OIS Plc v Holder [1994] UKEAT 518_92_0605

EAT
OIS Plc v Holder
[1994] UKEAT 518_92_0605 · 1994-05-06
MR JUSTICE MORISON : Following a two day hearing an Industrial Tribunal held at Cardiff decided that Mr James, whom we shall call "the employee", had been unfairly dismissed by the Appellants whom we shall call "the employers" who are a company called Inspectorate OIS PLC. That decision was entered in the register on 11 June 1992. In essence the Tribunal's decision may be summarised in this way.(1) The employers are engaged in the business of providing an on site testing and inspection service to customers throughout the United Kingdom.(2) The employee started work with the employers on 7 July 1987 under a job training scheme and became a full time employee with effect from 12 November 1987 (we think the date may be 12 December 1987 but it matters not). He never gave cause for complaint in his employment until the matters in issue.(3) On 8 October 1991 the employee was informed that as from Monday 14 October 1991 he was being seconded from his then place of work at Swansea, to Essex, for an indefinite period. He refused the secondment and was advised to sleep on it and told he would be seen the following day.(4) On 9 October 1991 he attended a meeting. It was described in the Minute of it prepared by the employers as an informal disciplinary meeting although the employee had not been told it was such, nor advised that he was entitled to have a friend present. At the meeting, the employers' representative said that the employees were putting forward excuses for avoiding secondment such as sickness. The employee reiterated that he was not prepared to go to work in Essex indefinitely. He said that he was in the process of buying a house and he told the representative that his girlfriend was shortly going to hospital for the removal of a cyst.(5) On the following day 10 October, a further meeting took place between the employee and his base manager. At that meeting the employee reiterated his position but expressed a willingness to go there for a month at a time, alternating with someone else. He gave as his reasons the fact that his girlfriend was about to enter hospital for an operation; that he was anxious to complete the purchase of a house before the end of March; that the secondment was for an indefinite period. The manager suggested the secondment might not continue beyond Christmas, that there would be occasional weekends at home. This did not persuade the employee to change his mind. He pointed out that he had never before refused a secondment.(6) Later that day he spoke to Mr Brookes, a more senior manager. At the conclusion of this meeting the employee was dismissed. At no stage prior to dismissal was the employee warned that his refusal could lead to dismissal.Against the background of those facts the Industrial Tribunal decided the dismissal was unfair. Whilst the employers had determined to make an example of the employee "pour encourager les autres", having regard to all the circumstances they concluded that dismissal was not open to any employer acting reasonably. Further, they noted that the dismissal was in breach of the employers' own disciplinary procedure which provided for warnings. As to remedy, the employee had asked for reinstatement. The Tribunal concluded that:
"That is not an appropriate remedy in the circumstances of this case. The correct way of dealing with this matter is by compensation."
Having assessed the basic award, they awarded compensation for past and prospective losses and awarded the total sum of £6,657.00. By a Notice of Appeal dated 20 July 1992 the employers appealed against the decision on the following grounds:(1) The Tribunal ought to have concluded on the evidence that there was a condition in the employee's contract of employment that he could be expected to work anywhere on reasonable notice(2)The finding of unfairness was coloured or influenced by the Tribunal failing to reach a proper conclusion (namely that advanced in ground 1 as to the employee's contractual obligations)(3)The Tribunal failed to consider any of the reasons advanced by the employers as to why the sanction of dismissal was a legitimate response.The employee served a Respondent's Answer dated 24 August 1992 relying on the grounds set out in the Tribunal's decision. In addition, on 14 September his solicitors indicated that he intended to cross-appeal in relation to remedy namely that the Tribunal erred in law in that they(1) failed to give their reasons for refusing reinstatement.

(2) In calculating the compensatory award

(a) confused the calculation of the compensatory award with the calculation of a basic award by applying to the latter a weekly limit as opposed to applying an overall limit after the calculations had been made.(b) failed to take into account various matters such as pay increases made subsequent to the dismissal, loss of statutory protection for a period of 2 years after the dismissal and the losses and expenses incurred in obtaining other employment.We turn first to the argument about the employee's terms and conditions of employment as to mobility. The Industrial Tribunal commented that the employers' representatives had not been able at the hearing to point to any precise condition on which they relied. What was alleged in the Tribunal was that it was a condition of employment that:

"The employees are expected to work anywhere on reasonable notice."

In the Notice of Appeal the employers contend that it was a condition that the employee could be expected to work anywhere on reasonable notice. What neither statement does is to give the employer power to require the employee to work anywhere. There is a difference between an expectation that someone will do something and a power to require him to do it. Further, there is a difference between an employee expressing a willingness to travel and a power to make him do so. A willingness to travel is consistent with consent being required before the employee travels.The facts appear to us to be that the employee was asked at his interview whether he was willing to travel and, except during the period of his training, he indicated a willingness to travel anywhere in the United Kingdom, or abroad, for up to 6 months at a time. He was taken on as a trainee. He was then considered for permanent employment and in the employee's starter's form his project location was described as "Swansea based".Shortly after he was taken on to the permanent staff he was given a statement of his terms and conditions of employment pursuant to section 4 of the 1972 Act. Under location is put "Swansea". Paragraph 16 of that statement provided as follows:
"Technician/s terms of employment will be subject to such General Instructions, Company Notices and Rules and Regulations as the Company may issue from time to time, and which are generally included in the Company Handbook."
The employee did not recall being given a handbook but we have a copy of the 1989 edition. Under paragraph 3 of the handbook is this provision:
"The notes in this booklet are regarded as forming part of your Contract together with the terms contained in your offer letter and are issued pursuant to the Employment Protection Act 1982."
There is, of course, no such Act.Under the heading "Overseas Assignments" appear the following words:
"Whilst personnel may be required to work anywhere in the UK, employees may also be given the opportunity periodically to work outside the UK.
Those assignments are regarded as a normal and necessary part of an employees career development and if an employee is required to work overseas the financial arrangements for the assignment will be discussed at that time.Obviously at the end of an overseas assignment the employee automatically reverts to UK conditions of employment."The first statement does not give the employers the power to require employees to work anywhere within the United Kingdom; it is a statement that the employers have such a power and therefore we must look elsewhere for it. It would be surprising if the statement was intended to give the employers the power: first, because it appears under the heading "Overseas Assignments" to which this clause is directed; secondly, the context in which the word "required" is used suggests that it means no more than "asked". An overseas assignment was to be subject to discussions as to terms and conditions. In other words whilst the employers could "require" an employee to work abroad, he would be ceasing to work on his existing terms and conditions and will be working "under conditions to be agreed". Thus the requirement to work abroad was no more than a requirement to work abroad on terms to be agreed and was thus no more than a request to work if terms could be agreed. We think the word "required" should be construed consistently whenever it is used in that provision.Some time in February 1991 the employers issued what were called "Swansea Base Rules". The first paragraph of this document, whose contractual status is far from clear, says under the heading:
"WHILST THESE RULES MAY NOT BE WHOLLY APPLICABLE TO THE BASE WHERE THIS MANUAL IS HELD, THEY ARE GENERAL GUIDELINES.
The instructions detailed below do not replace any existing company rules or instructions. It is intended that they shall supplement in order that base operations shall be smoothly executed".The relevant provisions of this document are to be found at 5(c) as follows:
"Secondment to other locations in Southern Region and Company:
Whilst company policy is to secure contracts such that employment close to home base is maximised, this is not always possible, particularly as regards shutdown projects.Security of employment in Southern Region for maximum numbers of technicians is dependent upon the company servicing requirements of all our customers, not just those in South Wales.All technicians are expected to travel on such secondments as necessary, often at short notice (24 hours) for short term periods (up to two weeks), and medium term periods, up to 48 hours notice (4 weeks to first long weekend). Long term secondments (6 months or longer) will only be made with mutual consent.On the evidence the Tribunal found, as they were entitled to do, that he was being seconded to Essex for an indefinite period (paragraph 3). If the provisions of this document are contractual, then it would appear that such a posting could only be with the employee's consent. If this document was not contractual then there is still an absence of a power in the employer to require let alone a power to require on reasonable notice, an employee to move.The contractual documents in this case are obscure and the employer may well consider that an improvement to its standard terms and conditions could readily be made, making clear what the rights and obligations of the parties are. It seems to us therefore that the first two grounds of appeal fail as a matter of the proper construction of the contractual arrangements. We agree with the Industrial Tribunal that there is no power in the employer to order an employee to work elsewhere.We have to say that even if the power was, as is claimed in the Notice of Appeal, a power to transfer on reasonable notice, the notice given in this case was far too short having regard to the obvious disruption to the employee's private life. No reasonable employer would have dismissed an employee for refusing to move at such short notice and no reasonable employer would have dismissed an employee for not moving without expressly warning him that dismissal would follow a refusal. There is nothing in the appeal on liability in our judgment and accordingly we dismiss it.We should add, in deference to the argument which has been presented to us on behalf of the employer, that we do not agree that the Tribunal have erred in any way in not dealing expressly with all the points that were made on behalf of the employer during the course of the hearing and in argument on their behalf. A Tribunal's decision is not to be criticised for not dealing with every matter, crossing every "t" and dotting every "i". In our judgment there is no merit whatever in the criticism that was made that the Tribunal have, in some way, failed properly to deal with the employers' case. This was a very clear case in our judgment of unfair dismissal and accordingly we think that the appeal must be dismissed.The parties have managed to come to terms in relation to the cross-appeal. Accordingly it is not being argued before us and it is withdrawn and therefore we need make no Order in relation to it.