Sisson v BPCC Business Magazines (Carlisle) Ltd [1994] UKEAT 644_92_0509

EAT
Sisson v BPCC Business Magazines (Carlisle) Ltd
[1994] UKEAT 644_92_0509 · 1994-09-05
MR JUSTICE TUCKER: This is an employee's appeal against the decision of the Industrial Tribunal sitting at Carlisle on the 1st and 2nd April 1992 that her dismissal was fair. There were other complaints before the Tribunal, those of sex discrimination and equal pay but the findings on those complaints are not now challenged.There is a cross appeal by the employers relating to the Tribunal's decision on s.62 of the Employment Protection (Consolidation) Act 1978 now contained in Sections 237 and 238 of the Trade Union and Labour Relations Act 1992.It has been agreed by the Solicitors who represent the parties before us that if the main appeal fails it is not necessary for us to consider the issue raised on the cross appeal.As the appeal proceeded it became clear to us that the Appellant had certain difficulties in her way and we have therefore heard argument only on the substantive appeal. We have not invited nor received submissions, therefore, on the cross appeal.The decision of the Industrial Tribunal was a full and careful one with one reservation which we would make as will appear. The Respondent to this appeal BPCC Business Magazines (Carlisle) Ltd are, as their name would imply, in the business of printing magazines. They are part of a larger group. The Appellant, Mrs S Sisson became employed by the Respondents on the 12th December 1988 as Secretary to the Directors at Carlisle. Her starting salary was £7,750 per annum which increased by several stages. But it was clear that the Appellant became dissatisfied with the level of her remuneration. She requested a move to the established Grade I clerical salary structure which had been agreed between the Respondents and the Union. But at that stage the Appellant was not a member of the Union and in any event the work which she did would not have entitled her to such recognition. By the 4th January 1991 the number of Directors at Carlisle had reduced from 3 to 1, Mr Wheeler. On that day the Receptionist and Typist left.
"Therefore Mr Wheeler informed the Appellant that he had asked Mr Leech, who is in charge of the Production Office to divert typing for that office to her. Mrs Sisson's response was to decline to undertake any additional work until she had a further discussion with Mr Wheeler about what she called `my situation'."
We take these facts from the decision of the Tribunal at paragraph 3(e).On Monday 7th January Mr Wheeler and Mrs Sisson had a further discussion at which, according to him, when he asked why she was unwilling to accept typing for the Production Office, Mrs Sisson replied that she wished her salary to be improved as she felt she was paid insufficient by comparison with other people. Mr Wheeler reminded her that she had accepted the job in December 1988 with full knowledge of its terms and conditions since when she had a number of wage increases. However, he said that he would carry out a further comparative study of her salary and other salaries paid elsewhere in the Group but he made it clear that he would not meanwhile tolerate any form of selective approach to her work. Mr Wheeler informed the Appellant that her salary would not be increased nor would she be placed on the Clerical Grade structure. There were further discussions between them during that week during the course of which Mr Wheeler informed the Appellant that as a result of his enquiries he had concluded that she was being paid a reasonable salary for the job which she was being asked to do. However, he did say that if she was prepared to broaden her skills he would consider moving her to the Clerical Grade structure. He repeated that he would not tolerate a selective approach to her work but stated that if she had too much work she had authority to pass it to an outside typing agency. The surprising response by Mrs Sisson was that she was thereby being asked to assume a managerial responsibility, namely, assessing her own work load and that she was only prepared to do work generated personally by Mr Wheeler. To Mr Wheeler's surprise she asked to be considered for redundancy although her position was by no means redundant.So we come to the 29th January 1991. Mr Wheeler saw Mrs Sisson again that day and dismissed her. He informed her that in his view the situation had gone on for far too long as throughout the appeal period she had refused to do any work not generated by him personally. He said that he was not prepared to continue any longer with her selective role and that their relationship based on mutual confidence had broken down. He offered her a choice between dismissal for refusing to comply with his instructions and redundancy with a payment. She opted for redundancy and he gave her the further choice of staying to clear up outstanding matters or leaving immediately with full pay in lieu of notice. She chose the latter course and left the Company shortly afterwards. Mr Wheeler confirmed the dismissal by letter on the following day.Dealing with the complaint of unfair dismissal the Tribunal found in paragraph 4 of their decision that Mrs Sisson was taking part in other industrial action at the time of her dismissal, since they were satisfied that she was refusing to carry out duties which properly fell within the description of her position as Secretary to the Directors at Carlisle Web Offset. They found that the reason and the only reason for her dismissal was her conduct, namely her persistent refusal from the 4th January to the 29th January to comply with Mr Wheeler's instruction that she should do the typing from the Production Office or arrange for such of that typing as she could not do herself to be typed by an outside agency. The Tribunal say this:

"As we have already held, that work was within her duties"

that is an important finding.They record that:
"Mr Wheeler had made it perfectly clear to her on a number of occasions, as indeed she admitted in her evidence, that if she continued to be selective in the work which she chose to do her employment would be terminated. That is precisely what happened . . . we have no doubt that it was within the range of options open to a reasonable employer to dismiss Mrs Sisson for the reason for which she was dismissed but we have reservations about the procedure adopted by Mr Wheeler."
Thus, they record, that the Appellant had written to another gentleman:
"asking for advice as to how she should proceed under the Company's Grievance Procedure. Not only did she not receive a reply to that letter but Mr Wheeler without more ado dismissed her"
There was a Grievance Procedure, but the employers, the Respondent to the appeal, maintained that its Grievance Procedure had not then come into force although its terms had been agreed in negotiations with the Trade Union. Nevertheless the Tribunal considered that any reasonable employer would have allowed the Appellant to have pursued it to the fifth stage. The fifth stage was a reference to ACAS as is set out in the document in these terms:
"If still unresolved the matter may be referred to ACAS on terms agreed between the parties."
The Tribunal continued to say this:
"On the other hand, the same procedure provides on the same page that for the duration of the complete procedure no hostile action of any sort should be taken by any party nor should there be any changes to normal working practices and arrangements. Mrs Sisson was in clear breach of that provision. Our overall conclusion is that this is one of those cases where Mr Wheeler was justified in taking the view that to have prolonged the process would have been utterly useless since Mrs Sisson was determined to remain on her collision course in pursuit of an increase in salary by wholly improper methods."
We remind ourselves that sitting here in London we do not have the great advantage which the Tribunal had sitting in Carlisle of seeing the parties. They saw Mrs Sisson giving evidence before them and they formed their own view of her.It is a pity that the Tribunal did not make a clear and express finding as to whether the Grievance Procedure was incorporated into the Appellant's contract of employment. We are, it seems to us, being asked to find that the Tribunal implicitly found that it was so incorporated. This we decline to do. We do not see how it could be sensibly suggested that it was, since the Appellant was not a member of the Union at the time when the procedure was negotiated and when, it was apparently the case, that the procedure had not come into force at the date of her dismissal. In any event it is not for the Employment Appeal Tribunal to make findings of fact or to interfere with such findings made by the Industrial Tribunal. The only exception is where the Tribunal's findings of fact can be categorised as being perverse, which in our opinion, is certainly not the case here. In any event the Tribunal assumed in the Appellant's favour that a reasonable employer would have allowed the Appellant to have pursued her grievance to the fifth stage. The difficulty that confronts the Appellant is twofold, first, that that fifth stage is discretionary. Discretionary in two respects, first of all as to whether the matter should be referred to ACAS at all, and second, as to the terms agreed between the parties of reference to ACAS.The second matter which causes the Appellant difficulty is that any procedure, whether express or implied, is assumed to incorporate the provision contained within it that has been referred to. That is to say that it is agreed that for the duration of the complete procedure no hostile action of any sort shall be taken by any party. The Tribunal found, as they were entitled to do, that the Appellant was in clear breach of that provision. They accordingly found, that she was taking hostile action. They were completely justified in reaching that conclusion. It certainly could not be categorised as a perverse finding which no reasonable tribunal could make. She was persistently refusing to carry out instructions. The position here was that the Appellant was not being asked to do anything unreasonable or anything which was outside the terms of her employment. It is submitted on her behalf that the duration of the refusal was only short and not such as to invalidate the provisions of any grievance procedure. We disagree. The Appellant was in our view steadfastly and persistently, over a period of weeks, refusing to carry out the legitimate instructions of her employer. It could not be said that her hostility was temporary or transient or such as to displace a grievance procedure. In our opinion the Industrial Tribunal had the material before it which fully entitled it to conclude, as it did, that the dismissal was fair.Accordingly, this appeal is dismissed. The decision of the Tribunal is upheld. It has not been necessary for us to consider any further ground of appeal nor, as we have indicated, the cross appeal.Costs were refused.