United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MATTHEW CHAPMAN (Of Counsel) Instructed by Lloyd & Associates 48 Onslow Gardens London SW7 3PY


 


JUDGE LEVY QC

1. We have before us this afternoon the Preliminary Hearing of an Appeal by A F Blakemore & Son Limited, ("the Appellant"), against a decision of an Employment Tribunal sitting in Birmingham on 15 March and 25 May 2000 when they unanimously held that the Applicant below, Mr Burton, was unfairly dismissed. Unhappily, the decision itself does not show appearances. We understand from Mr Chapman who appears for the Appellant today that each party acted in person. The Tribunal fixed the date of 16 June 2000 for the Remedy hearing. The Notice of Appeal against the decision was received by this Court on 11 July 2000 and as we said this is the Preliminary Hearing of it.
2. Put shortly, what the case was about is that the Applicant below was the sole parent of a family, his wife having died of cancer. The written terms of his employment had been varied, whether formally or informally, in our view, matters not so that he would not be required to work night shifts.
3. A director of the Company confirmed that the variation had been made on compassionate grounds and that he, the director, knew of it. The person making the variation, Mr Chaplin, was replaced by Mr Curtis who did not like the arrangement. As a result of that Mr Curtis sent a memorandum to Mr Burton whom he met on 22 April and the memorandum bears the same date:

"Dear Peter,

Re: Your Position in Computer Operations.

The terms and conditions of employment at A F Blakemore and Son Ltd reflect the 24-hour operation of the business. Consequently, the nature of the job in Computer Operations demands that operators perform work in shifts during unsociable hours. And the shifts might need to change at short notice to reflect changes in operations in the warehouse.

We expect staff to be flexible. But, in return we have to be fair by ensuring that any extra effort or inconvenience resulting from changes to working hours is shared equally by all operations staff.

If you cannot work the shifts:

Morning: 06:00 am to 11:30 am Monday to Saturday

Evening 16:30 pm to 11:30 pm Monday to Friday

Night: 11:30 pm to 06:00 am Monday to Friday

Or similar hours around these times,

I will be forced to review your position in Computer Operations.

Unfortunately, there is no day job in the Computer department that requires your level of skills.

I have discussed this with the Personnel Manager. She will endeavour to find suitable alternative employment in the company for you.

In the meantime, I would like to consider your position. We will review it again on

Friday 30^th April 1999 at 10:00 am (in my office)."

4. The next letter in the bundle, which was before the Tribunal is one dated 7 May, also a memorandum which reads:

"On Thursday 22^nd April 1999 I interviewed you about the requirements for shift working in Computer Operations. You stated during that interview that you were unable to comply fully with these requirements. I warned you then that I would be forced to review your position if you were unable to comply. You were handed a written statement of the position.

On Friday 30^th of April 1999 I reviewed the situation with you again. You repeated that you were unable to comply with Computer operations shift pattern. I warned you then that I would have to find another person to replace you.

On Tuesday 4^th May 1999 I held a final interview with you. You again stated that you could not comply with the requirements for shift working in Computer Operations.

I am now compelled to notify you that I intend to terminate your employment in Computer Operations one month from the date of this letter.

Up to this point you have supported the department very well indeed, so I will make every effort on your behalf to find suitable alternative employment in A F Blakemore."

5. Mr Burton replied to that letter on 19 May but it is not necessary for us to set out that letter. He was dismissed and commenced these proceedings in which his complaint was upheld.
6. In a lengthy Notice of Appeal, the Appellant claimed that the Extended Reasons of the Tribunal made findings for which there is no evidential support, that the Employment Tribunal failed to take account of relevant evidence and like points. When all of us read the papers initially we were of the view that there were within the Extended Reasons facts found which fully supported the decision.
7. At paragraph 3 of the Extended Reasons it is stated that Mr Burton's case for unfair dismissal was partly summarised in the letter which he wrote to the Respondents on 19 May 1999, a letter to which we have referred but we have not set out. It continues "Mr Burton maintained" and then it sets out what must have been the evidence given by Mr Burton at the Tribunal.
8. It then sets out the evidence, which was given by at least some of the witnesses who gave evidence for the Respondents.
9. It is submitted by Mr Chapman that there is a failure in the Reason s (and this may be right) to reflect the fact that a Miss Kelly gave evidence. It is a pity that the Tribunal did not say from whom it heard evidence and what evidence was accepted and rejected. It is, however, clear from the Extended Reasons of the Tribunal that the Tribunal were satisfied that the Appellant had not behaved as a reasonable employer would have done. Those sitting on my left and right believe that when there is a one-parent family working at premises and there has been a variation of his contract of employment, however informal, that his hours are to be looked at sympathetically before there should be a change in agreed arrangements. That should be made clear to the employee so that he can adjust his position as proposed
10. The conclusion of the Tribunal was:

"In such circumstances the Tribunal unanimously decided that Mr Burton had been unfairly dismissed since:

(1) He had agreed shift pattern with the Respondents, which enable him to see his children at night

(2) Mr Curtis was fully aware of such arrangements but chose to ignore it

(3) The Respondents failed to consult fully with Mr Burton or to propose let alone agree alternative arrangements with him from 22 April 1999 until dismissal on 7 May 1999

(4) Mr Burton's son continued to be traumatised by his mother's death. The son's condition was not disputed by the Respondents

(5) The other members of Mr Burton's team did not in any event work night shifts other than for a short period after introduction."

11. The Reasons went on to state that the Tribunal had in mind Hollister v The National Farmers Union [1979] IRLR 238 and the provisions of S98(4) of the Employment Rights Act 1996 which were set out.
12. In the course of his submissions, Mr Chapman referred us to the decision of the panel of this Tribunal headed by Arnold J in Glitz v Watford Electric Co Ltd [1979] IRLR page 89 to support a submission that variations of the contract had to be fully explored.
13. These findings were made that there was a clear agreement by the Company to vary at least, on a temporary basis, the contract of employment which it had with its employee. We see nothing in the decision in Glitz inconsistent with the course taken by the Tribunal. We have also been referred to the decision in Meek v Birmingham City District Council [1987] IRLR 250. It could be that reasons by the Tribunal could have been more fully expressed but we are satisfied that the Tribunal did discharge duty on it so that the Appellant here, the Respondents below, knew why it had lost. It lost because it did not deal with its employee as a reasonable employer would have done before it chose to dismiss him. That is why the application succeeded.
14. In the circumstances we cannot think that this Appeal has any hope of success. Accordingly we will dismiss it at this stage.