Sutrak (UK) Ltd v Coggin [1998] UKEAT 1339_97_1901

EAT

Sutrak (UK) Ltd v Coggin

[1998] UKEAT 1339_97_1901 · 1998-01-19

MR JUSTICE KIRKWOOD : This is a preliminary hearing in an appeal by Sutrak Ltd from a decision of an Industrial Tribunal sitting at Bedford on 16th and 18th September 1997 that the respondent to the appeal, the applicant before the Industrial Tribunal, Mr D Coggin, had been unfairly dismissed. The appellant also seeks to amend its notice of appeal to enable it to pursue an appeal also against a decision of the Industrial Tribunal at Bedford constituted in the same way and sitting on 23rd October 1997 as to remedy.

Mr D Coggin and three others were employed by Sutrak UK Ltd in the business of providing engineering services for the maintenance of, primarily, the air conditioning systems in commercial vehicles. It appears that amongst those four men there had arisen discussion at least about the prospect of negotiating better terms of payment in relation to work at unsociable hours. It seems that two of the four men formed the idea that two particular contracts that were coming up might provide them with that opportunity.

In January 1997 the appellant Company had the business of a customer, London United, which required work to be done in London and during the hours when the commercial vehicles would not be in commercial use, namely at night.

On 22nd January 1997 a meeting was held between a representative of the employer and the four engineers about working a night roster for the London United contract. That meeting came to a head when it was put to the engineers that either they agreed to do the work or effectively, because the financial state of Sutrak, their jobs were in jeopardy.

Three of the engineers agreed there and then to work the roster the employer imposed which was substantially different from the normal working arrangements. As the Industrial Tribunal found the employer asked Mr D Coggin "Will you work the night rota?" Mr Coggin replied "No, but I want to think about it overnight." He was told he must answer now. So he said "In that case I might as well leave." He was told to go and collect his things. The Industrial Tribunal found that the effective ultimatum put to Mr D Coggin was oppressive, peremptory and repudiatory. The Industrial Tribunal found that the employer's cavalier handling of the whole matter is underlined by the contents of a letter wrote to Mr Coggin which, if not a sham, was disavowed by most of the subsequent variations of the employer's case.

The first ground upon which the employer seeks to appeal against the decision is that the Industrial Tribunal was wrong not to find that Mr Coggin was engaged in industrial action so that by virtue of relevant legislation the case fell outside the jurisdiction of the tribunal as to unfair dismissal.

It is perfectly plain that the argument was put forward by the employer to the tribunal and the tribunal considered it carefully and rejected it. The tribunal reminded itself of the words of Stephenson LJ in an earlier case that "an industrial tribunal ... may be trusted to recognise industrial action when they see it ...". The tribunal said:

"28. We see no industrial action here. That is our decision on an objective view of the evidence without regard to whether the Applicant or Respondent were in breach of contract or to any gloss they put upon events then or now. We believe, nonetheless, that industrial action was neither recognised by nor recognisable to either side at the date of the dismissal. In saying that, we do not belittle the Respondent's right to conjure it up from facts upon which a different interpretation was placed at the time. We are grateful to Mr Galway-Cooper for his careful and most courteous submissions on this uneasy area of the law, to which we have given due consideration before rejecting them."

The point that the appellants seek to make is that in fact that the Industrial Tribunal made its finding in the face of what is described as "unchallenged" evidence from two of the other engineers, Mr Sankey and Mr Botterill. We have been referred to the statements that those witnesses made and which they read to the Industrial Tribunal and which were not, we are told, challenged by cross-examination upon them. What they show, if acceptable, is that whilst Mr Sankey and Mr Botterill and perhaps others, had contemplated using the London United contract as an opportunity to negotiate or try to negotiate new and improved terms of remuneration, when they heard of the perilous financial position of the company, they realised they had got their timing badly wrong and in the result both Mr Sankey and Mr Botterill immediately and readily agreed with the employer's proposals for work on that contract without more ado.

The difficulty in the face of the appellant does not end there, because the Industrial Tribunal made specific findings about Mr Sankey and Mr Botterill. I should preface this part of this short judgment by saying that the Industrial Tribunal made it clear that they were unimpressed by the evidence for the employers and preferred the evidence for the applicant, Mr Coggin, before it. On the subject of Mr Sankey and Mr Botterill what the Industrial Tribunal said was this:

"19. Finally, as to the last alternative construction which the Respondent invites us to put upon the facts in this case, we find no credible evidence to support the suggestion that the Applicant was taking part in industrial action. We have to say that we found the evidence of Mr Botterill and Mr Sankey, and in parts that of Mr Adams and Mr Neale, unpersuasive, bearing the hallmarks of having been prepared too much in concert."

So the Industrial Tribunal had the evidence before them and did not accept it.

The appellant seeks to put his case forward upon the premise that if evidence is read and not challenged then it must be accepted. That is a misunderstanding of the judicial role. The Industrial Tribunal were perfectly entitled to consider that material in the light of evidence before it as a whole, and reject it without the necessity of a traverse on behalf of the applicant. This aspect of the appeal is solely an evidential matter and no error of law is demonstrated to us in the approach that the Industrial Tribunal took.

The second argument that the appellant seeks to deploy is that the Industrial Tribunal erred in rejecting evidence that Mr Coggin would have been dismissed in any event.

What happened was that when the case came to the remedies hearing Mr Adams, by whom the Industrial Tribunal had not been over-impressed on the liability hearing, put in a written statement in which he said:

"If Mr Coggin's contract of employment had not been terminated in the way that it was, then it would have been terminated in any event later that day by giving him his notice.

If for some reason Mr Coggin had not immediately been given his notice, then his refusal to work in accordance with my request would inevitably have led to his redundancy within the next few days, ..."

As to that, the Industrial Tribunal made these findings:

"15. ... he [ Mr Galway-Cooper ] says that it is clear from Mr Adams' evidence that he would have dismissed the Applicant in any event very shortly after the actual dismissal on the grounds of his refusal to do what he was asked to do, whether that was to work normally or to do the extra overtime, and that the Respondent would have been entitled so to dismiss the Applicant on the basis at the least of the Applicant's unreasonable refusal to consent to a variation in the terms of his employment contract. ...

16. We reject this submission. The flaw in the argument in our view is the question of fact. It depends upon us finding that the Applicant would have been fairly dismissed within a certain period in any event. We find no such thing. The Respondent's evidence and indeed whole approach to this affair appears to us to be predicated on a misconception (which the Applicant's representative describes as an arrogant presumption), namely that the Respondent was entitled to oblige the Applicant to accept a fundamental change for the worse in his employment terms and, in default, shortly to dismiss the Applicant.

17. The Tribunal has made clear in its reasons for its decision on liability that it found the manner in which the Respondent sought to impose a unilateral change in terms effectively by way of ultimatum "agree or be sacked" wholly unreasonable. There is nothing in the further evidence we have heard today to persuade us that, had the Respondent dealt with the matter reasonably, then this would have resulted in a fair dismissal in the foreseeable future. The likelihood of that happening we judge to be negligible. In our view the probability is that, had the question of the night shift working been addressed in accordance with acceptable industrial or employment relations practice, then an accommodation would have been reached whereby the Applicant's continued employment with the Respondent was not in jeopardy to any measurable extent at all. ..."

Again, this ground of appeal is postulated on the basis that the Industrial Tribunal was somehow obliged to accept the statement of Mr Adams, to which I have referred, without any further critical assessment of the evidence before it. That is a false premise and on this aspect, again, no error of law is demonstrated to us as arguable in the way in which the Industrial Tribunal addressed the question.

The remedies hearing took place, as I have said, on 23rd October 1997 and the extended reasons were promulgated on 25th November 1997. On the question of future loss the Industrial Tribunal found that there would be an element of loss for a period of two years from the date of dismissal. That finding is not open to challenge. However, in calculating the actual future loss sustained, the Industrial Tribunal approached the matter by taking an average over the six months of remuneration the employee received in his new employment. The first two months of that new employment saw the employee as a trainee with a salary that appears to be diminished on that account and a low level of commission earning which may also be explained in the same way. It does seem to us to be arguable that the Industrial Tribunal erred in taking all those six months as the basis on which to find an average monthly remuneration in the new job.

Furthermore, Mr Galway-Cooper demonstrates to us that it is possible that in making its calculation of net earnings the Industrial Tribunal may have been wrong to take a postulated figure for deduction, rather than the actual net figures which were available to it. That is referred to in paragraph 10(2)(c) of the proposed amended Notice of Appeal and it seems to us that there is room for argument on that aspect.

Accordingly, we propose to give leave to amend the Notice of Appeal in the manner demonstrated in the draft amendment lodged with the Employment Appeal Tribunal. We propose to allow this appeal to go forward only on those matters in the amended Notice of Appeal to which I have referred. The appeal will be limited to those matters we having found no arguable appeal on the other substantial matters.