O'Gorman v Coventry Presswork Ltd [1991] UKEAT 370_90_1507

EAT

O'Gorman v Coventry Presswork Ltd

[1991] UKEAT 370_90_1507 · 1991-07-15

MR JUSTICE WOOD (PRESIDENT): This is an Appeal by Mr O'Gorman, it is a Preliminary Hearing, from a Decision of an Industrial Tribunal sitting at Birmingham under the Chairmanship of Mr Macmillan who on the 4th May 1990 heard Mr O'Gorman's complaint of unfair dismissal. They rejected his case and as a result he appeals to this Court. As we have explained to him this Court can only consider an Appeal if there is an error of law in the Industrial Tribunal and we have heard Mr O'Gorman this morning. He has made his points very clearly, and we have read all the documentation before us and in particular, of course, the reasons for the Decision at which the Industrial Tribunal arrive.

The Respondents were Coventry Presswork Limited; a well known Company, which employs some 300 in this particular works, of whom some 150 were directly employed in production.

The Tribunal looked to see whether there was any particular "job title" inserted on the Applicant's Contract of Employment and the most that was there was simply a description of "Press Shop No.3" thus, although he was at the time a guillotine operator, there was no particular description like that for contractual purposes. There had been an agreement or arrangement, which Mr O'Gorman challenged, but which the Tribunal found to exist, between the Company and a number of recognised trade unions for flexibility between the various shops. On the 4th December 1989 Mr O'Gorman's manager, Mr Kirkwood, gave an instruction that from the following day Mr O'Gorman was to move from the guillotines to the presses, and that was pursuant to the flexibility agreement. Mr O'Gorman indicated that he was not going to do such a thing, and Mr Kirkwood left a note for Mr Hemmings, his superior, who brought it to the attention of Mr Gillett who was next up the line of management. Mr Gillett looked at the situation and pointed out that this flexibility agreement was being operated virtually day-in-day-out. There were transfers for a matter of hours; or for a matter of days; or for a substantial period and this was with the agreement of the trade unions. Flexibility was essential to the working of this particular unit.

He therefore viewed Mr O'Gorman's approach very seriously, and arranged for a disciplinary hearing. Mr O'Gorman was told that it was a disciplinary hearing and was asked if he would like a representative and he declined. The matter was explained to him carefully, exactly the situation in which he was; the Tribunal looked at it and found that there was no error in the procedure. The same procedure was operated at the next stage and also there was no complaint about an appeal. So the Tribunal looked at it and found it to be fairly conducted.

One of the points taken by Mr O'Gorman was that the strict letter of the procedure was not followed and that the wrong person heard the hearing; that someone, namely Mr Kirkwood, his first manager should have been the one to hear the initial disciplinary hearing.

It seems to us quite clear that this Tribunal examined the whole procedure in the light of fairness and merely because there is some minor deviation from an agreement does not indicate that there was necessarily any unfairness. This was a question of fact and we cannot support Mr O'Gorman in his complaint on that score.

The flexibility agreement having been found against him, and that was a question of fact, the last point taken by Mr O'Gorman before the Industrial Tribunal and before us was that he should have been allowed to exhaust the grievance procedure before he was made to transfer to the Press Shop. Again, the Tribunal examined all the evidence and found as a fact that Mr O'Gorman had not at any stage formally evoked the grievance procedure, so that again was an end of that matter. They said in fairness to him, he came to accept in front of them, that it was not a very good point. The summary of the complaint made by Mr O'Gorman, as understood by the Industrial Tribunal, and it seems to us a very fair way of summarising it was put in sub-paragraph O at page 5 of the Decision where they say:

"Mr O'Gorman's real complaint was that he really did not feel it was reasonable to ask him to take on this other work which he did not think was suitable for him personally. That is a long way from saying that the respondents were intending to alter his wages and conditions. We are satisfied that Mr O'Gorman's argument on his point is fallacious: this was not a case for the grievance procedure."

and then they summarise their views in the final paragraph where they say:

"Quite clearly the mobility agreement covered this situation. It was an agreement frequently implemented by the respondents without difficulty, and we really cannot understand why Mr O'Gorman should have taken exception to it when they tried to implement it in his case. As we have already said, Mr Gillett's analysis of the situation was entirely accurate. Faced with a flat refusal and a wholly inadequate explanation by the employee, the respondents had no choice. If they did not dismiss Mr O'Gorman, that, for practical purposes, was the end of the mobility agreement. It was obviously something of extreme value to them, something with which all the recognised unions agreed. In those circumstances it must be right that it was clearly within the range of responses of a reasonable employer for Mr O'Gorman to be dismissed and his complaint of unfair dismissal therefore fails"

We are quite unable, despite the helpful arguments put before us by Mr O'Gorman, to identify any error of law in the Decision of the Industrial Tribunal and it follows therefore that we are unable to help Mr O'Gorman and the Appeal must be dismissed.