United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK:

1. The appellant, Mr Paul, was a long-standing employee of the respondent at their Rochdale premises. He was, so an Employment Tribunal sitting at Manchester on 16th February 1999 found, employed as a motor mechanic in the service department there. He was so employed from 1976 until 1986, when he took an extended holiday. He then returned to work in that capacity from June 1987 until he ceased work on 23rd September 1998.
2. The background to his leaving the employment, so the tribunal found, was as follows. In the service department at the relevant time were six mechanics, including the appellant and a trainee. Mr Paul and the trainee were on a lower rate of pay, reflecting the greater skills of the other four mechanics. Next up the line was Mr Poscha, and above him was the service manager, Mr Barry White.
3. The type of work done in the workshop fell into two categories for present purposes; servicing and MOT inspections on the one hand and light mechanical work on the other.
4. The appellant worked on a bonus system. He could earn more in bonuses doing the servicing and MOT work than when doing light mechanical work.
5. Over a period of some months before 23rd September 1998 he had twice complained to his supervisors about doing light mechanical work.
6. On 23rd September the appellant completed his last job of those allocated to him by Mr Poscha in the morning by 2.30 p.m. He asked for further work. Mr Poscha asked him to work on a Sherpa van, which had failed its MOT inspection earlier in the day. Remedial work was required; then the van would have to be taken to another garage for the inspection to be redone. There was some urgency in the job. The appellant refused, saying it was not his kind of work. He was asked to clean up his work area. Thereafter, when he returned to Mr Poscha he was again asked to work on the van. Again he refused. Mr Poscha asked the appellant to go to see Mr White. The appellant refused to do so because he knew what would happen; Mr White would insist on his working on the van. At this stage there was a conflict of evidence between the appellant and Mr Poscha. Both agreed that what was said was that the appellant might as well clock-off and go home. However, each claimed that the other had used these words. The tribunal resolved that conflict in favour of Mr Poscha's evidence. The appellant had used those words. Accordingly, it could not be said that Mr Poscha actually dismissed him at that stage.
7. The appellant went home, saying to Mr Poscha, with whom he had had a good relationship:

"It has been nice working with you. Nothing personal."

8. It was common ground that the appellant was capable of doing the work on the van, which he had been asked to do.
9. The respondent expected him to return to work, but nothing further happened until the appellant wrote to the Company a letter dated 8th October 1998, in which he claimed to have been constructively dismissed.
10. That led to meetings between the appellant and Joy Charlesworth, the Group Personnel Manager, first on 15th October and later on 19th October 1998, when Mr White was also present. It was the appellant's contention that he was employed as a service mechanic. He objected to doing light mechanical work, which affected his opportunities to earn bonuses. The respondent rejected that claim. The appellant had been issued with a job description, which described him as a motor mechanic. He could be required to do light mechanical work and had done so on a number of previous occasions. In evidence before the tribunal the respondent produced a summary of 39 jobs done by the appellant since 1st June 1998. Of those, nine could be described as involving light mechanical work. Earlier examples in time, selected at random, were also produced.
11. The upshot of those meetings was that the respondent maintained their position that the appellant was employed among other things to do light mechanical work. They offered him his job back on that basis. They said they would review his hourly rate of pay. That solution was not acceptable to the appellant. He declined that offer, saying that he might become a taxi driver.
12. In these circumstances the respondent treated his employment as at end with effect from 30th September 1998 and paid him up to that date.
13. It was the appellant's case before the Employment Tribunal that the respondent was in repudiatory breach of contract. He claimed that he was employed as a service mechanic; he was being required to do work which he was not obliged to do under the terms of his contract and that in imposing that requirement, the respondent was in fundamental breach of the contract of employment. The tribunal rejected that case. They concluded that he could, contractually, be required to perform light mechanical work. Further, they held that he had no right to walk out of his employment after refusing to obey a lawful instruction. There was no dismissal, constructive or otherwise. His claim accordingly failed.
14. Against that decision, promulgated with extended reasons on 6th April 1999, the appellant entered a Notice of Appeal dated 14th May 1999, prepared by his solicitors, Singh & Co of Rochdale.
15. The case comes before us today for preliminary hearing to determine whether or not the appeal raises any arguable point or points of law which ought to go forward for a full appeal hearing. Notice of this preliminary hearing was sent out on 19th August 1999. Shortly before that date, we see from the file, a member of the Appeal Tribunal staff was in contact with the appellant who said that there would be no attendance at the preliminary hearing but written submissions only would be forwarded. In the event, no such written submission are before us, but we have considered the grounds of appeal set out in the Notice of Appeal prepared by the solicitors.
16. The first ground of appeal is a contention that as a matter of law the respondent was in breach of a fundamental term of the contract by insisting that the appellant carried out light mechanical work. Although the appellant was described in his contract as a motor mechanic, he was in fact a service mechanic. That factual issue was considered and determined by the Employment Tribunal. They found that he was not employed as a service mechanic, but as a motor mechanic in circumstances where he could be required to do light mechanical work. Accordingly we reject the first ground of appeal, which seems to us to go to a question of fact only and not one of law.
17. The second ground of appeal is a complaint that the tribunal failed to take into account, adequately or at all, the respondent's failure to properly implement the Company's grievance procedure as set out in the handbook. Our first difficulty with that contention is that nowhere in the tribunal's reasons, nor indeed in the Originating Application in this case, is any argument put forward that the employer was in fundamental breach of contract by not carrying out the necessary stages of the contractual grievance procedure. It is well established that new points will not be permitted on appeal which were not taken below. See Jones v Governing Body of Burdett Coutts School [1998] IRLR 521. However, even if the point had been taken below, we cannot see that on the facts as found by the tribunal, it would have had any prospect of success. After the appellant walked out on his job on 23rd September 1998 he then went to meetings on 15th and 19th October where his grievance, real or imagined, was fully ventilated before the Group Personnel Manager, Ms Charlesworth. Although not resolved to his satisfaction, in the sense that the respondent maintained its position, we cannot see that any further steps could properly be taken by the respondent. For these reasons we dismiss the second ground of appeal also.
18. Accordingly the appeal must be dismissed.