United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R GREENING (of Counsel) Instructed By: Mr M Lambe Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ
For the Respondents	MISS S GARNER (of Counsel) Instructed By: Mr A O'Dea Legal Adviser London Electricity Plc Templar House 81-87 High Holborn London EC1V 6NU


 


JUDGE D PUGSLEY: This is an appeal from the majority decision of the London (North) Employment Tribunal when they dismissed the Appellant's claim that she was unfairly dismissed.

1. The Applicant had commenced work with the Respondent Company in September 1990. According to the statement she made in the appeal to ACAS she commenced employment in the Information Centre section of the Production Services Department with a grade of PAG1. She understood that her job was that of Junior Analyst and her duties were to install software and hardware and provide support and training to end-users. She was subsequently upgraded to PAG2 and then PAG3 and at the time with which the Tribunal was concerned she was working in the PC development team of the Desktop Services Department. According to the findings of fact made by the Employment Tribunal in the summer of 1997 London Electricity was reorganised following a take-over by the Energy Corporation. A new Information Technology Director was appointed and a new structure was put in its place. The issue in this case arises from the fact that the Appellant was asked to transfer her job function to the year 2000 team that was concerned with the implementation of such changes as were necessary for the new millennium. The Applicant had been working under a Mr Mawford. Under the new structure plan the section headed by Mr Mawford was not shown on the new plan. Mr Mawford retired at broadly the same time as the Applicant's position was under review. The central contention of the Applicant was that the request was outside the ambit of her contractual duties and requirements.
2. We accept that those who were involved in a Tribunal hearing will know far more about the factual background and what may be described as "the chemistry of the case" than any appellate tribunal which only has before it the findings of fact which are set out in the Decision. In this case at the Preliminary Hearing of this Tribunal no order was made for the Chairman's Notes.
3. The central plank of Mr Greening's argument is that, in this case the findings of fact made by the Tribunal were woefully inadequate. This was a phrase that was mentioned more than once in Mr Greening's oral submission to us. He relies on the well-known passage in the judgment of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250 at 251. In his judgment Bingham LJ says this:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."

4. In this case we have all been concerned at the extent to which Mr Greening has been referring us to matters which do not form part of any findings of fact of the Tribunal's decision.
5. In particular, Mr Greening claims the Tribunal failed to deal with the principal important and controversial points and issues and make clear findings of fact about the difference between what Mrs Lawes was doing in the Development Project and the work she was offered in the Year 2000 Department. Mr Greening submits that the Tribunal failed to make clear findings on issues in relation to:

(a) the circumstances of which and the reasons why the change in work was required;

(b) the method and procedures whereby the change was imposed and why the Applicant was forced to change her work whilst her colleague Mr Roy remained in post and

(c) the extent to which there was a fundamental difference between the job which she was doing and the job to which she was to be transferred.

6. Mr Greening contrasts the detail with which the minority member sets out his findings and the more generalised findings of fact made by the majority. Mr Greening notes that the Tribunal does not set out the evidence of Mr Mawford and Mr Roy. In particular, Mr Greening complains that there is no mention in the decision of Mr Mawford's evidence that to transfer the Applicant was like requiring a Consultant Surgeon to clean up after the operation. We wish to make it absolutely clear that in no way are we casting the slightest shadow upon Mr Greening's integrity in saying that this colourful phrase did not surface in the dissenting member's analysis and we are bound to assume, if Mr Greening's recollection is accurate, the phrase did not have the resonance at the hearing which he is now seeking to give it at this appeal.
7. The members in this case wish to make clear their concern at the increasing propensity for advocates to seek to re-argue on appeal a case which they lost on the facts before the original Tribunal. That sentiment has received support from the House of Lords in the case of Piglowska v Piglowski [1999] 3 All ER 632 at 643 in the speech of Lord Hoffmann.

"… First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc and Madeva plc (1996) 38 BMLR 149 at 165:

'The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.'

The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. … An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself. …"

8. It is certainly true that the dissenting member went into considerable detail in recording the reasons for his dissent. However in our view the majority adequately set out the reason for their decisions. It should be noted that there was in this procedure an additional stage in the appeal process whereby under the agreement between the Applicant's trade union and the employers, the issue was referred to an independent person appointed under the Disciplinary Procedure contained in the Electricity Company agreement. In this case the independent person was a Professor J. Clark and both the Respondents and the Applicant were represented and were allowed to call witnesses before Professor Clark. At paragraphs 23, 24 and 25 of their Decision the Tribunal say this:

"23 The conclusion of Professor Clark was that he supported the Respondent's view that Mrs Lawes' experiences and knowledge of PC systems and software in London Electricity would have been of value to the 'Year 2000' team headed by a manager newly recruited by the company, and that the duties she was asked to carry out on a business critical project were within the range of her capability and competence. He noted that other major terms and conditions of her employment such as salary, hours, location and grade were to remain unaltered. It has never been in dispute that prior to the change the Applicant was working from home for reasons personal to her and that under the changes she could continue to do so.

24 Professor Clark concluded that given that the Applicant had on four separate occasions refused the company's compromised offer he construed that as a persistent refusal to comply with a proper instruction and upheld the penalty of dismissal.

25 This Tribunal does not disagree with those findings of Professor Clark."

9. In these circumstances we do not consider that it can be said the Tribunal did not set out their reasons so that the parties could understand the basis of the decision. The majority decision did incorporate the conclusions of Professor Clark and we see no reason in this case to allow the appeal on the ground that the Tribunal have not complied with the dicta of Bingham LJ in the Meek case.
10. Although the main thrust of Mr Greening's argument before us has been ground 4, namely that the Tribunal failed to provide an adequate account of its basic factual findings and the reasons leading to its conclusion, leave was given to argue ground 1 and ground 2, namely that:

(1) The Tribunal erred in law in finding the terms of a joint national agreement were incorporated into her contract

(2) That the Tribunal were wrong to imply such a term.

11. It is common ground between the parties that the issue of whether the new position was within the ambit of the contractual obligations does not determine the position. As His Honour Judge Peter Clark put it in the judgment in the preliminary issue:

"… 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."

12. We do not consider that this is an appropriate case in which to hack through the tangled undergrowth of the various decisions on the incorporation of terms of a collective agreement into the terms of an individual contract. The precise jurisprudential basis upon which collective agreements can be incorporated into individual contracts is a vexed one: the arguments for incorporation is often the pragmatic one and the terms, in the words of Professor Kahn Freud, become crystallised custom.
13. In paragraph 12 of the decision the Tribunal set out the terms of paragraph 5 of the section headed "General" in the Joint Agreement:

"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."

14. The majority of the members of the Tribunal found that the new agreement was incorporated into the Applicant's contract of employment. In paragraph 13 of their decision the majority say that the incorporation took place 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. They accepted that in this case the new terms, which came out in the new collective agreement, were to the advantage of the Applicant and that she did in fact accept the new holiday terms, a new wages and grading set out in the new agreement. At paragraph 14 the Tribunal set out their position in this way:

"14 Even if that were wrong, this Tribunal finds that the requirements of paragraph 5 set out above are little if no different from what would be incorporated into any contract of employment and particularly in the 1990s when there are enormous changes to methods of work and in particular the effect on employees on new computerised systems. This is particularly so in the field in which the Applicant was involved, namely computers and their application to the London Electricity Company."

15. Subject to the caveat that the Tribunal probably meant "implied" rather than "incorporated" in paragraph 14, this is a conclusion with which the industrial members of this Tribunal emphatically agree. Lawyers and Personnel Managers are uncomfortable with the old description of the employment relationship in terms of master and servants and regard that vocabulary as antiquated as its stereotyped concepts; it conjures up of the dismissal of the butler and the laundry maid for some misdemeanour. Similarly, the discussion of contracts and obligation must recognise employment relationships have changed: their context is no longer inevitably that of the mine or the factory with ranks of the workforce carrying out identical functions which can be clearly recognised by both management and the workforce. Precise job descriptions become rapidly obsolescent in the fast changing world of computerisation. Tribunals and Courts have long recognised the contracts of employment have a dynamic of their own. The ledger clerk often becomes computer operator, sometimes rapidly and sometimes over a period of time. Neither an employee nor a business undertaking has an inalienable right to defy changes.
16. This Company had a requirement to eliminate the problems which the millennium might cause to their computer programs. It is true that the majority do not set out in detail the specifications of that new job but they do, as has already been pointed out, endorse the conclusions of Professor Clark.
17. Whilst it may well be that the Applicant perceived the job as being less interesting and carrying less status than her previous job (a view with which the dissenting member agreed) it was open for the majority of the Tribunal to agree with the analysis of Professor Clark which has already been referred to. In considering the question of reasonableness the Tribunal were entitled to take into account that the fact the Applicant had refused a compromise suggestion made by the employer that she should try the new position for three months and the position then be reviewed.
18. This was clearly a difficult matter for the Tribunal and one of the members of the Tribunal was persuaded by the employer's arguments. At the end of the day, we do not consider that there is any error of law in the decision which the majority reached. We cannot accept that this is a case in which the decision which the majority reached was not a permissible option on the evidence before them.
19. In paragraph 18 the Tribunal posed the issue in the following way:

"18 In her closing speech Miss Garner, Counsel for the Respondents, referred us to the case of Chubb Fire Security Ltd v Harper [1983] IRLR 311, a case in the Employment Appeal Tribunal. We have taken note of the requirements in that case and have put to ourselves the appropriate question, namely whether the employers were acting reasonably in dismissing the employee for her refusal to enter into the new contract. In answering that question we have considered whether the Respondents were acting reasonably in deciding that the advantage to them of implementing the proposed changes outweighed any disadvantage which we should have contemplated that the employee might suffer."

20. We consider that the Tribunal asked the right question; that they reached a conclusion that was open to them. Indeed, for the reasons we have given we consider it was a permissible option for the Tribunal to decide that this was not a breach of contract in any event. For these reasons we dismiss this appeal.