United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S JONES (Of Counsel) Instructed by: Messrs Bond Pearce Incorporating Cartwrights Solicitors Marsh House 11 Marsh Street Bristol BS99 7BB


 


MR RECORDER LANGSTAFF QC

1. In this Preliminary Hearing of an appeal from an Employment Tribunal sitting at Bedford we had the benefit of an interesting, sustained and well developed argument from Mr Jones on behalf of the would be Appellant. The focus is the reasoning of the Employment Tribunal promulgated on 30 October 2001 which upheld Mr Burke's complaint that he had been unfairly dismissed and proceeded to award him £54,836.30p by way of compensation.

The Facts

2. Mr Burke was employed as a trainer of forklift truck drivers. Circumstances arose which led to a disciplinary hearing for supposed refusal to obey a lawful and reasonable instruction by his employer. That instruction was to work night shift. He had refused. In consequence he was disciplined. He was downgraded. He thereupon resigned. The Employment Tribunal found that disciplining Mr Burke was a breach of the implied term of trust and confidence. It did so because according to the Employment Tribunal the management had addressed the issues which had arisen by disciplinary proceedings instead of by attempting to resolve the underlying difference between Mr Burke and the employers through a grievance procedure. That, the Tribunal concluded in paragraph 10, was an action which no reasonable employer would take and accordingly fell foul implicitly of section 98 of the Employment Relations Act 1996.
3. The underlying dispute was whether or not Mr Burke was subject to a flexibility clause. It was his case that there had been a meeting on 27 November 1997, at which he was present, between the employers and the trade union representing the workforce at which as part of a pay deal the previous flexibility requirement generally applicable to employees was removed. That was disputed before the Tribunal. The Tribunal concluded in paragraph 5(6) as follows:

"Of more importance is whether or not there was a decision to move away from flexibility. The clear evidence is that subsequent to 27^th November, (and although it might not be specifically recorded in the next set of minutes in February 1998) the management, i.e. Homebase at that stage, adopted a policy of accepting that employees would be employed on fixed shifts without management being able to require them to move although the employee themselves could request it. That is clear not only from the various documents on the subject that we have before us (a good example being the job advertisements), but also custom and practice, and we heard it conceded by Mr Meams and Mr Robbins that post their coming in (which was only about a year before the main events that we shall come to) that people were not required to change shifts. Again, the management in effect changed stance during the case. Ultimately they were saying that albeit employees normally could not be required to change shifts; that this did not cover the Applicant by virtue of the letter of 7^th November 1997 and his acceptance of 11^th November. First we therefore find that on 27^th November 1997 the employee did agree to remove the flexibility clause."

4. Mr Jones maintains that there is an arguable appeal against that finding. He does so on two linked bases. First, he says that in evaluating evidence a Tribunal should take into account all the matters which are required to be taken into account just as it should not take into account matters which it is impermissible to pay regard to. He says that one of the important characteristics of the evidence here was that there were documents, albeit that there was no minute, as such, of a meeting which (it was ultimately agreed) took place on 27 November. There were minutes of preceding meetings. There was a letter subsequent to 27 November which purported to record discussions that had taken place and there was a contemporaneous note of some of the discussions which had occurred. None of that documentary material recorded any mention let alone agreement upon the issue of flexibility.
5. Accordingly, he submits that it was incumbent upon this Tribunal to mention the documentary evidence if only to demonstrate that it had taken into account matters which it should have paid regard to. As he put it in part of his submissions the reasoning would have been acceptable had there been additional sentences added in particular to paragraph 5(3) and (4) which indicated that no document which one might have expected to deal with the flexibility issue actually did so. Indeed he went so far as to suggest that it was very odd, and some reference should have been made to the oddity, that Mr Burke could have sat through an appeal hearing in respect of his disciplinary charge without mentioning his contention as to the discussions in respect of flexibility of 27 November.
6. We accept that there was much which might have been said by the Tribunal about such documents of the issues to which they gave rise. However we are reminded that a Tribunal decision is not required to be such a finally tuned piece of draughtsmanship that it mentions every issue, crosses every 't' and dots every 'i', nor are we required to conclude that where a decision may seem to an extent surprising that the Tribunal goes to greater length to explain it than might be the case were it not so. The issue for us is twofold. First, whether or not there was evidence upon which a Tribunal was entitled to rely in reaching the conclusion it did and secondly whether it sufficiently expressed its reasoning such that the parties would know why they had won or lost.
7. We shall come to our conclusion as to that in a moment. We should deal first with the second point which Mr Jones raised which was of that frank perversity. That implies that there was either no evidence upon which the Tribunal could properly come to the conclusion it expressed as to the agreement to remove the flexibility clause or that it was so astonishing as to be an impermissible finding. He accepts (rightly in our view) that that is a difficult argument in a case in which the uncontested fact appears to be that the respondent and his witnesses gave evidence that there had been a discussion on 27 November to the effect which the Tribunal found.
8. We have to ask ourselves whether or not the Tribunal focussed upon the right issue. One principal question before it was whether there was a flexibility clause binding Mr Burke or whether there was not. The evidence on that centred upon whether that clause which it had, it was accepted, been imposed upon him by specific contract in November was removed by later agreement collectively reached on 27 November. The Tribunal confessed in paragraph 5(4) that they were not helped by the absence of any minute relating to that particular meeting. They concluded that the absence of a minute was because a minute that had once existed had disappeared and was not available. They then went on to deal with what logically was the only issue left for them which is what was actually agreed at that meeting. We have no doubt from what we have heard that in reaching that conclusion they were in a position to evaluate the oral evidence on both sides relating to it. Indeed the Tribunal comments upon the quality of that evidence on both sides. We are sure that that evidence was tested by reference to the documents in respect of which Mr Jones particularly directs our attention.
9. We have concluded that the Tribunal was entitled to reach the conclusion it did and which it expressed in the last sentence at paragraph 5(6). It cannot be said to be perverse. We think that it is simply unarguable that this Tribunal should have set out specifically, and specifically dealt with, each of the written documents rather than simply taking them into account in reaching the findings which it did.
10. The issue in respect of flexibility having been determined, the next question upon which we were invited to say there was an arguable ground for appeal was whether the Tribunal were right to conclude that the general agreement in respect of removing the flexibility requirement was applicable to Mr Burke as it was generally. The Tribunal said in paragraph 5(7):

"The next issue to determine is therefore whether the exchange of letters meant Mr Burke was not covered by that decision." (We interpose to say that was the decision in respect of flexibility)

They then dealt with and reviewed some of the evidence in respect of that and concluded with these words:

"Accordingly we find that the Applicant, along with the rest of the workforce, was covered by the agreement to remove the flexibility requirement."

11. The Tribunal had thus evaluated the evidence. They had in mind the issue. They reached a conclusion. We cannot say and we do not think that any appeal Tribunal could say that they were in error in reaching that conclusion. Part of the basis for doing so was undoubtedly the factual matrix against which the contracts were concluded and in respect of which this Tribunal had heard the evidence and considered the witnesses.
12. The final point that Mr Jones urged upon us on the liability part of the appeal was that in determining whether the dismissal was fair or unfair it simply could not be said that this management had acted outside the band of reasonable responses. Such was the focus upon the contractual rights and wrongs of the situation that the Tribunal may have lost sight of what was actually in the mind of the dismissing employer. Mr Jones emphasised that here members of management perhaps came from a different management team than that which had been involved at an earlier stage because the identity of the employer had twice changed by reason of TUPE transfers during the period with which we were concerned. That management had no specific written record to rely upon to tell it that there was no flexibility requirement to the converse. Any quick look at the personnel file of Mr Burke would reveal a letter which he had accepted in terms imposing just such a requirement in early November 1997.
13. Accordingly it must have seemed that when he rejected the request or order to work nights he was in breach of a term of his contract. The view of management had, contended Mr Jones, to be set against that background. He accepted that this way of putting the appeal was a little different that which he had originally intended to formulate but emphasised this was informed by the recent decision of the Court of Appeal following on from a decision of this Tribunal in the case of O'Brien v Transco.
14. We have taken the argument as he put it to us. The question which arises is whether or not this Tribunal went through the appropriate stages identified in section 98 of the Employment Rights Act 1996. It did not specifically address them by reference to the statute but so familiar territory it is that we are sure the Tribunal had it in mind.
15. The short answer we think to these submissions is that it appears from paragraph 5(12) and thereafter through to the end of paragraph 10 of the decision that the Tribunal did not focus upon the contractual rights or wrongs, save as background, but rather upon the way in which this employer proceeded once it had been told by Mr Burke that there was a real dispute as to the contractual obligations that applied.
16. It concluded that in such a dispute as identified to it a reasonable management would not have gone down the disciplinary route and demoted Mr Burke. That seems to us to be answering the question posed by Section 98(4) and answering it in a way which was hostile to the case of the Appellant.
17. We have to ask ourselves whether there is any arguable basis upon which it might be said that the Tribunal was not entitled to reach that conclusion. Whatever conclusion another Tribunal might have reached we can see no such basis. It follows that despite the attractive submission of Mr Jones to which we pay tribute we are unable to see that there is here any arguable basis upon the appeal on liability can proceed.

Quantum

18. It is a very different position when we turn to the issues in respect of remedy. We consider that there is an arguable case that this Tribunal was in error in the way in which it dealt with the calculation of losses. We propose to say little more about it save this. The issue may be of one of some importance given the extension not long ago of the Tribunal's jurisdiction. The issues arise in relation in particular to the calculation of future awards, paid as a once and for all lump sum but covering prospectively a number of years of a loss which would otherwise occur periodically.
19. In personal injury cases, for instance, it is common that in assessing the lump sum there should be a discount given both for contingency and for acceleration. Neither appears to have been taken into account by this Tribunal in the award which they specified.
20. We consider that it is open to the Appellant to argue that the award was wrong upon the grounds that the Appellant identifies. Our comments may possibly assist further. The appeal should take no more than half a day. It is Category B. Skeleton arguments please 14 days at least prior to the hearing together with copies of any authorities to be relied upon.