United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS NAOMI CUNNINGHAM (of Counsel) Instructed By: Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ
For the Respondents	MR P WOODHOUSE (Solicitor) Instructed By: Messrs Bond Pearce Incorporating Cartwrights Solicitors Marsh House 11 Marsh Street Bristol BS99 7BB


 


MR JUSTICE MAURICE KAY:

1. This is an appeal from a decision of an Employment Tribunal sitting at Stratford on 6 April 2000. The decision of that Employment Tribunal was that the appellant, Mr Charnetski, had not been unfairly dismissed.
2. He began to work for the respondent for a short period in 1987. He left for a while but returned on 17 January 1988. He was a night stockist at the Safeway Store at Hadleigh in Essex. When he returned to work in January 1988 he worked continuously until the dismissal which gave rise to the present case. The Employment Tribunal found that he had been issued with a Statement of Terms and Conditions of Employment on 26 September 1989, Clause 2 of which expressly required flexible working.
3. A further Statement was issued on 3 June 1996. Like the earlier one it was unsigned and undated by the appellant. Under a Clause headed "hours of work", it stated:-

"Your normal working week will be 30 hours per week. At locations where hours vary, details of your actual hours of work are set out at least two weeks in advance and either posted on the Schedule Board, or notified to you personally. These hours are subject to reasonable alteration by the Company according to the needs of the business. There may be occasions when you will be required to work additional hours over and above your normal working hours, payment for which is detailed in the Handbook."

4. By that time, the appellant had reduced his hours of work by agreement, it seems because of his involvement in a business venture of his own at the weekend. We shall come back to that. Also by that time there had come into force the Sunday Trading Act 1994. Part of the statutory provisions that were introduced by that Act was designed to protect the position of shop workers. In August 1994, under a document headed "Sunday Trading Act 1994", Safeway wrote to its staff in general in these terms:-

"As a result of the above legislation which affects contractual Sunday workers, and is effective from 26 August 1994, the Company wishes to re-iterate the voluntary nature of your Sunday working and would remind you that you are not compelled to work on Sundays."

5. It is a finding of fact from the Employment Tribunal that the appellant knew that he could not be compelled to work between midnight on Saturday and midnight on Sunday. That statutory protection is to be found in Part 4 of the Employment Rights Act 1996 and section 101 which provides in subsection (1):-

"Where an employee who is –

(a) a protected shop worker or an opted-out shop worker, or …

is dismissed, he shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he refused (or proposed to refuse) to do shop work … on Sunday or on a particular Sunday."

6. It was in June 1996 that the appellant reached agreement with Safeway for the reduction of his hours from 39 to 30. The Employment Tribunal found that that was designed to:-

"to keep all day on Saturdays and all day on Sundays clear for his own business activities selling fresh fish at car boot markets."

7. At the time, Mr Wade, the Store Manager wrote:-

"It must be stressed that if required you would have to work Sunday and Friday in the event of staff shortages, sickness or holidays."

8. The Employment Tribunal found that the combined effect of the evidence of June 1996 was that Safeway could require the appellant to work through Friday night to Saturday morning and, subject to the appellant exercising his lawful right not to work any time on a Sunday, roster him to work the shift through the early hours of Monday morning until the arrival of the Monday dayshift.
9. In the early autumn of 1998 Safeway introduced something called "Safeway Replenishment Programme ("SRP"). The expected operational gains of the SRP system included better availability of stock with no gaps on the shelves and fresher produce as well as various other benefits. The material significance of SRP in the present context is that it involved deliveries to the store over 7 rather than 6 days a week and consequentially required a night crew to be present 7 nights a week rather than 6 as had been the position previously. This was something of a controversial issue with the staff and a number of meetings took place. Initially they were meetings between members of the management and groups of employees who would be affected by the change. One of the members of management was Mr Kevin Heather, the Replenishment Manager at Hadleigh. In a meeting that he held with staff there was noted the comment of the appellant to the effect that he had commitments at weekends. The note then states:

"Willing to do Friday and Sunday if there is a problem. Works for himself at weekends Sat/Sun, fresh fish stall in market."

10. The consultation and negotiation process continued. On 27 November 1998 the appellant was recorded as being "unwilling". That was when he was being considered as part of a group.
11. The next significant meeting was on 26 April 1999 when the appellant met with Mr Heather. We have contemporaneous notes that were made by a member of staff at that meeting. The accuracy of them is not disputed in any way. They record the appellant as expressing his willingness to do Friday and Sunday shifts in the event of problems. We should add that by Friday is meant the shift that starts on Friday night and goes into Saturday morning and by Sunday is meant the shift that had originally started at midnight on Sunday but was soon to be brought forward to 8pm on Sunday and go into Monday morning. The appellant assured Mr Heather that the main reason for his wanting to restrict his availability at the weekends was connected with his fish business.
12. The two men met again on 26 July 1999. Once again reliable notes were taken by a member of staff. They include this quotation from Mr Heather;

"We have spent time holding consultation meetings with you regarding the implementation of SRP and the resulting changes of work practices. As a result you are required to be available and fully flexible over 7 nights a week. As such I am giving you due notice as from 22 August that I require you to be fully flexible over 7 nights. If you are not available or prepared to do this you will be terminated from 21 August from your employment with the company. Formal notice will be confirmed in a letter which will also contain" and the notes go on to mention various detail."

13. Clearly the appellant was not happy with that ultimatum, for such it was. A little later in the meeting the following is attributed to Mr Heather:-

"However if you are prepared to reduce your (shifts) and you are fully flexible from Sunday to Friday inclusive then alternative arrangements can be made. This must come from you not from us. It is a decision you would have to make. The reduction in hours would be 10 reducing your shift to 20 of which you must be fully flexible to work any night from Sunday to Friday inclusive."

Clearly what was then being put to the appellant was that he must either work on a fully flexible 7 day basis which would require at least some Saturday into Sunday shifts or, if he were not willing to do that, then some compromise might be reached by reducing his hours overall from 30 to 20.

14. Following that meeting Mr Heather wrote to the appellant on 2 August. His letter states:-

"Due to changes with the introduction of SRP, it has become necessary for the schedules to be reviewed. As a result of this we require that your shifts become fully flexible between Sunday and Saturday inclusive and that Saturday becomes part of your working week. However you will not be required to work every Saturday, you will still be contracted for 30 hours per week. These changes will become effective from 22 August 1999. Failure to comply with this new contract will lead to your dismissal on 21 August 1999 and it is important that if you have any difficulties in complying with these changes that you speak to me immediately."

The letter went on to refer to a right of appeal to Mr Wade, the Store Manager.

15. It appears that the appellant availed himself of that avenue of appeal and on 16 August he met with Mr Wade. Once again reliable notes were kept and they are accepted by both parties as accurate. Mr Wade made clear that the Sunday shift, that is the one going into Monday morning, was to be brought forward to 8pm on Sunday. There was discussion between the appellant and Mr Wade about the appellant's weekend predicament. It is obvious from the notes that the appellant did not want to put himself in a position where he might be required to work over 2 nights at the weekend. The following is noted as having been said by Mr Wade;-

"Paul, you need to be totally flexible, it doesn't mean that you will work them all. Until we get the crew up to full level it is difficult to say. You only work 3 nights, it would be very unlikely you'd work Saturday and Sunday. We will have less people working on a Sunday night which will give more spread across the week. There may be more people who will prefer to work the weekends and not the weekdays. But we do need an agreement that you would be fully flexible."

16. That meeting did not produce a result satisfactory to the appellant. The follow up was a letter from Mr Wade to the appellant dated 17 August 1999. It stated:-

"Due to the implementation of the SRP programme, some changes have become necessary. The requirement to have a night crew who are flexible to work Sundays to Saturdays inclusive will enable us to have a professionally trained crew to work Saturdays, our busiest day of the week. It is for that reason that I have decided to uphold the decision of requiring the night crew to be flexible to enable us to fulfil the needs of the business."

The letter concluded with a mention of further right of appeal.

17. In the event, the employment of the appellant was terminated on 21 August although he did pursue an appeal to Mr Boynton, the Area Operations Manager, which produced no result satisfactory to the appellant on the 15 December.
18. That is the factual background against which the appellant claimed to have been unfairly dismissed.
19. The decision of the Employment Tribunal includes an accurate statement of the sections of the Employment Rights Act 1996 which bore on the case before them, particularly, at section 98 on unfair dismissal generally, and section 101 which we have already set out.
20. The conclusions of the Employment Tribunal are to be found in the 12 subparagraphs of paragraph 3 of the decision. Paragraph 33(1) was in this form:-

"33 Conclusions

(1) The Tribunal finds that the operative reason for dismissal was not related to the Applicant's protected position on Sunday working, but the Applicant's refusal to comply with a lawful instruction to work under the new regime of rostered weekend working. The regime would not have obliged him to work on Sundays if he elected to opt-out but would, at the very least, have required him to work through the Friday night/Saturday morning shift on a regular periodic basis. That is a reason relating to conduct and a reason within s.98(2) of the Act which may found a fair dismissal."

The Tribunal then adverted to the statutory tests before continuing in paragraph 33 (3) and (4) as follows:

"(3) In our judgment on a proper construction of the wording and effect of the flexible working hour provision in the Applicant's contract, the Respondent was entitled to unilaterally vary the pattern of working hours to 4 working days over a 7 day week.

(4) We reach this conclusion on the basis of the documentation before us which disclosed the intention of both parties to commit to flexible working, i.e. to any particular pattern of hours per day or days per week, varied from time to time at management's reasonable discretion to meet the needs of the business. The trend in supermarket retailing, a fiercely competitive and ever-changing industry, to 7 day trading is indicative of the need, evident even in the 1980's when the Applicant was first employed by the Respondent, to attract employees who are prepared to choose and commit themselves to working flexible and often unsocial hours."

The Employment Tribunal then noted that its conclusion that the respondent was entitled to vary the working hours was not the end of the story in determining whether the dismissal was fair. It was necessary to apply the criteria set out in section 98(4). The conclusion in relation to that was expressed as follows:-

"(7) We reject the contention that the central issue here was an unlawful requirement by the Respondent for the Applicant to work on Sundays, not least because in fact the Applicant's testimony was that he was willing to work in part during Sundays. We are satisfied that the Respondent would not have required the Applicant to work during Sunday hours at all, in contravention of the law, if he chose to exercise his legal right not to work on Sundays.

(8) The determinative issue was Mr Charnetski's inablity to work in accordance with the new roster whilst maintaining his self-employed fish-sale business at weekend car boot sales and his personal choice as to where his priorities lay. The Applicant's own business activities were not incompatible with his employment commitments to the Respondent so long as Safeways could accommodate his preferred days of the week, which they could not after the introduction of the necessary weekend working roster.

(10) In our judgment, the Respondent acted reasonably in all the circumstances in deciding to release the Applicant from their employment in order to appoint into the Applicant's team an employee who was able to commit to working the rostered hours and to undertaking a fair share of the team's periodic weekend working duties. The Respondent was not obliged to put the Applicant's own business interests above its own or above the interests of the Applicant's colleagues in equal allocation of unsocial weekend working."

That then was the reasoning of the Employment Tribunal.

21. On behalf of the appellant, Miss Cunningham seeks to advance two closely connected grounds of appeal. The first ground of appeal is to the effect that the decision of the Employment Tribunal that, "the operative reason for the dismissal was not related to the applicant's protected position on the Sunday working" was contrary to all the available evidence and was perverse. She submits that the shift from 9pm on Saturdays until 7am on Sundays was a real issue in the case. Indeed, she submits that it was the central issue. That shift includes some 7 hours of Sunday working. She submits that, on any view of the contemporaneous notes and the letters and the evidence of the witnesses, it is clear that the respondent was requiring the appellant to commit himself to some though not all Saturday shifts going into Sunday mornings. Whereas he had expressed a degree of willingness, albeit of an unenthusiastic kind, about working some Sunday nights into Monday mornings, he had not expressed the same willingness in relation to the Saturday/Sunday shift. Her submission is that the evidence is, when fairly considered, all one way. She relies in support of that submission on the passages of the contemporaneous notes of the meetings with Mr Heather and Mr Wade and the letters which followed them and from these she submits that it simply was not open to the Employment Tribunal to discard the appellant's position about Sunday working from its finding as to the "operative reason for dismissal".
22. On behalf of the respondent, Mr Woodhouse submits that whilst the conclusion contended for by the appellant may well have been a possible conclusion in the Employment Tribunal, it was not the only permissible conclusion upon the evidence and, in the circumstances, the decision of the Employment Tribunal was an available and tenable conclusion. He submits that the Employment Tribunal was properly concerned with identifying the principal reason for dismissal. On that basis the Tribunal was entitled to find that it was not a refusal to work Sundays or parts of Sundays. In support of those submissions, and seeking to sustain the argument that the decision of the Employment Tribunal was consistent with the evidence, he took us to the witness statement of Mr Wade which had been read to the Employment Tribunal as an important part of the evidence in the case. The parts to which he took us are to be found particularly in paragraphs 17 and 18 of the witness statement. At that point Mr Wade is dealing with his meeting with the appellant on 16 August 1999. The statement reads:-

"17. I asked him what he saw as a solution. He said that if he worked Friday night he would have to get up early on Saturday morning to do his fish business and then if he worked on Saturday night he would have to get up early on Sunday to do his fish business as well. He said he could not do all of them.

18. At this stage I was getting the feeling that there may be some difficulty in finding a solution. I felt that his primary commitment was to his own business over the weekend period and this was affecting the two nights that the Company may require him to work. I felt that he was resisting this strongly."

Discussions then proceeded to the Sunday night following which there was a short break in the meeting.

23. What is apparent from those passages, is that they explain little of what was in Mr Wade's and therefore the respondents' mind nor what was actually said about the issue with which we are currently concerned. Moreover, after the short break in the meeting, it resumed and the witness statement of Mr Wade continues with this passage in paragraph 20:-

"I said I was just looking now at the Saturday. At that stage he said he would not mind a fixed rota, by which he was meaning a fixed working pattern each week. As I understood it, this would still not include the Saturday night. I emphasised to him that he would need to be totally flexible but that would not necessarily mean working all Saturdays. At that stage he requested time to think. I emphasised that there was nothing definite at the moment and that we were going through a transitional state. I said we were currently recruiting. I said the other option available to him was to reduce one shift, which would have allowed the Company to recruit somebody to recover the Saturday night."

And later in paragraph 22 again dealing with the same meeting:-

"However, I would not have permitted him to totally absent himself from the Saturday night work without a reduction in his overall hours."

Again we make clear that all these references to Saturday night are to the shift beginning at 9pm on Saturday night and ending at 7am on Sunday morning.

24. Miss Cunningham's submission in answer to the approach of Mr Woodhouse is that, looked at as whole, from the respondents' contemporary notes and letters and the witness statement of Mr Wade, it is apparent that in reality the respondent was putting forward three possibilities. The appellant would either have to work with flexibility which would include some Saturday nights going 7 hours into Sunday mornings or have his hours reduced by a third or be dismissed. Her case is that the reasoning of the Employment Tribunal and particularly that found in paragraph 33(1) fails to take that reality on board and, as a result, is perverse in its conclusions.
25. In our judgment, paragraph 33(1) read by itself and in conjunction with other parts, including paragraph 33(7) and (8), does not deal adequately with the undisputed evidence in the case. At the end of the day the appellant was being told that he could only keep his job in its present form if he agreed to some Saturday night into Sunday morning shifts. In those circumstances it is impossible for us to escape the conclusion that that was at least a reason for his eventual dismissal. The decision of the Employment Tribunal does not acknowledge it even as a reason. It talks about "the operative reason" but in a context in which no consideration is given to the reason to which we have referred.
26. In these circumstances we have come to the conclusion that it was wrong and impermissible and perverse to omit a finding in relation to it and that, if it was to be rejected, to exclude an explanation for its rejection .
27. That it was a fundamental issue in the case is obvious and unavoidable. In our judgment, the Employment Tribunal's consideration of it vitiates its decision and we shall allow the appeal on this ground.
28. The second ground of appeal is to the effect that the Employment Tribunal erred in characterising the reason for the dismissal as "refusal to obey a lawful order". The order in question was a requirement to work flexible shifts over 7 nights which was not lawful because the appellant could not be compelled to carry out work between midnight on Saturday and midnight on Sunday.
29. Although this ground of appeal was advanced by Miss Cunningham, for the most part it is no more than a different way of looking at the same problem as the first ground of appeal, albeit from a different angle. We do not believe that it adds anything to the case and we do not find it necessary to make further findings about it.
30. It follows from what we have said that we shall allow the appeal. Miss Cunningham invites us to substitute a finding of unfair dismissal based on an impermissible reason for one set out in section 101 as the reason or principal reason and to remit the matter to an Employment Tribunal solely for a remedies hearing.
31. We have come close to acceding to that submission but, in all the circumstances, have come to the conclusion that we should remit to a differently constituted Employment Tribunal so that the merits can be considered by a fact-finding Tribunal which properly takes into account all the evidence before it.