United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTIN BARKLEM (Of Counsel) Instructed by: Messrs Russell & Creswick Solicitors 2 Bells Square Off Trippet Lane Sheffield S9 1RT
For the Respondent	MR DERMOT HUGHES (Of Counsel) Messrs Frank Allen Pennington Solicitors 5-7 Regents Terrace South Parade Doncaster DN1 2EE


 


MR JUSTICE WALL

1. This is an appeal by NWT Freight Forwarding Ltd against the decision of the Employment Tribunal held at Sheffield on 3 January and 9 March 2001 with reasons promulgated on 28 March. The unanimous decision of the Tribunal was that the Applicant before it Mr G R Owen had been unfairly dismissed by NWT Freight Forwarding Ltd and the Tribunal directed the matter should be listed for a remedies hearing.
2. The issue before the Tribunal was one of constructive dismissal. In his form IT1 Mr Owen had submitted that he was employed by the Appellant from March 1992 until 16 May 2000 with a previous period of employment between 1989 and 1991. He alleged in the form IT1 that during the period of his employment the Appellant had misbehaved towards him in a number of ways including unlawful deductions from wages and breaches of health and safety regulations. We should say that the Respondent Mr Owen was employed as HGV driver by the Appellant.
3. The last of the complaints which Mr Owen made was that the Appellant had required him to work unreasonably long hours without proper rest breaks. At paragraph 3 of the Originating Application he says this:

"3. The Respondent's actions culminated in the Respondent miscalculating and underpaying my salary in respect of the weeks commencing 16^th April 2000, 1^st May 2000 and the 8^th May 2000. I believe that the actions of the Respondent were such as to amount to a fundamental breach of contract and as a result of the Respondent's actions I believe that I had no alternative but to terminate my Contract of Employment without notice. Accordingly on the 16^th May 2000 I informed the Respondent that I would be terminating my contract, without notice, as a consequence of the Respondent's breaches."

4. The response to the IT1 was a detailed refutation of the allegations made by Mr Owen and also a complaint that they lacked particularity. Further and better particulars were sought. However, in paragraph 3 of the response the Appellant dealt with the incident on 16 May and it dealt with it in these terms:

"The circumstances regarding Mr Owens departure, are, in the Companies opinion totally different from those ascribed by Mr Owen.

In the presence of at least four witnesses, Mr Owen reported to the office for his next assignment, and was informed that he would be required to return to the depot the following day and make a delivery to Manchester, which required him to arrive at work at about 0630.

This request was reasonable, and within the terms of both Mr Owens contract, and the Driver Working Hours Regulations.

Mr Owen became abusive to the office staff, and his manager, and refused to carry out the instruction. The Logistics Director then Intervened and again requested Mr Owen to carry out his normal duties as requested. Again Mr Owen refused.

Mr Owen was warned that if he failed to carry out his instructions, then disciplinary action would have to be considered.

At this point Mr Owen stated that he would not comply and was leaving. He proceeded to vacate his possessions from his allocated vehicle and left the premises, and failed to return to work thereafter."

5. In the further and better particulars which were sought of this particular incident the Appellant sought particulars firstly of the allegation that he had been required to work unreasonably long hours, and the question was:

Who required the Applicant to work unreasonably long hours without proper rest breaks?

Answer:

Brian Else who was the manager at the time.

Where and when?

Answer:

This was an on going practise throughout the period of the Applicant's employment up until the date of termination.

Please provide a gist of what was said.

Answer:

There was no one occasion when the Applicant was told specifically to work excessive hours but the Applicant was required to undertake repeated journeys particularly overseas with short turnaround times undertaking loading work over long periods without them being taken into account as driving time during a 24 hour period.

And slightly later in the same particulars he returns to this incident he was asked about the phrase:

"I informed the Respondent that I will be terminating my contract"

Question:

Who did the Applicant speak to?

Answer:

The Applicant's initial discussion was with the Traffic Clerk but ultimately the General Manager Richard Platts became involved in the presence of Lisa Wright, Steve White.

Question:

When and where?

Answer:

16^th May in the respondent's Company's offices.

Question:

Please give it a gist of what was said?

Answer:

The Applicant will say that the discussion started with the Applicant being required to attend the Respondent's place of work next morning to deliver a load to Manchester for 8.00 am in the morning after the Applicant had immediately from an overseas trip. The Applicant maintained that it was an unreasonable request following his return from a 9 day trip abroad but would have been able to ensure that the delivery was there by a short time later. This was a preliminary to a further long trip calling at Manchester and Leeds and Bradford and then Rotherham before returning to reload and return to Portsmouth for a night crossing again. The Applicant maintained it was unreasonable and the Traffic Clerk kept repeating "That's it". It was apparent to the Applicant that his complaints had been ignored and that the Respondents had been unreasonable. In addition the Applicant complained of an under payment of wages, which complaint was ignored as it had been on numerous previous occasions. This was a culmination of repeated complaints over matters of wages, bonus, salary and working conditions that have been brought to the Respondent's Company's attention over the months and years previously and the Applicant was not prepared to continue working in such an environment where he believed the Respondent had breached the duty of trust that should exist between the Employer and Employee."

Finally from Mr Owen's perspective, in his statement for the purpose of the proceedings he deals with the incident of 16 May in these terms:

"On that day (that is the 16 May 2000) I had returned to the UK after being away for 9 continuous days, making 5 drops and 5 collections. I had boarded the ferry from France at 2.00 a.m. arriving in the UK at 3.45 a.m. I started work at 6.30 a.m. and I arrived in the depot late in the afternoon only to be told that I was required at Manchester at 8.00 a.m. the next morning. I told the transport clerk that I was tired after my long day and night and 9 nights away and bearing in mind that I had a full day the next day, with a departure to the continent yet again, I objected to the fact that the Company required me to be there at 6.00 a.m. so as to make the first drop in Manchester at 8.00 a.m. The clerk insisted that I would have to go to Manchester at 6.30 a.m. the next day. Also with deliveries on board for Leeds and Bradford with re-load from Brinsworth then on to Portsmouth for sailing to France and onward to Bilbao, Spain. Although there was no swearing and shouting, matters did become "overheated".

I told the Traffic Clerk Steve White that "it wasn't on" and that I was being given 9 hours off, 7 of which I would be asleep. This was after 9 days away with the prospect of a further week or more away.

Steve White said "Its your job" and I replied "I know".

He then kept saying "thats it".

I walked out of the office and transferred my gear to my car and took the consignment papers into the office."

And then at paragraph 21 he says:

"The Company were insisting that I attend at 6.30 am the next morning, which I refused to do since they were not dealing with my reasonable requests to resolve the salary situation. Ultimately, the position was that I told them that I considered their refusal to co-operate was totally unreasonable. I was persuaded that the only course open to me was to resign from the Company with immediate effect. I therefore told them that I would be resigning. At that stage Mr Platts had appeared and he said to me "if you're thinking of going to a Tribunal I am the master". That statement was made in the presence of the Traffic Clerk Mr Steve White and also Miss Lisa Wright."

6. This incident being so central to the decision of the Tribunal we propose briefly to see what was said by the Appellant's witnesses in relation to the same incident in order to identify the conflicts which arose. We have before us the statement of Mr Platts, the Appellant's General Manager. He says that he heard an argument developed between Mr White and Mr Owen and went over to investigate. When he got there Mr Owen was being abusive to Mr White:

"I asked what the problem was. He said that he had just got back from a journey to Spain and was now being asked to go to Hyde in Manchester in the morning to drop off a load by 8 am. He said he had been enough at work and he was not going to get up at 4 am.

I investigated the matter further and was informed that Mr Owen was in fact in the middle of his working week and effectively had a rest day yesterday while in France. He would have received a payment of £50.00 for his trouble. He therefore would be spending the rest of the day at home and would be required to attend work at say 6 am in the morning to take a delivery to Hyde in Manchester. It is likely he would have been required to take other deliveries domestically until the next long continental journey the following weekend.

I told him that I thought what he was being asked to do by Mr White was a reasonable request and I suggested that he should follow Mr White's instructions. He was abusive and swore although I cannot recall the precise words which he said. I believe he may have said you can "shove it". He left the office. I expected that this was a bit of "hot air" and I fully expected to see Mr Owen at work the following day. As it is that was the last we saw of him."

We also have the statement Lisa Wright who was office administrator employed by the Appellant and in relation to this incident she says:

"Bob Owen had arrived in the yard at about 2 o'clock after undertaking a journey to and from Barcelona. He had some goods on his lorry for delivery to Hyde, just outside Manchester. We had booked those goods for delivery to the customer in Hyde or 8 o'clock in the morning. Steve asked Bob if he could take the load in the morning. He said he was not going to do it as he would have to get up at 4 o'clock in the morning although that is not exactly true.

He was abusive and had a right go at Steve. He swore stating that he "was not going to f**king take that" Steve said he really needed it taking and if he was not going to take it he would have difficulty finding someone else.

At that point the general manager Richard Platts who had recently joined the company and who had heard the commotion came over. Bob Own repeated the matter to him that he had just come back from a journey to Barcelona and was not going to take this load in the morning. Richard's view was that the request was a reasonable one to make as he would effectively have the rest of the day off and could be back at say 6 o'clock in the morning to take the load to Manchester. His next long journey would not be until the weekend. There was some further swearing and Mr Owen stormed out. I think he came back the following day to clear out his cab although he did not call into the office."

7. The Tribunal dealt with the disputed issue of fact in sub paragraph (m) of its finding of fact which begins at paragraph 4. This is what they found:

"On 16 May 2000, the Applicant returned to The Depot having completed a 9 day tour of duty, returning from Spain on that day. During the course of the afternoon, and no later than 2 hours following his return, he was informed that he was required to attend for work the following day at 6.30 am in respect of a delivery to Manchester. In addition, he was informed that he would be required to attend Rotherham, Leeds and Bradford before departing the same day to France. Before the Tribunal, the Applicant stated this instruction was resisted by him and his resistance was met with a threat of disciplinary action. The Respondent disputed this and contended that the Applicant was the only person capable of performing the particular task and he had simply refused. In this respect, the Tribunal prefers the evidence of the Applicant and accepts that the following days duties were expressed as an instruction with a sanction. In the view of the Tribunal, the Applicant was dealt a fait accompli. In normal circumstances, the Applicant would have been allocated yard duties and given 24 hours notice before being requested to return to long haul driving. In response to this demand, the Applicant cleared his belongings from his vehicle and indicated in terms that he was not going to return to work. Mr White, on behalf of the Respondent, confirmed that he did not expect the Applicant to return. His expectation was realised. He was further stated by the Applicant that the Respondent's position had been expressed on 16 May 2000, by Mr Platt when he stated "If you are thinking of going to a Tribunal – I am the Master." The Tribunal is satisfied that such a statement was made and that as at 16 May 2000 the Applicant had communicated his dissatisfaction and his intentions to the Respondent."

8. It is immediately apparent from the substantial extracts I have read from the written evidence that the gloss placed by the Tribunal on this incident, namely that the Applicant would have been allocated yard duties and given 24 hours before being requested to return on long haul driving was not part of Mr Owen's written case. It appears neither in his statement nor in the form IT1 nor in the further and particulars which I have outlined. Where then did it come from? We have the advantage of notes taken during the course of the hearing by Mr Hughes and we also have the relevant part of the Chairman's notes which were called for when this case was at the Preliminary stage. This is the note that Mr Hughes made of Mr Owen's cross examination by Mr Wood, the Appellant's solicitor:

"You arrived back from Barcelona at 2.30? Possibly, can't say for sure.

My 6 day week had started on Monday.

I was due to report to work the following day.

I was asked to take a load to Manchester, then Leeds, then Bradford, then Rotherham, then Bilbao.

I did't not accept the instruction.

I informed them I would take the load but that I wouldn't be there at that time in the morning.

Unfair that you were away for that length of time but was it outside the contract? I felt as though I deserved more time at home.

It was an accumulation of things that led to the walkout.

The trigger factor was the order that I had to attend work for 6.30am the next day.

Money was not on my mind when I walked out.

Health and safety issues? Was final straw.

They were all ongoing incidents i.e. pay, hazardous loads.

I didn't have another job to go to."

And then the evidence of Mr White when questioned by the Tribunal:

"On occasions driver would be required to perform yard duties.

9 days was a long journey for Mr Owen.

He was always a very reasonable chap.

I was in two minds as to whether he would return the following day.

There had been no similar episodes to this…..

I hadn't had a chance to look into the contractual position when I took over, that ie, re Mr Owen's job.

Where possible, tried to accommodate drivers in the yard following long continental journeys. Depended on level of work."

And we have finally the Chairman's note of the evidence when he records:

"Mr Owen:

In cross-examination by Mr Wood

Q. What did you expect to do on 16^th May 2001?

A. Load and unload trailers ….

Question from Chairman

Q. Why do you say your employer could not make you carry out the delivery on 17^th May 2001?

A. They were not entitled to do it

Question from Mr Firkin

Q. How could predict, at a particular time, how work would be allocated?

A. Normally know if you are going out again – the day coming back or the day before there would ordinarily be discussion."

And then:

"Mr White

In cross examination by Mr Hughes

Q. The events of the 16^th May 2001 were your last contact with the Applicant?

A. Yes …

Q. The Applicant outlined considerable concerns?

A. Yes

Q. When the proposed rota for the following day was referred to, he expressed unhappiness?

A. Yes

Q. This was the first time you had dealt with managers/management?

A. Yes

Q. Mr Platts took over, because he had greater experience?

A. Yes

Question from one of the Tribunal Members, Mr Rogers

Q. Was it normal procedure that the driver/employees would be granted yard duties?

A. We try do to that – occasionally they go for 6 days

Question from Chairman

Q. Were continental trips ordinarily punctuated by yard duties?

A. Yes"

9. How did then the Tribunal deal with all this evidence when it came to the question of whether there had been a fundamental breach on implied term of Mr Owen's contract which entitled him to repudiate it in the circumstances outlined in the 16^th May. The Tribunal set out the law under section 95(1)(c) of the Employment Rights Act 1996 in a way to which no exception is taken:

"The Tribunal had to be satisfied (they said) upon a balance of probabilities that: (a) the Respondent was in material breach of contract; (b) that the Applicant had terminated the contract or employment in response to such breach. If, and only if, the Tribunal is satisfied that these factors are made out will the further issue as to whether the resultant dismissal is fair within the meaning of section 98(4) of the Act arise."

10. The submission made on behalf of the Applicant as outlined by Mr Hughes was that there was an implied term of trust and confidence whilst in certain events the presumption of waiver and/or affirmation arises such presumption is rebutted with regard as to the course of complaints made by the Applicant to Mr Else. He relied on number of previous incidents.
11. The Tribunal then recorded his submissions in these terms:

"In short, Mr Hughes submits that the proper analysis is that on 16 May 2000 the practice operated within the Respondent's workplace concerning the patterns of working were breached and/or disregarded and that such event had effect of resurrecting past and ongoing complaints, in consequence of which the Applicant was forced to realise and accept that he could no longer remain in that employment."

12. Having referred to a substantial number of authorities the Tribunal then sought to identify the implied terms of this contract in these words:

"It is common ground between the parties that the rights and obligations of the parties rest upon implied terms. Such terms may be implied by custom and practice within the workplace, or as is more commonly encountered, arise in order to give efficacy to the contract entered into between the parties. The range of circumstances in which such terms may be imported to the contract of employment are as varied as the workplaces in which they arise. In this case, Mr Hughes places reliance upon the implied term of trust and confidence. That is a wide generic term. On the facts of this case, however, the Tribunal is of the view that the implied terms may be articulated to include the following obligations:

(a) A right on the part of the Applicant not to be required to adopt any practice likely to infringe domestic or European Law or otherwise expose him to legal sanction;

(b) A right not to be caused to suffer unauthorised deductions from wages and/or a further right that any contractual procedure regulating such deductions would be followed;

(c) A right to have his grievance and concerns properly heard and determined;

(d) (And this the important one for present purposes) A right on the part of the Applicant to be allocated yard duties following an overseas journey in accordance with the custom and practice within the Respondent's workplace and/or that such should be subject to alteration upon reasonable notice;

And then finally:

"(e) A right on the part of the Applicant not to be caused to suffer any unilateral variation in the terms and conditions of pay, whether as to payment rate or earning regime;"

13. I anticipate for a moment in order to deal with the fact that when the Tribunal analysed the various breaches which Mr Owen alleged it found for Mr Owen on the facts in relation to them. The Tribunal also found with one exception that Mr Owen over the years had affirmed the contract and that they were accordingly not matters upon which he could rely with the one exception of on going anxiety and criticism over deductions from his wages in relation to telephone calls. However, the Tribunal then dealing with the question of 16 May went on to say this and I quote from paragraph 19 of their reason:

"Turning to the events 16 May 2000, the Tribunal is of the view that the exchange which took place, did in fact represent a fundamental breach of contract. Whilst it must be recognised that the employee is required to follow the reasonable instructions of his employer, the Tribunal is entitled to test to the reasonableness of the instruction and have regard to the manner in which the instruction was issued. As at 16 May 2000, the Applicant expected, and was entitled to expect, duties within The Depot to compensate for his overseas duties for the preceding 9 days. It was the evidence of the Respondent that such practice was ordinarily given effect - and where it was not to be followed, 24 hours notice was given to the employee concerned. The Applicant was not given such notice. No supporting evidence was given on behalf of the Respondent as to the availability of other drivers, save for the assertion that no one else was available. When issuing this instruction, however, the Respondent resorted to a threat of disciplinary action. This conversation occurred within an office area and within the presence of the assistant personnel.

The implied term relied upon by Mr Hughes was articulated within the Mahmud case required the employer not to act in a manner likely to damage the relationship of trust and confidence without reasonable and proper cause. The cause of the conduct on the part of the employer is one thing; the manner in which it is acted upon is another. In the view of the Respondent was in material and fundamental breach of contract in its dealings with the Applicant on 16 May 2000. Even if the Tribunal is wrong in this view, it is clear upon evidence before the Tribunal that incidents of 16 May 2000 represented the "last straw". As is submitted by Mr Hughes, such had the effect of resurrecting the past incidents. When viewed within the context of the past conduct, the Tribunal is of the view that the Applicant was entitled to elect to treat the contract as at an end."

14. For the Appellant it is argued with some force, that what has happened in this case is that the Tribunal has elevated what is at best a custom and practice of the workplace into a fundamental implied term which at no stage formed any part of the Respondent's case. It is clear from the extracts that we have read from Mr Owen's statements and the further particulars that at no point did he raise any form of suggestion that he would be expected on the following day to undertake yard duties. Indeed his case appears to have been (apart from the extra cross examination which I have read) that he would indeed be working on the following day and that he would have been willing the following day to take the load to Manchester albeit at a slightly later juncture.
15. In these circumstances it is argued and as we say argued with some force that to elevate what is described as a right on the part of the Applicant to be allocated yard duties following an overseas journey in accordance with custom and practice and/or that such should be subject to alteration on reasonable notice is wrong in law and that if the Tribunal has identified a contractual term which does not exist and permitted the Respondent to rely on it as a means of repudiating the contract that is a fundamental error in the case and the Tribunal's judgment cannot stand.
16. We have of course considered that approach with some care and indeed when the matter was before this Tribunal for Preliminary Hearing this was the issue which was identified and that is why the evidence was directed towards it. But in our judgment having considered the matter as I say with some care we think Mr Hughes is right on behalf of Mr Owen when he submits to us as he did this morning that the fundamental breach of an implied term of the contract which the Tribunal identified was an unreasonable order to Mr Owen by the Appellant to perform driving duties ie from 6.30 in the next morning which as Mr Hughes put it flew in the face of the employee's reasonable expectation based on custom and practice that he would not be required to perform such driving duties without a reasonable break. That in our view stripped of its additions is what the case was really about. Mr Owen was entitled in our view to rely on the fact that the unreasonable to order attend at 6.30 the following morning was accompanied on the Tribunal's findings by a threat of disciplinary action and a warning not to take the matter to a Tribunal. In our view, stripped of its accretions and unnecessary additions, the requirement to start again at 6.30 the following morning in the circumstances of this case was capable of being and indeed was a fundamental breach of Mr Owen's contract sufficient to justify him in resigning.
17. It follows in our judgment that the decision that Mr Owen was unfairly dismissed is one which cannot be said to be wrong in law or one which the Tribunal was not entitled to reach despite the fact that the route by which they reached it seems to us somewhat circuitous. It follows in these circumstances that the appeal must be dismissed.