United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR I F ATACK (Solicitors) Messrs Kidstons & Co Solicitors 1 Royal Bank Place Buchanan Street Glasgow G1 3AA


 


JUDGE HICKS QC:

1. Mrs Bergman was employed by the appellants, 3M Neotechnic Ltd, as a valve assembly operator. She had been in their employ from 20th February 1978 until she was dismissed on 13th July 1998; she had over 20 years of service. By common consent she was an entirely admirable and, indeed, valued employee.
2. The circumstances in which she came to be dismissed arose out of the fact that the employers operated a two-shift system from 6 a.m. to 2 p.m. and 2 p.m. to 10 p.m. which Mrs Bergman was able to manage, notwithstanding that she had to care for her husband, because it was possible, with some assistance, to deal with the day-time situation, but it would not have been possible to do so at night. It so happened that her husband himself had been a long-term employee of the same employers, but was now disabled and required constant attention to the extent of her needing to get up during the night to attend to his needs. In those circumstances the employers' decision to change to a three-shift system, which was a decision that they came to at the beginning of the events which immediately precipitated her dismissal, was one which faced her with a serious and indeed insuperable dilemma, as she saw it, and as indeed the tribunal and the employers accepted. She simply could not work nights. So she was unwilling to agree to this change.
3. There was an extended period of discussion after the first raising of the matter in March 1997. For a time the matter was dealt with by her being given temporary work, it would seem after the rest of the staff had gone onto three-shift working, putting right defective items. The reason why that was regarded by the employers as merely a temporary expedient was that they could get that work done more cheaply by an outside agency and did not wish to employ their own staff on it. That gave a temporary respite to the collision course on which the employers and Mrs Bergman were otherwise embarked, but it came to an end. The employers not being able to find any other solution and Mrs Bergman not being willing or, indeed, able to embark upon three-shift working, she was finally told that she must do so or be dismissed. Mrs Bergman, not being willing to do so, was dismissed.
4. The Employment Tribunal dealt with her application for unfair dismissal and found those and other facts. They dealt with the issues before them in this way. They first had to decide what was the reason for the dismissal and they accepted the employers' submission that it was "some other substantial reason", to use the wording of s. 98 of the Employment Rights Act 1996, and therefore a potentially fair reason. The tribunal therefore had to consider the further question whether the employers had acted reasonably in acting on that as the reason for dismissal. The tribunal approached that in this way. They said, having dealt with the reason:

"8. The Tribunal then turned to consider whether the respondents acted reasonably in treating that reason as a sufficient reason to dismiss the applicant, which depended on whether, in the circumstances, including the size and administrative resources of the employer's undertaking, the employer acted reasonably or unreasonably in treating that as a sufficient reason for dismissing the employee, and that is to be determined in accordance with equity and substantial merits of the case. …"

In expressing the question before them in that way, they were of course following closely the words of the statute, and in particular s.98(4), and so far their reasons are manifestly not open to criticism. The tribunal then recall, in effect, what already had been found by them in their recital of the facts:

"… the only possibility for the respondents to continue to employ the applicant would have been for them to permit her to continue to work, … in reworking the components produced by the respondents, work normally normally done by an outside agency. The Tribunal appreciated the company's reasons for not wishing to disturb their existing arrangements and to bring that work inside the company, but they considered that, in the circumstances of the case, this was something that a reasonable employer should have done. …"

The tribunal then recite further facts which bear on that, such as the length of Mrs Bergman's employment, the reasons why she was unable to engage in nightwork and so on. At the end of paragraph 8 they say as to the alternative work:

"… The work was available; it was being contracted out; and while there might have been slight additional expense in the applicant continuing on her present salary, doing the work which was otherwise given to an outside contractor, apparently on cheaper terms, in view of the applicant's long service and that of her husband and the appreciation of the quality of her work, the Tribunal felt that a reasonable employer could have been expected to make an exception in her case."

5. The criticism of that centres on the words, twice repeated, which refer to what a reasonable employer should have done or could have been expected to do. Mr Atack for the appellant employers has reminded us of the familiar formulation of the test in the authorities that the question is whether the employers' conduct was within the range of the responses open to a reasonable employer. The issue is whether there is an arguable case that the tribunal misdirected themselves and applied the wrong test.
6. We first remark that the only absolutely binding question is: did the tribunal comply with the statute. Certainly the tribunal had reminded themselves in precise terms of the question that the statute poses at this point in their decision-making. Phrases such as "within the bracket or range of responses open to a reasonable employer" are not statutory, valuable as they are in guiding tribunals as to the way in which they should approach the matter. Human nature and the English language being what they are, tribunals will tend to express themselves in a wide range of ways and we remind ourselves that it is not for this tribunal to be over-pernickety or over-precise in analysing and judging the words used. If a tribunal says "we would not have dismissed the employee in these circumstances" it is pretty plain that they are substituting their own judgment, and substituting their own judgment is the gravemen of the criticism that is levied against the tribunal in this case. They did not say that. If they had said "this employer should not have dismissed in these circumstances", that may show pretty plainly that they are in substance substituting their own view. If they say "this was not within the bracket of the responses available to a reasonable employer", they are quite plainly putting themselves firmly within the traditional expression and are unlikely to be open to criticism unless elsewhere they betray that they are only saying the right words without actually approaching the matter in the right way. If they say "this was something that no reasonable employer should have done", although they are expressing themselves in a different way, they are in substance applying the test whether this was within the reasonable bracket. Here, in this tribunal's decision the words are:

"8. … this was something that a reasonable employer should have done."

It seems to us that it would go against the authorities which require us not to be over- inclined to use of the fine toothcomb if we said that they had forgotten what was the substantive nature of the test that they should be applying.

7. It is true, and this is the second level of criticism, that they are concerned apparently to be making a positive judgment not just as to what the employer should not have done or what any reasonable employer should not have done, but what any reasonable employer in this case should have done. But that has to be seen against the background of the facts of this case. It simply was common ground that there was no other alternative. The choice before the employers was not an open-ended one, dismiss or take up some other wide range of possibilities. The employers themselves presented the case on the basis that the only alternative was the one being discussed by the tribunal. In all those circumstances, we do not consider it arguable that this tribunal, because of that particular form of words which I have quoted, erred in law and failed to direct themselves in accordance with the statutory test as explained in the authorities. The appeal is therefore dismissed.