NWT FREIGHT FORWARDING LTD v MR G R OWEN [2001] UKEAT 643_01_0111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 643_01_0111Case No Appeal No. EAT/643/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NWT FREIGHT FORWARDING LTDAPPELLANTMR G R OWENRESPONDENT
Before
Mr Justice Wall Mrs J M Matthias Mr D NormanDate 1 November 2001
[1]APPEARANCES For the Appellant MR MARTIN BARKLEM (of Counsel) Instructed by: Messrs Russell & Creswick 2 Bells Square Off Trippet Lane Sheffield S9 1RT MR JUSTICE WALL This is the preliminary hearing of an appeal by NWT Freight Forwarding Ltd ("the Appellant") against the unanimous Decision of the Tribunal sitting at Sheffield on 3 January and 9 March 2000, which concluded that the Respondent employee, Mr Owen, was constructively dismissed.[2]The principal basis of the Appellant's challenge is that the Decision is perverse because the factual basis for the breach of the implied term in the Respondent's contract of employment, as found by the Tribunal, was not pleaded or advanced by the Respondent as part of his case. The Appellant argues that in the absence of the existence of such an implied term there was no basis upon which the Appellant could have been in fundamental breach of contract, so as to entitle the Respondent to argue that he was constructively dismissed.[3]In essence, the case turns on the events of 16 May 2000. The Respondent was a long distance lorry driver employed by the Appellants and he had earlier that day returned from a tour of duty in Spain. During the course of the afternoon (and as the Tribunal found, no later than two hours following his return) he was informed that he was required to attend for work on the following day at 6.30 am in respect of a delivery to Manchester, from which he would then have to go on to Rotherham, Leeds and Bradford, before returning or departing on the same day to France.[4]Before the Tribunal the Respondent stated that the instruction to this effect was resisted by him, and that his resistance was met with threat of disciplinary action. That was disputed by the Appellant, but the Tribunal found on those facts in the Respondent's favour. In a previous paragraph, the Tribunal had found that there was a practice, in the Appellant's business, of providing yard duties to long distance lorry drivers who had returned from extensive journeys, and it was said by the Tribunal that this was a practice which had been conceded by one of the Appellant's witnesses, Mr White, a practice he is said to have said was ordinarily followed. The Tribunal therefore found that in normal circumstances, the Respondent would have been allocated yard duties and given twenty four hours notice before being requested to return to long haul driving.[5]In response to this demand, the Respondent cleared his belongings from his vehicle, indicating in terms that he was not going to work and Mr White, on behalf of the Appellant, confirmed that he did not expect the Respondent to return. The finding by the Tribunal was that there had been a fundamental breach of an implied term in the Respondent's contract, namely that he should have had either twenty four hours before the next trip, or a day's yard duties.[6]The point taken by the Appellant in this case is that the implied term and its breach, as found by the Tribunal, was not something which appeared in the Respondent's witness statement, nor was it part of his case when Further and Better Particulars were sought. In that respect, on page 51 of our bundle, there is an answer from the Respondent, in relation to the circumstances in which he terminated his contract which is in these terms:
"The Respondent [Applicant] will say that the discussion started with the Applicant being required to attend the respondent's place of work next morning to deliver a load to Manchester for 8.00 am in the morning after the Respondent [Applicant] had immediately returned from an overseas trip. The Respondent [Applicant] maintained that this was an unreasonable request following his return from a 9 day trip abroad but would have been able to ensure that the delivery was there by a short time later. This was a preliminary to a further long trip calling at Manchester and Leeds and Bradford and then Rotherham before returning to reload and return to Portsmouth for a night crossing again. The Respondent [Applicant] maintained it was unreasonable and the Traffic Clerk kept repeating "that's it"
. It was apparent to the Respondent [Applicant] that his complaints had been ignored and that the Respondents [Appellants] were being unreasonable." And there were then other complaints which are not material for this purpose.[7]The Appellant argues before us today, relatively simply, that there was no evidence before the Tribunal from which it could properly infer that there was an implied term of the Respondent's contract of employment that he would be allocated yard duties, following an overseas journey, in accordance with some custom and practice within the workplace, and that in the absence of such an implied term, there could have been no act by the Appellant amounting to a fundamental breach of the Respondent's contract of employment on 16 May.[8]The Appellant goes on to argue that the Tribunal's finding to the contrary was inconsistent with the pleadings and the written evidence prepared prior to the hearing, and appears to have resulted from a mistake as to the evidence given, in part, by the Appellant's witnesses.[9]We have come to the conclusion that there is an arguable point here, and that it is certainly arguable that the Tribunal imported a term into the contract which had no evidential foundation. In those circumstances, we propose to allow the appeal to proceed to a full hearing. It is our view that the EAT will be materially assisted by the Chairman's notes and we propose briefly to discuss now with Counsel those aspects of the notes should be bespoken. Mr Barklem, what do you suggest by way of Chairman's notes? It is really in paragraph 12 of my Skeleton, sir -where I have said that the Chairman's Notes should be sought in respect of any passage of Mr White's evidence in which he deals with the custom and practice of providing yard duties and any part of the Applicant's evidence where he said that he had come to expect such duties after a lengthy trip. If one put that into the Order, then it would be for the Chairman to skim through these notes and only transcribe those which were relevant. Well, that sounds very sensible, if I may say so, I quite agree with you. What we will do, sir, is I will write personally to Mr Hughes, who I do not know, and I will invite him to transcribe his own notes of that and explain them.. We would be very grateful for that, so you would effectively like paragraph 12 incorporated into our Order …….Very well, that will be done. Thank you very much.