Baker v Securicor Omega Express Ltd [1999] UKEAT 91_98_0101

EAT

Baker v Securicor Omega Express Ltd

[1999] UKEAT 91_98_0101 · 1999-01-01

JUDGE PETER CLARK:

We have before us an appeal by the Applicant before the London (South) Employment Tribunal, Mr Baker, and a cross-appeal by the Respondents, Securicor Omega Express Ltd, against that Tribunal's decision promulgated with Extended Reasons on 10 November 1997.

The Applicant's complaint was one of unfair constructive dismissal. The case was heard on 20 August 1997. During the course of that hearing the Tribunal indicated that it found that the Applicant had been constructively dismissed. It is against that finding that the Respondent cross-appeals. The Tribunal then adjourned the hearing to consider the issue of unfair dismissal in chambers. That meeting took place in the absence of the parties, on 11 September 1997. In their written decision of 10 November the Tribunal found that the dismissal was fair.

The Applicant contends that at the hearing on 20 August he was told that the Tribunal had found in his favour. He took that to mean, he tells us, that the Tribunal had found the dismissal unfair. Having read the Chairman's notes supported by the recollection of Mr Hogarth who appeared for the Respondent below, we are quite satisfied that the Applicant has misunderstood the position. What happened at the hearing on 20 August was that the Tribunal announced orally its finding that the Applicant had been constructively dismissed. It then went on to hear evidence and argument on the question of fairness and then adjourned the matter so that the members of the Tribunal could consider the issue in chambers. In those circumstances, we find that no procedural irregularity occurred. The Applicant also appeals against the Tribunal's substantive finding of fair dismissal.

The Applicant was employed by the Respondent as a day sorter driver and motorcycle courier from 7 October 1985 until his dismissal on 16 May 1997. Under the terms of his contract of employment he was entitled to be paid weekly. Originally payment was in cash; later into his bank account.

In May 1995, the Respondent entered into negotiations with the recognised unions with a view to putting all its 8,000 plus employees onto monthly pay. There was considerable opposition to the proposal amongst the workforce.

In February 1997, the Respondent decided to impose the change with effect from 1 May 1997. A loan scheme was made available, including interest free loans of up to £600 repayable over 12 months to assist employees in the transition to monthly pay.

The Applicant personally opposed the change throughout. He was in debt and had a number of arrangements to repay his debts on a weekly basis. Although many other employees, particularly at his depot shared his opposition, when it came to the crunch he alone resigned by giving one weeks notice on 7 May 1997.

Constructive Dismissal

It was common ground that the Respondent's imposition of monthly pay constituted a breach of the contract of employment. The question for the Employment Tribunal was whether that was a significant breach going to the root of the contract; a fundamental breach. The Tribunal found that it was. The Applicant had been constructively dismissed.

Mr Hogarth has only faintly argued that that finding can be attacked on appeal. We bear in mind the guidance in Pederson V Camden London Borough Council

[1981] ICR 674

. The question as to whether a fundamental breach of contract is made out is essentially one of fact for the Employment Tribunal. We can see no grounds for interfering with this Tribunal's finding of constructive dismissal on the facts of this case and accordingly we dismiss the cross-appeal.

Unfair Dismissal

It is well-established that a constructive dismissal may nevertheless be fair if the employer establishes a potentially fair reason for dismissal and the Tribunal finds that to be a sufficient reason for dismissal under s.98(4) of Employment Rights Act 1996 . See, for example, Genower v Ealing Area Health Authority

[1980] IRLR 297

, Berriman v Delabole Slate Ltd

[1985] ICR 546

Here, the Tribunal found that the Respondent had established some other substantial reason for dismissal, namely a sound business reason for changing all staff onto monthly pay. That finding is not challenged by Mr Baker in this appeal.

The Tribunal went on to consider s.98(4). In finding that the Respondent had acted reasonably and that the dismissal was fair, they said this at paragraph 26 of their reasons:

"26. The Tribunal then had to consider section 98(4) of the Act. Was the dismissal fair or unfair? Bearing in mind the considerations referred to in section 98(4), the Tribunal decides that the dismissal was fair. Having regard to the reason for the change to monthly pay, we find that the Respondent acted reasonably. Having regard to the reason for the change to monthly pay, we find that the Respondent acted reasonably. It made good business sense to get the rest of the workforce on a monthly bank-based payroll, given the size of the Respondent's undertaking. Although the union did not formally agree to the change, it nevertheless negotiated with the Respondent and communicated with the employees. The coming change was no surprise to the Applicant and the other employees: the Respondent communicated with them as well as with the union. Written information was supplied to the employees by the Respondent. Offers of interest-free loans were made to all affected employees to tide them over the transition period, and details given out. These, together with confirmation of the Respondent's position, were discussed specially with the Applicant by management. In the event, the Applicant considered that the union had not done enough to help him and generally and, despite opposition to the change by a good number of employees, the Applicant was the only one who refused the change and resigned."

Mr Baker appears in person before us today, as he did below. It seems that having been granted legal aid in the appeal, and following a conference with Counsel, Ms Adrienne Morgan, legal aid was not extended for this hearing. However, we have taken into account the contents of the skeleton argument prepared by Ms Morgan as well as Mr Baker's oral submissions. He did not seek an adjournment of this appeal hearing. We have also heard Mr Hogarth in reply.

Looking at the Tribunal's reasoning set out in paragraph 26 of their reasons we are satisfied that they took into account all relevant factors in reaching their conclusion on the s.98(4) question. They considered the degree of consultation between the Respondent and the trade unions and with the Applicant individually; they balanced the Respondent's need for uniformity of pay systems with the disadvantage to the Applicant of monthly pay. They took into account the transitional arrangements offered, including an interest free loan. Contrary to the submission contained in Ms Morgan's skeleton argument we are satisfied that a factor which the Tribunal was entitled to take into account was the fact that all but the Applicant, that is over 8,000 employees, finally accepted the change, however reluctantly in some cases. We also think that the Tribunal did not overlook the fact that the change involved no reduction in earnings, merely an alteration to the method of payment.

In all the circumstances we are unable to discern any error of law which would entitle us to interfere with the Tribunal's conclusion. The appeal is also dismissed and the Tribunal's decision stands.

Before leaving this case we should add this. Mr Baker submits in effect that if the Tribunal decision stands, then a contract of employment is not worth the paper it is written on. The short answer to that is that whilst a breach of contract may in part provide the answer to the question was the employee constructively dismissed, it does not of itself answer the question, was the dismissal fair or unfair under s.98 of the Act?