United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS V T DSANE (of Counsel) Pemberton Williams & Associates Employment Law Consultants suite 29 Embassy House West End Lane West Hampstead London NW6 2NA
For the Respondent	MR PHILIP THORNTON (of Counsel) Group Legal Services British Telecommunications Plc BT Centre 81 Newgate Street London EC1A 7AJ


 


JUDGE WILCOX

1. This is an appeal against the decision of an Employment Tribunal sitting at Stratford on 15 and 16 October and 21 December 1998. The Appellant alleged that the Respondent unfairly dismissed her. It was held by the Tribunal that the dismissal was a fair dismissal.
2. The appeal comes before this Tribunal on the limited question identified at the preliminary hearing. It arises out of the fact that the Appellant was employed by the Respondent having been transferred from earlier employment with the Respondent and her time keeping was called into question. For ten years she served as secretary without complaint with the Respondents. She then sought a job with the Respondent in a further capacity serving a team headed by Mr Bailey. That job was advertised internally, it was in the Respondents Government Investigation in Group Finance. It was a requirement of the job not advertised that she should agree to start at 9am in the morning. She in fact had the job given to her after application and interview.
3. It is found by the Tribunal that she agreed to a 9am start. She had in her earlier employment with British Telecom and in this employment been subject to the benefits of a Collective Agreement relating to work time. That Collective Agreement permitted an employee to work flexible hours providing a core time was observed, that being between 10am and 3pm. It is not controversial that Collective Agreement provided that should there be any alteration to the application of the Collective Agreement there would be due consultation before that was done. Consultations at various levels were sensibly provided for. In exceptional circumstances the Collective Agreement could be overridden. So far as the status of the Collective Agreement was concerned it was not submitted before the Tribunal that the agreement itself was legally enforceable. This is an agreement to which section 178 of the Trade Union Labour Consolidation 1992 Act applied. There is nothing within the agreement that indicates to the contrary. It was not urged before us or before the Tribunal below that the Collective Agreement was incorporated into the contract of employment of the Appellant.
4. The status of the Collective Agreement is a matter of some importance. It is a matter that in good industrial relations must be taken account of and must at all levels be given weight to. We have heard a submission on behalf of the Respondent of the weight that should be given to it here is one which he characterises as trivial. We understand why he makes that submission; it is perhaps an infelicitous use of that term. We do not think that any view of a Collective Agreement of this type of nature can or should be characterised as trivial. Nonetheless we understand his submission when he says that looking to all the factual matters give rise to the dismissal and to whether or not the dismissal should be characterised as fair or not, in relative terms in this case it did not have the overwhelming importance that it might have had in other cases.
5. So far as the Tribunal below are concerned it is clear they looked at the issue of dismissal fully and in the round. As far as the Collective Agreement was concerned that was clearly taken account of. The weight that they gave to that consideration is essentially a matter for them. It is not for us, I have already indicated our view of Collective Agreements doubtless in different circumstances and having regard to different applications a Tribunal at first instance may have a different view. We cannot say the view that they adopted on this occasion was a perverse approach. At paragraph 23 of the decision they considered the question of fairness and took into account its finding that a 9am start was agreed at the initial interview. That was the basis upon which Miss Corrigan, the Appellant was promoted into the post. They noted a general contractual requirement upon her to attend as the need of the service demanded.
6. They took into account that the flexi time agreement provided that the scheme should be suited to the individual needs of the office concerned and they were satisfied that the requirements of the office there was such as to make a requirement of a 9am start reasonable.
7. They point to subsequent disciplinary proceedings wherein the union representative Ms Cramshaw and the Appellant accepted that there had been agreed a 9am start and was given leeway to electronically record her attendance up to 9.15am. They went on to recite the catalogue of breaches culminating in a series of warnings and a 12 month dismissal warning in July 1997. In the light it seems that her punctuality did not improve.
8. It seems to us therefore, turning to the question that was left to this Tribunal, that an analysis of the Tribunals findings demonstrate that the common sense of the situation matched up with the requirement of the agreement. Firstly as to there being an expressed agreement by the Appellant herself that it should be a 9 o'clock start. Secondly, that having the advice and representation of the Trade Union Representative, Ms Cramshaw, it is clear that her own union went along with that state of affairs. It is clear that application of the agreement as perceived by the Respondents, was then not challenged until some 17 months later.
9. In all the circumstances we find having had the benefit of argument on both sides in this full appeal that there was no reason of law that would warrant us interfering with the decision below, neither can it be demonstrated that there is a perversity of finding. Each case turns upon its own facts; this case did as well. We find that there was a sufficiency of evidence before the Tribunal to come to their findings. Their findings are findings we cannot interfere with, the direction of law we think was appropriate. We dismiss this appeal.