United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A LYNCH QC (of Counsel) Instructed by: Messrs Blatchfords Solicitors 192 Northolt Road South Harrow Middlesex HA2 0EN


 


MR JUSTICE NELSON:

1. This is a preliminary hearing seeking leave for a full hearing of an appeal by Messrs Blatchfords Solicitors against the decision of the Employment Tribunal on 4 January 2000 when by unanimous decision it found that complaints by various employees, Ms Berger, Ms Blaize, Ms Fontana, Ms Freeman, Ms Humprey's, Ms Ozhasoglu and Ms Sims that they had been unfairly dismissed were well founded, that they were dismissed by reason of redundancy was well founded and that they were wrongfully dismissed in breach of their respective contracts of employment was well founded. In respect of each of those decisions, a full hearing of an appeal is sought. Mr Lynch who has presented the matter on behalf of the Appellants today seeks to put forward some substantial number of grounds, set out in paragraph 8 of the notes of appeal. We having considered those are satisfied that this an appropriate case to allow this case to go to a full hearing, in respect of all grounds, save that set out at 8 (1) of the grounds, of appeal.
2. The basis of that particular ground is this; the Employment Tribunal held that the Appellant was in repudiatory breach of contract in asking each of the Applicants to work at South Harrow as opposed to Holborn where they had been working and in repudiatory breach of contract, by so asking because of the change in travel arrangements. In ground 8 (1) Mr Lynch submits that the Employment Tribunal made no express finding in relation to the travel times provided in evidence from London Transport in a statement from Roderick David Allen Williams. He accepts that in paragraph 20 of their decision the Tribunal made reference to the fact that they had been given consideration to and I quote:

20. "Different information produced from London Transport information."

but, he submits do not adequately explain their decision and their preference of the evidence of the interested parties, namely the Applicants. The differences in time might work out as between for example in the case in the case of the Ms Berger between 3 hours and 4 hours travelling time.

3. There is in accordance with the authorities a need to be able to understand the reasoning given by an Employment Tribunal and there is a duty to give an explanation to enable the parties to know why they have won and why they have lost and the judgment of the Tribunal does not do so in this particular case. It does not for example explain why it should have preferred the evidence of Ms Berger, who only made what would have been the new journey for her on 1 test occasion as opposed to rejecting the London Transport evidence obtained by Mr Williams, a legal Assistant from London Transport, based on time table times. We are however satisfied that the Employment Tribunal gave proper consideration to the evidence before it. It considered in depth the evidence of each of the Applicants. It plainly had regard to and considered the evidence from London Transport information by that reference in paragraph 20 and it refers itself to having spent many hours poring over maps of the London Underground system. I do not propose to repeat all of the details of that here.
4. In paragraph 18 of their decision, whilst we accept that it is incumbent upon an Employment Tribunal to give explanations so that the party may know why it has won or lost any particular issue and to resolve any substantial issue of fact between the parties, we are satisfied that the Employment Tribunal did in fact do so in this case and its decision cannot be criticised. No error of law arises and ground 8 (1) should not go to a full hearing. In respect of the balance of the grounds, under 8 (2) it is said that the personal circumstances and idiosyncrasies of individual Applicants, including their evening hobbies were taken into account in deciding whether there had been a repudiatory breach of contract. Those personal circumstances were unknown to the employer and under the test in the case of Courtaulds Northern Spinning Ltd v 1) Sibson and 2) Transport & General Workers Union [1988] IRLR 305 the question that had to be decided was, was the new location within the reasonable daily reach of the home of the individual employee concerned, and the question: whether the request itself was reasonable was not a matter to be considered nor were special circumstances which had not been disclosed and known to the employer.
5. The Employment Tribunal in this case plainly did, at paragraphs 24 and 28 of its decision, take into account the personal circumstances of the Applicants. Whether or not it was right to do so in some instances is a matter which is open to argument, for example whether or not it is right for them to do so in circumstances where one of the Applicants was simply referring to an evening hobby in relation to a steel band. That it seems to us is a matter, which can properly be put in argument and should go a full hearing. Under ground 8(3) it said that the 1^st, 3^rd, 4th and 6^th Applicants were not entitled to 'Notice Monies' from 27 November 1998 when they were on notice from 9 September 1998, that their employment would terminate on that date, given their unwillingness to relocate their work to South Harrow. We regard that again as being arguable. Under 8 (4) it is said that having agreed to make the move to South Harrow from Holborn, Miss Blazie and Mrs Ozhasoglu then decided that they did not wish to make the move after all and withdrew their agreement. Mr Lynch submits that the Tribunal on the face of it at pages 45 and 17 and 19 plainly did find that these 2 employees had agreed to make the move, that that was a binding contract and they were not entitled to withdraw from it. That too is open to argument and we permit that to go to the full hearing. Grounds 8(5) and 9(4) relates to ex-gratia payments made, which it is said the Tribunal wrongly treated as not being ex gratia and failed to give credit for when they should have done. We regard those too being matters, which are properly open to argument. Under ground 9 (1) the Employment Tribunal said at paragraph 37 of its reasons:

37. "Whatever may have been the position when unfair dismissal legislation was introduced the position in modern industrial relations is that an employer does not act reasonably if it simply relies upon length of service as the only criteria in deciding who should be selected for redundancy."

6. Mr Lynch submits that insofar as that purports to state a rule which is binding it cannot be correct as no such rule exists and whilst there may be some circumstances, where it would be inappropriate to operate the last in, first out rule for example in relation to female employees who for family reasons have not served as long as male employees, there may be, nevertheless be some circumstances, such as the present where it is entirely proper and reasonable for LIFO to be the sole criteria. We are satisfied that that too is a matter which is properly arguable.
7. In relation to 9 (2) and 9 (3) it is said that in effect the Employment Tribunal were imposing their own views in place of the employers and that they are not entitled to do by stating, as they do, in paragraph 37, that Mrs Sims was an important person to the Respondent's practice and regarded as more competent and that stating that they could see no justification for excluding her as a part of the team, the Employment Tribunal were in effect substituting their own view. We think that there is a basis for saying that that can at least be argued before a full hearing. As a consequence, we rule that the matter should go to full hearing, except in relation to ground 8(1). A time estimate of 1 day and category B.