MR G T BRIERLEY v (1) DEVON COUNTY COUNCIL [1999] UKEAT 174_99_2909

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 174_99_2909Case No Appeal No. EAT/174/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G T BRIERLEYAPPELLANT(1) DEVON COUNTY COUNCILRESPONDENT
Before
His Honour Judge J HicksDate 29 September 1999
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON AND MR R CLAYTON (of Counsel) ELAAS JUDGE HICKS QC : Mr Brierley, the appellant, was employed as an Information Technology technician by the respondents, Devon County Council and the Governors of Bideford College, the respective roles of those two respondents not being of any materiality for present purposes, from 31st October 1994.[2]The appellant was employed part-time in that he was required to work for 1,400 hours per annum, 1,700 hours being the number which would correspond to a full-time appointment. The statement of conditions of his employment provided that:
"Your working times within these annual hours will be notified to you by your line manager. For school based staff, this may include work on non-pupil days. …"
[3]The appellant started at Grade 3, and indeed started with little relevant experience or training, but very rapidly learned the job and took on additional responsibilities and was regraded to Scale 5 on 1st September 1996.[4]There was a background of deteriorating relationships between Mr Brierley and Mr Newcombe, his line manager, which included two stages at which Mr Brierley threatened but withdrew his threat of resignation and one indeed in which he did purport to resign but both parties agreed subsequently that that should be taken not to have ended the contract of employment.[5]In January 1998 the question of how many hours Mr Brierley should work was raised, not for the first time, but on this occasion there was an agreement reached for a change. That was confirmed by a letter from the management to Mr Brierley of 21st January reading, so far as relevant:
"I am pleased to be able to confirm … that as from 22 April you will be working 1,230 hours per annum instead of 1,400 hours per annum … In the meantime, of course, you will be expected to work the hours as discussed at our meeting, this is, 1,400 per annum, with your working day being 9am until 5pm with a half hour dinner break. There may be occasions when you wish to modify the working day slightly, in which case you will need to clear this with Mr Newcombe."
The tribunal found as a fact that that set out the contractual position between that date and 22nd April. It was during that period that the events which precipitated Mr Brierley's dismissal occurred.[6]On 12th February 1998 there was a meeting, which was to have been one of a series of routine weekly meetings arranged at an earlier stage between Mr Brierley and Mr Newcombe, his line manager. Mr Newcombe's immediate superior, Mr Cole, who had initially attended those meetings, had stopped doing so as they were going so well, but on this occasion he attended. I say that because, although in their finding on this point at paragraph 14 the tribunal refer to a Mr Love, who was the College Principal, it is quite clear in the context that they must be referring to Mr Cole. During the course of that meeting reference was made to the fact that a maintenance contract in respect of the computer network file servers was about to expire and also that a Dr Oxborough, the Vice Principal, who among other responsibilities managed the College computer system, was about to leave, and Mr Brierley was asked whether he felt confident to take on the task of looking after the file servers himself. He responded that he was prepared to do that on a trial basis, but would then expect to see a regrading if he was successful. Mr Cole made it clear that the regrading was not a possibility because it was part of Mr Brierley's job to undertake such work. There was a dispute about that, which gave rise to a quite violent altercation, in the sense that, as the tribunal found, Mr Brierley shouted at Mr Cole and Mr Newcombe sufficiently loudly to be heard by persons outside the room.[7]Mr Cole therefore raised the matter with his superior, Mr Love, the College Principal. Mr Love met Mr Brierley on 23rd February 1998. There can be no dispute as to what happened at that meeting because Mr Brierley, without Mr Love's knowledge, tape-recorded the meeting and a transcript was before the tribunal. At that meeting Mr Brierley alleged that what he had been asked to undertake was the management of the computer network in the absence of Dr Oxborough as well as the physical maintenance of the file servers and reiterated his position that he regarded that as being outside his responsibilities and as justifying regrading. Mr Love made it clear that there was no question of his being required to take on the management of the network and that what Mr Love had been told was that Mr Brierley had objected to taking on maintenance of the file servers as part of his existing role. That meeting also deteriorated into a quite noisy altercation in which Mr Brierley lost his temper and shouted.[8]Mr Love, however, went on to raise a further complaint that had come to his attention, that Mr Brierley was not working the hours which he was obliged to work. Mr Brierley said that he was leaving at some time between 4 o'clock and 5 o'clock. Mr Love responded that that was not the hours that were in the contract and that was therefore a further matter of dispute.[9]Finally Mr Love said that the question of Mr Brierley's conduct during the meeting itself would be a matter that would have to be considered.[10]Mr Brierley was then invited to a disciplinary hearing. It is sufficient to say that such a hearing eventually took place before a subcommittee of the Governors on 13th March 1998, at which the disciplinary subcommittee concluded that Mr Brierley had behaved improperly in the course of the meeting of 12th February, that he had not worked his contractual hours, that he had refused to do work which he could be required to do under the terms of his contract, and that he had refused to discuss the matter with Mr Love. There were therefore four matters which the subcommittee took into account, and they concluded that that amounted to gross misconduct and that the proper course was summary dismissal. That conclusion was confirmed to Mr Brierley by letter of the same date.[11]There was in the respondents' terms of contract or code a right of appeal of which Mr Brierley was informed and which he exercised. There was an appeal hearing on 24th and 27th April at which there was a full rehearing and the upshot was that the dismissal was upheld.[12]Mr Brierley brought complaints of unfair dismissal and wrongful dismissal. The Employment Tribunal rejected both. They found as to unfair dismissal that the reason for dismissal was conduct and that the employers acted reasonably in treating that as a ground for dismissal and did so after a proper investigation.[13]The tribunal dismissed the claim for wrongful dismissal, having found as facts on a balance of probabilities that Mr Brierley was in breach of contract in refusing to perform the maintenance work on the file servers and in his abusive conduct during interview and refusal to discuss matters of legitimate concern with the Principal. They also found as a fact that he was not working the hours which he was required to work. Taking that all into account, the tribunal concluded that Mr Brierley's conduct amounted a repudiatory breach of his contract of employment which the respondents were entitled to accept by termination.[14]The Notice of Appeal raises a number of points but, with the assistance of Mr Clayton, Mr Brierley has advanced two matters before us. We can therefore confine attention to those. We have already granted leave for the amendment of the Notice of Appeal and those grounds arise under and are within that amended Notice.[15]The first complaint made of the decision of the Employment Tribunal is that the tribunal, as Mr Clayton put it, misunderstood the contractual terms as to hours. The gravaman of this point, as we understand it, is that Mr Brierley had not only himself given evidence but had elicited acceptance in cross-examination from the employer's witness, that in fact he worked 39 weeks a year rather than the 38 which would, working from 9 to 5, amount to the total of 1,400 hours.[16]We cannot see that the tribunal fell into any error of law in this respect. The fact is that the crucial question was what Mr Brierley was doing between January and April of 1997. The position during that period was governed by the letter of 21st January 1998, which I have quoted and which reflected what, as the tribunal unimpeachably found, was an agreement reached between Mr Brierley and the management. During that period, although there is reference to the annual rate of 1,400 hours per annum, the question was not how many weeks that corresponded to or anything else of that kind, because the full year was never going to be worked at that rate. The crucial requirement during that period, which was recorded in the letter and was part of what he was found by the tribunal to have agreed, was that his working day would be 9 a.m. until 5 p.m. On his own admission he was going home not at 5 p.m. but between 4 o'clock and 5 o'clock. Whether the tribunal's finding to that effect was right or wrong is plainly a straightforward question of fact on the evidence and, in our view, unimpeachable for that reason in this tribunal, where we are concerned only with errors of law.[17]Mr Brierley, although this point was mainly argued on his behalf by Mr Clayton, did at the end refer us to the case of British Telecommunications PLC v Sheridan [1990] IRLR 27 , where in paragraph 31 Ralph Gibson LJ said:
"Misunderstanding or misapplying the facts may, in my view, amount to an error of law where the tribunal has got a relevant, undisputed or indisputable fact wrong and has then proceeded to consider the evidence and reach further conclusions of fact based upon that demonstrable initial error."
Mr Brierley says that there was a relevant undisputed or indisputable fact, namely the 39 weeks as opposed to 38 weeks and that the tribunal reached further conclusions based on that error.[18]It must first of all be observed that in Sheridan the Court of Appeal was allowing an appeal from this Appeal Tribunal explicitly on the basis that this tribunal had upset the Industrial Tribunal for what amounted to no more than errors of fact. So what is said by Ralph Gibson LJ in that paragraph cannot possibly be part of the ratio decidendi , the governing principle, of the Court of Appeal's decision. The Court of Appeal's decision was of course precisely one concerned with the error of treating matters of fact as if they were matters of law. The second thing to be said about it is that, in our view, even if one took that to be an authoritative statement of the law, it does not vitiate the decision of the Employment Tribunal in this case, because for the reasons I have given they were not concerned with erecting on any view of the total annual effect of the contractual provisions, a further finding of fact as to the position during the relevant period. The position during the relevant period was authoritatively and bindingly agreed between the parties and embodied in the letter of 21st January and Mr Brierley, as the tribunal unimpeachably found, failed to comply with it.[19]The second point raised in argument (and this point was largely developed by Mr Brierley himself) was that the tribunal erred in law in its finding that the refusal of Mr Brierley to do what was asked in relation to the file servers was a breach of contract because the maintenance of the file servers was, as the tribunal found, part of his contractual duties. Mr Brierley maintains and of course, as is quite clear from the tribunal's full summary of the history, had maintained throughout, in particular at the meetings of 12th and 23rd February, that what he was really being asked to do was to take over Dr Oxborough's management functions of responsibility for the whole computer network. That issue was therefore fairly and squarely before the tribunal and their finding, which I have already summarised, is expressed in paragraph 32 of their reasons as follows:
"32 On a balance of probabilities, we were satisfied that the applicant had refused to perform the maintenance work on the file servers which was part of his contractual duties. We rejected the suggestion that there was genuine confusion over the question of whether he was expected to take over Dr Oxborough's work on managing the network. …"
The tribunal then give their reasons for that conclusion, which is based on their assessment of the oral witnesses and the documents, matters which, in terms of findings of fact, were of course entirely for them.[20]So, on the face of it, there is again a straightforward question of fact into which we cannot enquire, our jurisdiction being limited to redressing errors of law. The way in which Mr Brierley puts it as involving, he says, errors of law, is that the tribunal misdirected itself by not asking, as he puts it, certain necessary questions. The first is: in the circumstances, who was going to do the network administration and who was going to take over Dr Oxborough's responsibility for managing the computer network? The second question is: to what extent was Mr Brierley himself aware of the employer's intentions in that regard? The third is: was proper attention given to the fact that Mr Brierley was asked to take over the file servers after Dr Oxborough's departure? The fourth is: that there was no evidence for the finding that Mr Brierley was in breach.[21]Taking first question 4. It is certainly one form of error in law to reach a finding for which there is literally no evidence. But, in truth, it cannot possibly be said that there was no evidence for the finding reached by the tribunal. The highest it could be put is that the evidence did not justify their finding. But that is precisely the area of fact with which this tribunal cannot interfere. So that way of putting this matter does not involve, in our judgment, any error of law.[22]Going back to question 3: was proper attention given to the fact that Mr Brierley was asked to take over the file servers after Dr Oxborough's departure? That on its face cannot be a question of law, because, "proper attention" is concerned with the relative weight given by the tribunal to different aspects of the evidence and argument and that is entirely a matter for them. That the tribunal did have in mind the coincidence of time between Dr Oxborough's departure and Mr Brierley's being asked to take over the maintenance of the file servers is quite apparent on the face of their reasons. What weight they gave to that was entirely a matter for them and not for us to interfere with or pass judgment upon. The fact is, as the tribunal found, that two events occurred. One was the termination of the maintenance contract for the file servers, and something had to be done about replacing that. The other was Dr Oxborough's departure. Bearing that background, as well as all the other material considerations in mind, the tribunal reached the conclusion that what Mr Brierley was being asked to do was not to take over Dr Oxborough's responsibilities but simply to take over the maintenance of the file servers, and that was a question of fact for them.[23]The first two questions that Mr Brierley says the tribunal should have asked themselves, and were wrong in law in not asking themselves, really go together. The first is: in the circumstances, who was going to do the network administration? Of course that was a question that might have been asked, indeed for all we know it did pass through the tribunal's mind. They certainly are not obliged to spell it out in their reasons on pain of being held by us to be in error of law if they fail to do so and that cannot be a ground for setting aside their decision. The second is: to what extent was Mr Brierley aware of this? That seems to us to be purely subsidiary and not to raise any separate point at all.[24]That deals with all the matters advanced by way of argument in support of this appeal. For the reasons that I have given we are satisfied that none of them is arguable or justifies a full hearing and we therefore dismiss the appeal.