee in proper circumstances. The tribunal having found that there was such a contractual power it is simply inconceivable that that could be contrary to s.203 of the 1996 Act.
11. As far as the other points which have been made. Equally, we can find no merit in any of them. In paragraph 15 the Employment Tribunal, very carefully, set out a sequence of decisions in descending order, each of which, in our judgment, contains no error of law and is based upon findings of fact which came. Therefore in so far as his arguments are based on that paragraph as well; we find nothing in them.
12. It therefore follows that for the reasons we have indicated, there is no reasonably arguable case on this appeal and therefore this appeal is dismissed at this stage of the proceedings.