Cruddas v East Mercia Co-Operative Society Ltd [1994] UKEAT 285_92_1201

EAT
Cruddas v East Mercia Co-Operative Society Ltd
[1994] UKEAT 285_92_1201 · 1994-01-12
MR JUSTICE TUDOR EVANS : The Appellant, Mr Crudas, applied to an Industrial Tribunal sitting at Leicester for compensation, claiming that the Respondents by whom he was employed as a milk roundsman, had unfairly dismissed him. The dismissal was admitted by the Respondents and the issues before the Tribunal, as identified by them in their decision, were first that, although the Respondents had proved the reason for the dismissal, whether the reasons related to the matters set out in the section 57(2) of the Employment Protection (Consolidation) Act 1978. The reason given by the Respondents related to the Appellant's conduct which will become clear from the review of the findings of fact by the Tribunal to which we shall refer later. The second issue was whether the Respondents had, in the circumstances, acted reasonably or unreasonably in treating the reason as sufficient for dismissing the Appellant.In summary, the facts as found by the Tribunal were these: first, the Respondents have a retail milk delivery business with various depots and the Appellant had been employed as a milk roundsman by them since 1975. He had, as we understand the finding, worked round 5 for all of those years or at least for a very substantial period of time. His job was to deliver milk, sell other products and account for the proceeds to the Respondents and the finding is and the evidence was overwhelming to support it, that throughout the years the Appellant had conducted his employment in an exemplary manner and had in every way been an excellent employee.On 1 March 1990, the Appellant slipped in the street and broke a wrist as a result of which he was unable to work. He remained away from work until 20 May 1990. During his absence a Mr Clamp, another employee of the Respondents, worked round 5. Mr Clamp had lost his regular round as a result of a re-organisation of the business brought about by the fact that business was contracting in the circumstances of trade which then existed. After he had lost his regular round, Mr Clamp had been working as a relief roundsman. Then the Appellant became fit to work. It is clear that he expected to go back to round 5 but, according to the findings, the Respondents did not want to move Mr Clamp and so they offered the Appellant work as a relief, which in fact is a job in which a roundsman earns slightly more pay than when he is operating a regular route.The Appellant, it is clear, was adamant that he would not undertake relief work and so it was that when, on 20 May 1990, he started work again he began as an assistant to the roundsman on round 12 and he worked there for a week.According to the Respondents, they intended that after the week the Appellant should take over number 12 as his regular round. On 25 May the Appellant was told that he would be allocated to round 12. There was a dispute as to what was said at this time. According to the Appellant, he was told that it would be "for one week minimum" and no indication was given as to what would happen at the end of the week. According to the Respondents, the Appellant was told that the job on route 12 would be "one week minimum but indefinite".In paragraph 2(m) of the decision, the Industrial Tribunal came to the conclusion that it would not make any difference which of the two phrases was used. They held as follows:
"There has been some argument that this difference is significant. We do not accept that it is of any significance at all. To say that it is "for one week minimum", clearly implies that it is likely to continue for an indefinite period thereafter, whether or not the word `indefinite' was used. Quite clearly no indication was being given that it would be for any set period."
In the upshot the Appellant refused to work route 12. The industrial procedures which were in force were followed and the Appellant was dismissed. There was an appeal, that is to say, a domestic appeal by the Appellant during which, according to evidence which was before the Tribunal and which does not appear to have been disputed, he was offered his job as a roundsman. In saying that he was offered back his job as a roundsman, that is not intended to indicate that he was offered a specific round. However, the Appellant refused to accept the offer and in result his appeal was dismissed.It was argued before the Industrial Tribunal that the Appellant had been offered round 12 in terms which were not clear and therefore he was entitled to refuse. He had been on relief on round 12 and he was unsure what would happen when the regular number 12 roundsman returned to work. It was said that there was an ambiguity between the phrase used, according to the Appellant, of "for one week minimum" and the phrase used, according to the Respondents, "one week minimum but indefinite".In this Tribunal, there was a preliminary hearing in which the Court had to decide whether in their view there were arguable grounds of appeal. In the result the Tribunal came to the conclusion that there were two arguable grounds of appeal and this morning, having heard Counsel, we gave leave to the Appellant to re-amend the grounds of the appeal to raise two grounds and these are the only grounds which remain in the appeal. The first ground is in these terms:
"That the Industrial Tribunal erred in law in holding that it was of no significance whether ROUND 12 offered for "ONE WEEK MINIMUM INDEFINITE" and in failing to resolve the dispute at first in which word was used"
On behalf of the Appellant, Mr Monk has submitted that the Industrial Tribunal was in error as a matter of law in failing to resolve the dispute. Counsel relies upon the evidence that, however reluctantly, the Appellant would have accepted route 12 if it had been offered to him on a permanent basis but it is submitted that he was not; therefore the Industrial Tribunal ought to have resolved specifically the disputed question of evidence as to the precise terms upon which he was offered route 12.According to Counsel, the phrase "one week minimum" means simply not less than one week but it does not indicate what the future will be whereas "one week minimum but indefinite" is not less than one week and thereafter it is for an indeterminate period. Mr Monk points out that there is a difference between a relief roundsworker, and a roundsworker namely that the financial reward in the former is different from the latter position. He relies on paragraph 2(e) of the findings for the submission that these are two different jobs and it is said that the position of a relief roundsman may be for an indefinite period but it is not for the foreseeable future which is the right of a man employed as a roundsman.Miss Woodward, on behalf of the Respondents, has submitted to us that there is no point of law involved in the first ground of appeal: that it was a question of fact for the Tribunal and that they have resolved the questions of fact which they had to decide. She has reminded us of limited powers on appeal specifically referring to British Telecommunications PLC v Sheridan [1990] IRLR 154. It is unnecessary for us to repeat any passages from the judgment of the Court. It was a case in the Court of Appeal in which looking at the judgments, it is said that a mere misunderstanding or misapplication of the facts cannot be accepted as a justifiable ground of appeal.Miss Woodward has submitted that the finding that there is no significant difference between the two phrases used is of no relevance. There is a finding of fact as appears from the passage in the decision which we read earlier, that the Respondent had been offered a job for an indefinite period, and that there is no basis for contending that the Appellant might have been entitled to work a particular round as a permanency.

(n) of the decision in which the Tribunal held as follows:

"The respondents, on the other hand, clearly contend that no Rounds Worker has a round as a `permanency'. We feel bound to accept that contention. The terms of contract make it quite clear that no right of permanency is granted to a Rounds Worker on being allocated a particular round."
We do not find it necessary to refer further to the sub-paragraph.The position on ground 1 of the appeal is, in our view, that there is no evidence or finding that the Appellant, when he came back to work at the time of the disputed conversation between the Appellant and the member of the Respondents, was offered work on a relief basis. He was simply offered, on the finding of the Tribunal, work as a roundsman on round 12 for an indefinite period and he could not have been entitled to being offered any round as a permanency. It seems to us without going further into the evidence and the findings, that the Industrial Tribunal was fully entitled to adopt the approach which it did in paragraph 2(m) of the decision. Having given careful consideration to the submissions which are made on behalf of the Appellant in respect of ground 1, we have come to the conclusion that they are without substance and that the appeal must fail.We now turn to the second ground of appeal which is in these terms:
"The Industrial Tribunal erred in how it failed to consider as a distinct issue whether in the circumstances summary dismissal was within the range of reasonable measures which would have been taken by reasonable employers and/or that no reasonable Industrial Tribunal properly directed could have found that it was within that range."
Mr Monk has reminded us that one of the functions of an Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band the dismissal is fair. If it falls outside the band it is unfair: see the judgment of the Tribunal delivered by Browne-Wilkinson J (as he then was) in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 , at page 25. Mr Monk has referred us to a number of authorities in which this Court has held that an Industrial Tribunal must not approach the question of the reasonableness of the dismissal in a rigid way and he has submitted to us by specific reference to Ladbroke Racing v Arnott [1983] IRLR 154 at pages 155 and 156 that the Tribunal must look at all the circumstances which are involved.In support of that criticism of the Tribunal in this case, Counsel has submitted, on the question of reasonableness of the dismissal, that the Tribunal should have referred to the Appellant's long and exemplary service in the sense of taking that fact fully into account. The employers, submits Counsel, adopted an intransigent attitude in considering what steps to take and simply concluded that it was appropriate to dismiss. Counsel also relies upon the evidence of Mr Smith and Mr Webb at pages 40 and 41 and page 45 of the Notes of Evidence to show that the Respondents were vague as to what would happen when the roundsman who was the regular roundsman on route 12, returned to his employment. It is submitted that the Respondents simply stuck to their guns because of the Appellant's attitude to the work and that this itself indicates a lack of flexibility.Counsel finally contended that dismissal was not the only option open to the Respondents; for example, they might have considered transferring Mr Clamp so that he took over route 12 and that the Appellant returned to route 5.On behalf of the Respondent, it is submitted that the Tribunal, in paragraph 1 of their decision, set out the relevant question of law which they had to decide and in paragraph 7 applied their approach to the law. It is appropriate now for us to set out what the Tribunal decided in paragraph 7. They state:
"The reason given by the respondents for the dismissal in this case was one of misconduct, namely the refusal to obey a lawful instruction which, in their disciplinary code, is defined as an offence justifying summary dismissal. The respondents have satisfied us that that was their reason for dismissal and therefore that it was a reason permitted by Section 57 of the Act. It only remains to decide whether or not they acted reasonably in treating that as a sufficient reason for the dismissal. In principle, we are bound to accept that as this was a lawful instruction, within the terms of the contract a direct refusal justifies summary dismissal. It only remains to consider whether or not the procedure followed was reasonable. We are satisfied on the evidence that the applicant was given repeated opportunities, with full representation by his Union, to reconsider his position, but elected to maintain his stand."
Mr Monk refers to the sentence which we have just read from paragraph 7 of the decision that the Tribunal felt "bound to accept that as this was a lawful instruction, within the terms of the contract, a direct refusal justifies summary dismissal". He submits that that sentence shows that the Tribunal was approaching the question which they had to decide in a rigid and inflexible way.In our view, that submission is not justified when the contents of paragraph 7 and the following paragraphs 8 and 9 are considered. First, the reference to the procedures in paragraph 7 is not confined to the procedure of appeal and other matters to which we referred at the beginning of this judgment; the reference to the repeated opportunities which the Appellant was given to reconsider his position shows that the Tribunal was taking into account one of the general circumstances of the case. Indeed, as we mentioned at the beginning of the judgment, it was an agreed fact that even as late as the appeal in the domestic proceedings, the Appellant was repeatedly offered a job as a roundsman, notwithstanding his having been dismissed and that he refused it.Further, matters referred to in paragraph 8, show that the Tribunal was not considering the matter on the rigid basis for which Mr Monk contends. In paragraph 8 the Tribunal state that they must record their regret that a man who has had such an excellent work record as the Appellant has lost his job as a result of what was essentially a failure of minds to meet. That is another matter which the Tribunal brought into the balance. In paragraph 9 they referred to the fact that in discussions which ensued when the Respondents refused to return the Appellant to round 5, he was told by the Respondents that they were not obliged to give him any reason. The Tribunal continue:
"This was strictly correct, but there is no doubt that it must have hardened attitudes. The discussions therefore became confined to the extent of strict rights and duties, where perhaps an explanation of the decision might have produced different results. This criticism, however, does not lead us to any different conclusion as to the reasonableness of the respondents' actions within the terms of the Act."
As is indicated in paragraphs 7, 8 and 9 the Tribunal considered the reasonableness of the decision to dismiss the Appellant in all the circumstances of the case. We cannot accept the submission that they approached matters on a restricted or rigid basis.In ground 2 of the appeal which we read earlier it is also contended that the Industrial Tribunal's decision was perverse. In our view, that submission is wholly unsustainable. In our view this case does not approach within measurable distance of having produced a decision which is perverse.For the reasons we have given we have come to the conclusion that this appeal must fail.