Watkins v Hanway Stationery Ltd [1994] UKEAT 721_93_1412

EAT
Watkins v Hanway Stationery Ltd
[1994] UKEAT 721_93_1412 · 1994-12-14

JUDGE BYRT QC :

This is an appeal from the decision of an Industrial Tribunal sitting at London North on 10 March 1993. They reached a unanimous decision that the employee, in this case the Applicant Mr Watkins, had been unfairly dismissed but found that he had contributed to his dismissal to the extent of 55%. Mr Watkins appeals against that latter finding.Initially there was an employers' cross-appeal which sought a reduction of the award still further on the grounds that Mr Watkins would have lost his employment in any event. Mr West who has appeared before us on behalf of the employers has withdrawn that appeal so we do not have to consider it. The facts upon which the Tribunal based its decisions are as follows and I must go into them in a little detail.The Respondents are a small Company employing some 10 people with a turnover of approximately £1M per year. They have been in business for 15 years supplying stationery to a variety of sized businesses. Mr Watkins was employed by them since September 1988. He answered an Evening Standard advertisement in which the Company sought an accounts assistant. Mr Payn was the managing director of the Company and he says that he made out a list of functions and discussed them with the various applicants that who initially contacted him including Mr Watkins. These included filing, typing, VDU work and general office duties including answering the telephone.In addition to that, there was a face to face interview with a Miss Bourne who was the accounts manager (by the time of the Tribunal hearing she had married and become Mrs Lewis). She says, just as Mr Payn had, that she had discussed the various duties with Mr Watkins although it was not specified the time when or the proportion of time he sould spend on telephone calls. Following his interview, Mr Watkins accepted the employment. It happens that the Company had no switchboard operator. The telephone was answered by the Accounts Department. That was a recognised procedure and initially that function was fulfilled by an office junior in that department. The next in line for taking calls if for some reason such as being at lunch, away on holiday or ill the junior could not be there, would have been Mr Watkins. The office was open plan and so consequently it was easy for Mr Watkins to see when the office junior was detained or otherwise engaged and therefore his help and input needed.At first the Company was successful during the time of Mr Watkins' employment with them but in 1991, along with many other companies, it was hard hit by the recession and on 9 July they had to declare redundant the office junior who had fulfilled this function of answering the telephone. From then on, Mr Watkins became first in line to answer the telephone. He was helped and assisted by Mrs Lewis the accounts manager who became second in line. This change in the specification of Mr Watkins's work was accompanied by an explanation given to him by management to the effect that as soon as business picked up, another office junior would be re-employed. Although the emphasis of his work schedule necessarily was now shifting somewhat by reason of his being the first in line to answer the telephone, Mr Watkins understood the situation and helped out.In October 1991 he had the opportunity of meeting up with Mr Payn. Apparently, this company ensured that management met all its staff every 3 months, and it was at such a meeting with Mr Payn that Mr Watkins had the opportunity of asking him what was going to happen about the re-employment of another office junior. Mr Payn stated that there was no hope for the time being of somebody else being re-employed. It appears that the management fully understood the extra strain this placed upon Mr Watkins in fulfilling his other functions and feels, according to the Tribunal:
"It was obvious that the Applicant's other work being interrupted did not cause any concern to the Respondents."
In the January 1992 Mr Watkins had a further discussion with management and he was told there was no hope yet of a re-engagement of a junior officer. At that same meeting Mr Watkins was offered a 1% pay rise and he was not happy about that to say the least. He thought that his increase in salary should have been considerably more bearing in mind that he was now at that stage having to undertake extra work namely the functions of junior office clerk as well.Mr Payn pointed out that he had had something like a 40% increase in his salary since joining in 1988 and assured him that he would be paid overtime if overtime became necessary. Mr Payn ended the discussion by telling Mr Watkins that the economy was apparently picking up but along with an awful lot of other people on the sidelines that did not give Mr Watkins all that much encouragement or re-assurance.From that time on, the Tribunal found that an element of friction crept into the relationship between Mr Watkins and management. They found that Mr Watkins continued to do his job satisfactorily and that there were no complaints by management about the work he did. However, it was thought that Mr Watkins appeared to be less flexible and much less co-operative. So matters proceeded until 25 February 1992. On that date, Mr Watkins had the opportunity of speaking to Mrs Lewis. He said he was unhappy at being considered the first in line to answer the telephone and Mrs Lewis undertook to talk to Mr Payn about it. She did just that and a decision was reached by Mr Payn that there was no sense in recruiting an extra member of staff as yet and that Mr Watkins must be asked to bide his time and patience for some time longer.Mrs Lewis gave Mr Watkins that message but he was not accepting it. He asked to see Mr Payn and indeed an arrangement was made that there would be a meeting between the two at 5.30pm that afternoon. However, at some stage during the course of the day before the appointment there was, as the Tribunal found a telephone conversation during which Mr Payn is said to have said "If you wont do it (that is answer the telephone) I have to get rid of you". Mr Watkins made a note of that discussion and having considered the matter the Tribunal accepted Mr Watkins' evidence about that.When the meeting began at 5.30 pm, there was something of a strain between the parties. It had an unpromising start as Mr Watkins announced that he could spare Mr Payn only a little time as he had to leave fairly promptly in order to catch a train. Thereafter a discussion took place about whether Mr Watkins would continue to answer the telephone. This focused on whether it was part of his job to do so, whether it was part of his contract. The result of it was that Mr Watkins said he would no longer continue to work the telephones and indeed he gave notice to management that he would stop answering the telephone in one week's time.Mr Payn did not back down on being presented with that ultimatum. He said that he was proposing to make no alternative arrangements for answering the telephone, that it was Mr Watkins' job to do that, and that if he did not do it, then he would have to resign. Mr Watkins said he was not resigning and indeed was going to stop answering the telephone on the Tuesday. He then added "If you want to talk more about this tomorrow that is fine. I have to go now". Mr Payn replied "If you are not going to do the job you might as well leave now". Mr Watkins then asked "Could he come in next day and collect his belongings". Being told that he could do so, he did just that. He came back on 26 February, collected his personal belongings, and asked management for a letter stating the reasons for his dismissal.It was in evidence before the Tribunal that Mr Payn said he had been stunned by Mr Watkins approach at that interview. He said he did try to discuss the problem with him to find a resolution but Mr Watkins would not discuss it. He said he felt he had been provoked by Mr Watkins who seemed all along to be working to a settled and considered plan.On that evidence the Tribunal had to make some important findings of fact and the first they made was to the effect that there was a material change in the nature of the work Mr Watkins was being asked to undertake as a result of the declared redundancy of the office junior at the end of July 1991. Whereas when he initially joined the Company the proportion of time spent on answering the telephone was approximately 10%, this had in fact increased as a result of the disappearance of the office junior, to something like 30%-35%. Their finding was that although this was a material change it was not a highly significant one, but they accepted that the change undoubtedly eroded some of the job satisfaction Mr Watkins would have got from his job.They then went on to make other findings. They found that, at the meeting of 25 February, Mr Watkins was not prepared to discuss the problem with Mr Payn and that he did nothing effective to keep his job. The next day Mr Watkins came to work, collected his personal belongings, and asked for the letter of dismissal. Mr Payn declined to give him one and that is the subject matter of a second appeal in this particular case. The Tribunal considered the appropriate questions they had to consider under section 57, and the first was whether there had been a dismissal. The Tribunal found that there had been, namely on the 25 February. They were satisfied that the dismissal was due to Mr Watkins' conduct. They then asked themselves whether the dismissal had been reasonable having regard to the size and resources of the Company. They found that Mr Payn had not been prepared for the situation with which he was confronted on 25 February and as a result had, doubtless, handled the matter somewhat more ham-fistedly than otherwise he might have done. They found that Mr Watkins was denied the opportunity to state his case properly, that Mr Payn gave no consideration to alternative ways of dealing with the matter and further found that Mr Watkins had been given no adequate warnings before dismissal. As a result of that, they came to the conclusion that there was no alternative but to find that the dismissal had been unfair.The Tribunal then went on to consider the question of contributory conduct by Mr Watkins. They found that Mr Watkins had accepted by September 1991 that there would be no office junior for the foreseeable future. Notwithstanding that realisation, he had continued to work without making any formalised complaints or raising any formal protest or grievance. In consequence, the Tribunal continued, the employers were lulled into a false sense of security by his continued co-operation, handling the telephone and so on, into believing that Mr Watkins accepted his responsibility to answer the telephone as being part of his contract. The Tribunal went on to find that the employers had reasonably argued they were acting within their contractual rights to determine the contract because of Mr Watkins' refusal to answer the telephone. Their third finding, was that Mr Watkins had brought matter to a head at the meeting of 25 February and the fact that he had done nothing to protect his job on that occasion, they found to be foolish. It seemed to them that he was more interested in catching his train.On the strength of those findings they found that Mr Watkins was responsible for his own dismissal to the tune of 55%. They then went on to consider the application made by Mr Watkins under section 53 for a compensation payment for their refusal to provide him with the letter of dismissal. The Tribunal found that the employers had a genuine belief that Mr Watkins had dismissed himself and that in consequence there was no dismissal for which they were responsible. They directed themselves that the belief had to be reasonable and they came to the conclusion (as I say the employers had the belief that they had not dismissed Mr Watkins and that their belief was reasonable) having regard to the complex legal situation which had arisen as a result of Mr Watkins having over a period of time taken upon himself the duties of the office junior in answering the telephone that the employers had been reasonable in their refusal to provide reasons for dismissal and accordingly they dismissed the application for compensation.Mr Watkins, who has argued his case in person, made three points in dealing with the question of contributory conduct. First he says that the Tribunal in effect were obliged to settle the contractual issue between himself and his employers, namely as to whether the terms of the contract did include answering the telephone. Mr Watkins, very fairly and frankly, accepted that under the terms of his contract he was obliged to answer telephone calls to the tune of approximately 10% of his time but he said that, by the time that percentage had risen as the Tribunal found to 35%, the requirement in this respect had altered the nature of his job so that in complying, he was acting outside the terms of his contract. He says that the Tribunal should have made a determination to that effect and, having done so, it should have decided that he could not be blamed for refusing in future to take on that additional burden, and so could not be blamed for the dismissal that followed.Secondly he says for the Tribunal to hold against him that he had co-operated since September 1991 was plainly was unfair and wrong. I could not be constured as culpable behaviour of the sort that must be found before an employee can be found to be partly responsible for his own dismissal. He was co-operative. He volunteered the extra help with the telephone and how could he be said to be blamed in that respect.Then there was a third heading that Mr Watkins relied on. He said that the Tribunal relied upon a number of facts set out in paragraphs 17 and 31 of their reasons and in general terms he said there was no sufficient evidence to justify their findings in respect of those matters.Mr West, on behalf of the employers here said on the question of contributory conduct - "The Tribunal has to approach its determination here with a broad commonsense view" and he cited the case of Maris v Rotherham Corporation [1974] ICR 435. He said that once the Industrial Tribunal had formed its judgment about the matter, having seen the witnesses and sensed through their evidence the balance of responsibility for the argument on 25 February and the eventual dismissal, the Employment Appeal Tribunal must be very slow to find it in error lest in doing so it would in effect be substituting its own views for the decisions and findings of the Tribunal. He submitted that there was evidence before the Tribunal to justify the views they had expressed in paragraph 17 and 31 and indeed he pointed to the concession Mr Watkins made frankly and fairly, during the course of his argument before us today, that to some extent he could see how he was contributory to his own dismissal on 25 February, Mr West says that this difficult and important issue relating to contributory conduct was a matter for the Industrial Tribunal to decide. It had decided and it was not really for us to alter their decision.He further went on to state that it was not necessary or indeed right now for the Industrial Tribunal to set about trying to decide the legal rights and wrongs of what Mr Watkins' contract was. He said that Mr Watkins had generated a direct conflict with his employers on 25 February which, with good reason and goodwill, was capable of being avoided and should have been resolved. He said that the Tribunal's task had been to assess the responsibility of the respective parties for the failure on 25 February to resolve the matter without Mr Watkins being dismissed.On this first substantive issue the Employment Appeal Tribunal's decision is as follows. We recognise that it was a most unfortunate dispute which occurred on 25 February. Mr Watkins, irrespective of what the terms of his contract had been, had for a period of time since July 1991 according to the Tribunal's findings, been enthusiastic, co-operative and supportive of the Company in covering the gap which was exposed when the office junior was released on a redundancy basis. To that extent, Mr Watkins must be congratulated on the attitude and approach he adopted at that particular stage. However, in law, the terms of his employment can be deemed to have been varied when the employee goes on working without registering the variation which has taken place in his work schedule to be a voluntary commitment, or without making some formalised protest or raising it as a matter of grievance. The danger is that it can create a new term in the contract.In this particular case the Tribunal have found that the Company, the employers, were led to believe that there possibly was such a new term and as a result induced Mr Payn on 25 February to take up a somewhat more rigid position about Mr Watkins' obligation to answer the telephone than perhaps might have been justified. At the meeting on 25 February there was a clear dispute about telephone answering and it should, as the Tribunal found, having regard to the fact that the relationships between the employer and employee had not entirely broken down, it should have been capable of resolution by a little reasonable and co-operative discussion.The Tribunal made findings as to why this had not happened and thereafter proceeded to apportion blame between the employers on the one hand and Mr Watkins on the other. In their wisdom they came to the apportionment of 45% and 55% respectively. It is argued that there was clear evidence, as recorded in their reasons, how and why they came to that apportionment. We are not saying that we would necessarily have agreed with their apportionment had it been for us to decide such matters. There was clear evidence though upon which the Tribunal came to the decision it did and we take the view that it is not right or proper or our role to interfere with the decision of the Industrial Tribunal in that respect.We now come to consider the last aspect and that is the refusal of the employers to give a statement of the reasons for Mr Watkins' dismissal. The Tribunal found that Mr Payn, at the time of his refusal had a genuine belief that there had been no dismissal. Mr Watkins says that to comply with section 53 of the Act having a belief is not sufficient, it has to be a belief which is reasonably held. The Tribunal found a belief but did not proceed to examine whether that belief was reasonably held, and Mr Watkins says, it was difficult for them to find that it was reasonably held in view of the fact that on 12 May 1992 a date some 3 months after his dismissal on 25 February, Mr Payn had written to the Industrial Tribunal to the effect that Mr Watkins had given him little choice other than to dismiss him. There, he says, was a plain acknowledgment that Mr Payn knew very well that, on the 25 February he had dismissed Mr Watkins.Mr West's arguments against that is first that the letter written on 12 May 1992 is an irrelevance. The Tribunal had to determine what Mr Payn believed and whether it was reasonable in the circumstances which appertained on 25 February, and not in a letter written some 3 months later. Belief as at that latter date, was not relevant.Second, he goes on to say that the reason or reasons which influenced the judgment of an employer when he believes that there was no dismissal, do not have to be reasons such as to logically justify the decision made and he cited to us two cases - Brown v Stuart Scott & Co [1981] ICR 166 in which Waterhouse J, at page 171 of the report, talks about the circumstances where a Tribunal comes to a conscientious view of the matter. Waterhouse J says this:
"Of course, in the ordinary case where an employer conscientiously believes that there has been no dismissal and refuses on that ground to supply a statement under section 53(1), an industrial tribunal will usually not be prepared to find that there was an unreasonable refusal."
In the case of Broomsgrove v Eagle Alexander Ltd [1981] IRLR 127 May J, as he then was, came to a somewhat similar conclusion in respect of what he described as a "genuine dispute" on whether a dismissal had taken place. Mr West said that, in this case, the employers did entertain reasonable grounds for their belief which was reflected in a genuine dispute conscientiously entertained and that that would be sufficient.This Tribunal accepts Mr West's submissions about this. In paragraph 33 of their reasons the Tribunal clearly thought that Mr Payn had a genuine belief resulting in a genuine dispute as to whether Mr Watkins had been dismissed. It found that he had conscientiously held that belief and goes on to justify its position by saying that the questions of resignation, dismissal and self-dismissal involve difficult legal concepts which are not easy to understand and which in this case they found or thought probably had been misunderstood by Mr Payn. Against that background, they, in our judgment, implicitly held that the belief entertained by Mr Payn of 25 February was one which he reasonably held. Mr Watkins accepted that had Mr Payn received legal advice about this question, even if that advice had been wrong, that would have been sufficient to enable the Tribunal to find that Mr Payn's belief was reasonable. The Tribunal recorded in its reasons to record that they thought it a pity that Mr Payn had not sought legal advice upon this particular point. However, having directed themselves to that specific aspect of the case, they went on notwithstanding to hold that Mr Payn's belief on the critical day was a genuine belief and that therefore Mr Payn was entitled to refuse to make the statement. The Employment Appeal Tribunal concurs and agrees with and certainly finds that it was a position the Industrial Tribunal was entitled to entertain, that that was the case.Having regard therefore to our views about the element of contributory conduct and the refusal of the quest for the statement setting out the reasons for dismissal, this appeal must be refused.We would like to make just one further observation before finishing. We have already recorded the fact that Mr Watkins has addressed us and argued this case before us on his own. Without in any way appearing to be patronising, we would like to say that we found his arguments forceful, logical, moderate and, notwithstanding the fact he has not succeeded in this case, the way he addressed his arguments to the Tribunal has enabled us to come to a decision which he may not accept, but we believe is the better for the arguments he has advanced before us.