McDade v Masons (A Firm) [1998] UKEAT 1065_97_2011

EAT
McDade v Masons (A Firm)
[1998] UKEAT 1065_97_2011 · 1998-11-20
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Ms McDade wishes to make against the unanimous decision of an Industrial Tribunal held at Ashford, Kent, which rejected her complaints of wrongful and unfair dismissal.The applicant had been employed by the respondents, her former employers, Messrs Masons, a firm of solicitors, from 18th November 1991 until 21st July 1995. It was the respondents' contention that she had been fairly dismissed by reason of her conduct; that it was gross misconduct and therefore her dismissal was not wrongful.The tribunal hearing took place from 7th-10th July 1997, over a period of four days, and the tribunal themselves consulted one another on a fifth occasion before producing their decision which was sent to the parties on 6th August 1997.The tribunal recorded the fact that Ms McDade had appeared in person before them and presented her case with great persistence and considerable skill, and we would say the same of the way she presented her appeal to which I will turn in a moment.The firm of solicitors is relatively large. It has a London office, where the applicant was working, offices in Bristol, Manchester and Leeds, and also overseas offices in Brussels, Hong Kong and China. The London office was divided into several departments. The applicant was initially employed as what is described in her contract of employment as a float secretary. Her place of employment was London, that is the London Office, and the contract of employment, which was drafted by Masons, sets out various terms which do not need to be recited in this judgment.In 1993, as a result of events which do not need to be looked at and following meetings with various members of the firm, the applicant became "attached" to a particular department in which two individuals, named for this purpose, Carmella and Brian worked. The applicant had indicated her willingness to work for those two people on a permanent basis, although if a more senior position became available in the firm she would want to transfer. Initially the relationship between the parties was satisfactory in that attachment, but there developed certain problems. She was given a warning against which she appealed. The appeal was successful and the warning was withdrawn. From about mid-March 1994 until about the same time in 1995 the tribunal record that Ms McDade was working happily and satisfactorily for them. The firm unreservedly accepted that Ms McDade was a highly competent secretary who had particular skills in information technology, that she had progressed her own career by studying at university and studying for a law degree, which she subsequently successfully obtained. As a result of all this hard work the tribunal said:
"15 ... the Tribunal regards it as entirely praiseworthy that she should have been studying for the degree, and is glad to record that she had now attained an LLB degree."
They say this:
"16 In about February 1995, the Respondents decided to formalise the existing situation, whereby there was an informally recognised group secretary in each department who acted, in effect, as a leader for the secretaries in the department, and formally to appoint a group secretary in each department. ..."
Ms McDade applied for such a position but did not get it. She was very upset about this, not surprisingly, and felt that she had been unfairly dealt with in that respect. It was against that background that the tribunal then turned their attention to the matters which immediately led to her employment coming to an end.The tribunal concluded that Ms McDade and Ms Johnson set out to demonstrate to the departmental management that the appointment of the person who got the job as group secretary was mistaken. They did so by pointing out the hours of work that she worked by comparison with the hours of work which they were putting in. There was an incident involving access to a computer terminal which led to the dismissal of Ms Johnson on the grounds of breach of confidentiality. There were also disciplinary proceedings against Ms McDade and the conclusion of those proceedings was that she was given a written warning. At the same time she was told that she would no longer be attached to a particular department, but she would resume work as a floating secretary. It was the respondents' case that this was essentially a management decision rather than as part of the disciplinary process taken against her. Ms McDade appealed against the disciplinary award. The written warning was upheld in one respect but the warning in respect of accessing other secretaries' directories was withdrawn. She was again instructed to return on the float team and regarded that as a demotion, since there was no promise of another fixed position, even though her terms and conditions of her employment remained the same.Ms McDade was repeatedly asked to resume work on the float team and as repeatedly refused to do so. She was told to go home and think about the position and having thought about it to let a person know as to whether she would or would not agree to return to work as directed. She telephoned on Monday, said that she would not be returning to work on the float team, that she would not resign, but that she wished to be allocated a fixed position, working for a named individual or a fee earner of equivalent status and expertise. She was told that the employers might consider her refusal to work as something which would lead to the institution of disciplinary proceedings. She was subsequently dismissed for not obeying what the employers thought was a lawful instruction. Before reaching their decision to dismiss, the applicant was not afforded any opportunity of making representations on penalty. The tribunal recorded that she told them, in evidence and accepted, that had she been given such an opportunity she would have said that she preferred to be dismissed rather than to work as a floating secretary.The Industrial Tribunal's conclusion in relation to this matter was this:
"64 We accept Mr Carr's argument on wrongful dismissal. We have to say we find the Applicant's argument entirely misconceived. We find that transfers within the firm from the position of being a fixed secretary to being a floating secretary and vice versa are not matters which constitute a formal variation of the Applicant's contract so as to require her consent. We accept that the fact that the Applicant had previously always given her consent to a transfer does not mean that her consent was necessary. The instruction to transfer from being a fixed secretary servicing Mr Gegg and another fee-earner in the property litigation department to being a floating a secretary was lawful, and was one which the employers were entitled to give. Ms McDade's refusal to accept it was a repudiatory breach of her contract entitling her employers to dismiss her summarily. For the avoidance of doubt we find that Ms McDade's refusal was intended to operate as such, and was not put forward merely as a negotiating position. The Applicant's contention that she was wrongfully dismissed therefore fails."
The tribunal then in relation to the unfair dismissal find that by refusing to work lawfully as directed, the respondents were justified in treating that as a sufficient reason for the dismissal. Noting on the way their concern by the failure of the firm to afford her an opportunity to make representations as to whether or not dismissal was an appropriate sanction, the tribunal concluded, in all the circumstances, that the employers had adopted a correct procedure and had not acted unreasonably in treating her perceived gross misconduct as a reason for the dismissal. The tribunal went on to say that even if they were wrong about that, she was in their view 100% to blame on the basis that it was their firm view that she was "entirely to blame for the circumstances leading to her dismissal".Ms McDade, quite rightly, concentrated on the issue as to the tribunal's conclusion on the contractual question, because it becomes clear that if the employers' construction of the contract was correct then not only would the wrongful dismissal claim fail but also so would the unfair dismissal claim. She put together a bundle of authorities. We do not consider it necessary to refer to them in the course of this judgment, but she will appreciate that her lengthy skeleton argument, running to seven typescript pages, together with her lengthy oral argument, which she properly presented to us, has been fully considered before the judgment given on this hearing.The issue can be encapsulated in this way. As a result of what happened in 1993 can it be said that her position under the contract as a floating secretary had been varied so that she was a "fixed secretary", so that any change from being a fixed secretary back to a floating secretary would constitute a breach of her contract, unless such a change was agreed to by her. We are bound to say that having considered those arguments with her and put to her a number of the difficulties that might arise if her contention were right, we agree entirely with the Industrial Tribunal's conclusion that she was and remained employed as a floating secretary who from time to time might be assigned to work for a particular department whether on a temporary or more permanent basis. There is nothing in the contract itself to indicate that that would not be the position, and nothing in the facts, as it seems to us, which suggests that the parties considered that the contract of employment was being varied by events that occurred during the course of her employment. It is true that she moved from being fixed to floating and floating to fixed with her consent in the past, but it does not follow that because those events occurred with her consent that consent was a necessary pre-condition to a change taking place. It is obviously true that managers will prefer to manage by consent rather than to manage by compulsion if that is at all possible. In this case there was an issue which had to be confronted because Ms McDade had decided to bring it to a head. She had decided to take a stand on the contractual question. It seems to us, therefore, that there is no arguable point of law as to the contractual terms under which she was working. We agree with the tribunal's decision. We do not consider it reasonably arguable that the tribunal have erred.Ms McDade indicated at one stage that she felt badly done by, by the tribunal because she was not allowed to refer in her evidence to the earlier matters which she said would show that she was being dealt with unfairly and unlawfully. Yet, when one looked at the dismissal letter itself, she said that that showed that the employers themselves were relying on those earlier matters. That seems to us, with respect, to be less than fair. As we understand the letter which contained the decision that she should be dismissed, it seems to us clear that the employers were saying that the reason for her dismissal and the only reason for her dismissal was her refusal to go back to working as a pool secretary which was the job which she was employed to do. Although they refer to the background material, that was said in the letter to be just simply part of the factual matrix against which they had to look at the more recent events. It seems to us, therefore, that this is not a case where Ms McDade has been prevented from exploring something on which the employers were placing relevant reliance in support of their case. It was obvious that if she had decided, as she had, to take a stand on the contractual question, it was not going to be possible for her to continue in her employment, bearing in mind that there was a difference of opinion as to what the contractual rights and obligations were. If the employers were not right on the contractual issue, then she would have both been wrongfully and unfairly dismissed. If they were not wrong, it seems to us to follow, that she would not have been either wrongfully dismissed or unfairly dismissed, assuming that the employers' procedure for dismissal was acceptable. It was the second scenario which has eventuated in this case.Ms McDade has, very unfortunately, made it impossible for the firm to employ her, in circumstances where she has taken the wrong view as to her obligations under her contract of employment. It is obviously sad when this happens. Nothing we have said in this judgment should imply that Ms McDade is other than hardworking, dedicated and competent: a person who is seeking to advance her career in an admirable way. But for the reasons we have attempted to give, it does seem to us that this appeal does not raise an arguable point of law. Accordingly, it should be dismissed at this stage.