Appeal No. UKEAT/0573/11/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
13 April 2012
Before
MR
RECORDER LUBA QC
MR D EVANS CBE
MR J MALLENDER
MS
O D HILL APPELLANT
ARRIVA
SOUTHERN COUNTIES LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal claim. Employer’s case that dismissal was for
gross misconduct (failure to comply with reasonable instruction).
Employment Tribunal rejected Claimant’s claim. Appeal brought on
basis that the Tribunal’s reasons do not identify precisely what the
instruction was. Without that, it could not properly determine whether it was
‘reasonable’.
Appeal dismissed
The Tribunal had found as a fact what the instruction was
and had made no error in reviewing employer’s decision that it was a reasonable
instruction, non-compliance with which warranted dismissal.
MR RECORDER LUBA QC
Introduction
1.
This is a Claimant’s appeal from a Judgment of the Employment Tribunal
sitting at Ashford in Kent by which it dismissed all the claims that the
Claimant, Mrs Hill, had brought before the Employment Tribunals Service
arising out of the termination of her employment by the Respondent employer.
The only one of those claims of relevance to the present appeal is the claim
made of unfair dismissal contrary to the Employment Rights Act 1996
(ERA), section 98. It was common ground that the Claimant had been
dismissed by her employer. The Employment Tribunal accepted the employer’s
case that the Claimant had been dismissed for gross misconduct; that misconduct
was her failure to comply with a reasonable instruction given by her
employers. The Employment Tribunal found that the dismissal had been both
procedurally and substantively fair. The single ground of appeal contained in
an amended Notice of Appeal is that the Employment Tribunal failed to find as a
fact what the relevant instruction was that the Claimant had been given.
Without making that finding, it is said in the ground of appeal, the Employment
Tribunal could not have properly determined whether the instruction was a
reasonable instruction to do something within the terms of her employment or
was, as the Claimant asserted, an unreasonable instruction to do something
outwith those terms. By its Answer to the appeal the Respondent asserts that
the Employment Tribunal did make the requisite findings of fact and that its
decision on the particular point is clear.
The essential facts
2.
The Claimant was employed by the Respondent from April 2006 at its
bus depot at Northfleet. Her job title was “Store Person”. As the Employment
Tribunal recorded (paragraph 16), her job description included the
following passages:
“Be fully conversant with the Spear and Iproc systems.
To carry out any reasonable request from supervisory levels in
line with business requirements.”
3.
The Spear system mentioned in that extract from the job description was
a software tool used in every bus garage where the Respondent carried out its
bus maintenance procedures. It was used by the Claimant herself in the course
of her ordinary employment; in particular, she used it for recording what items
were issued by her from her store to the maintenance staff. Her role is that
of storekeeper for these purposes, and her position in the arrangements for the
Spear software, is helpfully shown in a manual printout by way of a pictogram
under the heading “Express Issue Overview”, to which we were taken at
page 105 of our bundle.
4.
In 2009 a Mr Moyo of the Respondent was engaged on the process of
reviewing and improving the Spear computer system. Having completed the task,
he ran a programme of training in the revised system based on a manual that he
devised. The training was offered for both engineering managers and for store
operatives such as the Claimant. The Employment Tribunal found that by
5 February 2010 the Claimant had been told by her managers that she
would be required to carry out the following tasks using the Spear system:
“Raise work orders, add employee names and hours to the system
and then save and close the work order.”
5.
That finding, contained in paragraph 26 of the Employment
Tribunal’s Judgment, was, as the Tribunal recorded, based on the Claimant’s own
evidence. It is taken almost verbatim from her witness statement, made in the
Employment Tribunal proceedings, at paragraph 29. On
9 February 2010 Mr Moyo provided training to the Claimant on the
new revised Spear system. Following her training she wrote on the same day to
her manager that:
“I believe it is necessary to put in writing that it is not my
duty to prepare work order, input employees hours or closing of work orders.
This is outside the scope of my contract […].”
6.
The following day her manager responded that there was no change in the
contract of employment and that what was occurring was simply “a change in the
process”. He urged her to, “implement the system for which you received
training yesterday”. In reply the Claimant repeated her view that what she was
being instructed to do was outside the scope of her employment. She was
thereupon suspended pending an investigation of that point. The matter was
investigated by a Ms Wratten. Ms Wratten’s report was presented to a
Mr Shuttleworth of the Respondent, who conducted a disciplinary meeting on
18 March 2010. He formed the view that what was being asked of the
Claimant was not a change in the contract of employment but was rather, as he
expressed it in a letter of the same date following the disciplinary meeting, “purely
a change of process to enable us to improve our business […]”. By the same
letter the Claimant was summarily dismissed for refusal to follow a “reasonable
instruction”.
7.
An appeal against that decision was heard by a Mr Wykes of the
Respondent. He concluded, in a letter dated 19 April 2010, that the
Claimant had indeed, “failed to carry out a reasonable instruction”. A final
appeal was considered by a Mr Barraclough of the Respondent. He rejected
the appeal in a letter dated 26 May 2010, which referred to what the
Claimant was being instructed to do as, “simply a change in procedure to enable
engineering costs to be more accurately managed”, and that the new work was,
“simply recording hours of work carried out on vehicle types”, amounting to “a
minor change” to procedures.
The Judgment of the Employment Tribunal
8.
Having set out an account of the relevant history from which the short
summary we have just given is drawn, the Employment Tribunal made these three
findings:
“40. The Tribunal found that the reason for dismissal was, as
stated by Mr Shuttleworth, Mr Wykes and Mr Barraclough, gross
misconduct in refusing to carry out a reasonable instruction.”
9.
Secondly, it found that (paragraph 42):
“The Respondent invested substantial time and effort in three
lengthy meetings, provided repeated explanations of the requirements of the
Claimant’s duties following her training, and made numerous efforts to persuade
her to withdraw her refusal and agree to work the new procedures. The
Respondent’s dismissing and appeals managers went to considerable lengths to
avoid the dismissal.”
10.
Thirdly, the Tribunal found at paragraph 43 of their Judgment:
“The reason for dismissal and refusal of the appeals was wholly
and solely based upon the Claimant’s refusal to carry out a reasonable
instruction […].”
11.
As to the Claimant’s case, as advanced before it by her representative,
the Employment Tribunal said this (paragraph 52):
“The Tribunal found that the Claimant and the managers were
fully aware of the duty requirements of the new procedures. They were
explained to the Claimant on 5 February 2010 and in detail in
Mr McGuinness’s letters, and at the disciplinary meeting and at the appeal
meetings.”
12.
At paragraph 54 the Tribunal say this:
“Even with the Claimant’s unblemished disciplinary record, there
was no mitigation for a refusal to carry out a reasonable instruction which had
been applied nationwide, complied with by all other employees and for which
training had been specifically provided and which the Claimant had successfully
undertaken.”
13.
In those circumstances the Tribunal found the dismissal to have been by
reason of gross misconduct and to have been substantively and procedurally
fair.
The ground of appeal
14.
There is a single, amended ground of appeal expressed in four short sub‑paragraphs,
which collapse to a single proposition: that is, that the Employment Tribunal
failed to find as a fact what was the precise management instruction that the
Claimant had refused to carry out. Without such a finding, it is said by
Ms Chan in forceful submissions, it could not properly have discharged its
statutory function in determining whether the Claimant had been fairly or
unfairly dismissed.
15.
The Respondent does not deny that in the particular circumstances of
this case such a finding – that is to say, identifying the instruction given –
was a necessary prerequisite of the Employment Tribunal’s Judgment. Rather,
the Respondent asserts, through its representative, Mr Hersey, that the
Employment Tribunal did make the necessary finding as to what that instruction
was in the very passages we have extracted above.
16.
This, then, is a “Reasons” challenge. The question is whether, to adopt
the familiar Judgment of Bingham LJ as he then was, in the case of Meek v City of Birmingham District Council [1987] IRLR 250 at paragraph 8: whether
the Judgment of the Employment Tribunal contained:
“[…] an outline of the story which has given rise to the
complaint and a summary of the Tribunal’s basic factual conclusions, and a
statement of the Reasons which have led them to reach the conclusion which they
do on those basic facts. The parties are entitled to be told why they have won
or lost. There should be sufficient account of the facts and of the reasoning
to enable the EAT or, on further appeal, this court to see whether any question
of law arises […].”
The competing arguments
17.
At the outset of her submissions before us Ms Chan accepted that
the Employment Tribunal had made a finding as to the terms of the
relevant instruction given. We repeat the Employment Tribunal’s finding, taken
from paragraph 26 of its Judgment, that the instruction was to carry out
the following tasks:
“Raise work orders, add employee names and hours to the system
and then save and close the work order.”
18.
Ms Chan’s essential submission before us was that the Employment
Tribunal had failed to grasp and make a finding of fact on what she described
as the critical issue; that is to say, the meaning of the opening words, “Raise
work orders”. There was no controversy, she submitted, as to the remaining
parts of the instruction, because the Claimant had, albeit reluctantly and
contrary to her initial position, been prepared to comply with those parts.
Ms Chan submitted that in the context of the instant case the instruction
to “Raise work orders” could mean either one of two things. It could mean that
the Claimant would be expected in future to fill in on the Spear system the computer
template for a works order using information already set out by engineering
managers on a job card or other worksheet in manuscript. Alternatively, it
could mean that the Claimant was in future being asked to actually raise or
create jobs in the sense of identifying what needed to be done to particular
vehicles and when, which operatives should undertake those functions, and to
plan at least a week ahead so that the maintenance and repair of vehicles would
be undertaken in a planned way.
19.
The Claimant certainly had the capability to undertake the function in
the former sense. Indeed, she had shown herself as adept at using the Spear
system in that way during her training with Mr Moyo, and she had done that
work itself when, from time to time, work orders had not been raised on her
system prior to her being required to issue particular items from her stores in
respect of particular pieces of work; but the Claimant could not be required
within the proper scope of her employment, submitted Ms Chan, to take on
the alternative meaning of the function of raising work orders that we have
just set out. Her submission was that the Employment Tribunal failed to
determine which of these two potential meanings was conveyed by the employer’s
instruction. If, as the Claimant believed, it was the latter, then the
Employment Tribunal was bound to hold that the instruction was outwith the
scope of her employment and unreasonable. But Ms Chan’s subsidiary submission
was that even if the words “Raise work orders” were understood in the former or
narrower sense, nevertheless that would represent a new task for the Claimant.
It would be an onerous and unreasonable task for the Claimant to undertake
given the number of vehicles and the number of work orders relating to them at
her particular depot. Ms Chan’s case, in a nutshell, was that the
Employment Tribunal could not properly determine the complaint of unfair
dismissal without having found, as a fact, the sense in which the instruction
to “Raise work orders” was given.
20.
For the Respondent, Mr Hersey relied on the terms of the Employment
Tribunal’s Judgment itself, and in particular on the passages we have already
read. Additionally, he drew our attention to paragraph 46 of the
Tribunal’s Judgment, which, he submits, contains a clear finding in the
following terms:
“The Claimant had refused to carry out reasonably requested
duties in accordance with a company wide instruction, following new procedures
which were complied with by all other store operatives.”
21.
He acknowledged that the Claimant had been advancing a case before the
Tribunal and before her employers that she understood the instruction to have
been given in the wider sense; but, submitted Mr Hersey, the Employment
Tribunal must be taken to have rejected that as misconceived. The Employment
Tribunal must, he submitted, have been taken to have accepted that not only was
the task within the more limited sense of raising a work order – that is to
say, by completing a template from pre‑existing information – but that
such an instruction was reasonable to give a store‑person operating a
computer software programme in the course of her work.
Discussion and conclusion
22.
We are unanimously satisfied that this particular Judgment by this
Employment Tribunal was Meek compliant. It did expressly
identify the management instruction for non‑compliance with which the
Claimant was dismissed. We have already set out the Tribunal’s finding as to
the express terms of that instruction twice in this Judgment. We accept that
the Employment Tribunal could in terms have set out the possible alternative
meanings of the words used, and expressly said which of those meanings it
preferred and why, but one can clearly see from its Judgment that it rejected
the Claimant’s case that the instruction would involve an unreasonable step
beyond her job description, which would have been manifestly an essential
corollary of the words having the broader meaning. It found that the same
instruction had been given nationwide across all of the Respondent’s
operations, staff training had been provided, and that the instruction had been
complied with by “all other employees”.
23.
It is, we consider, inconceivable that the Respondent was requiring all
its store operatives to take over the function of planning and administering
maintenance in its depots, which would have been the necessary consequence of
the wider alternative meaning of the instruction. In our judgment, the
Employment Tribunal did not need to spell out the impossibility, in context, of
reasonably construing the instruction in that way. It expressly rejected the
Claimant’s case that she was being singled out for special adverse treatment.
Taken as a whole, it is clear from its Judgment that the Employment Tribunal
was proceeding on the basis of the more limited sense of raising work orders on
this specific computer system. Its Judgment set out that the Claimant was
required to operate that system and comply with reasonable instructions about
it. It expressly and repeatedly adjudged the instruction given to have been a
reasonable one.
24.
In those circumstances, despite the valiant and persistent submissions
of Ms Chan, we are unable to say that the reasons given by this Employment
Tribunal were so deficient as to be erroneous in law. Both parties can readily
see from its Judgment that the Employment Tribunal rejected this claim of unfair
dismissal because it found (1) that the Claimant had been given a particular
instruction, (2) that that instruction had been a reasonable instruction, (3)
that her failure to comply had amounted to gross misconduct, (4) that dismissal
was in all the circumstances a reasonable response to that refusal, and (5)
that the procedure relating to the dismissal had been fair. In our judgment,
that sufficiently discharges the Employment Tribunal’s obligations. Although
the Employment Tribunal might have gone even further than it did in developing
its reasons, that possibility does not, in our judgment, render this decision
erroneous in law.
25.
For all those reasons, our judgment is, unanimously, that this appeal
shall be dismissed.