MR R HUNTER v PRESTON COLLEGE FE CORPORATION [2001] UKEAT 89_00_0304

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 89_00_0304Case No Appeal No. EAT/89/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R HUNTERAPPELLANTPRESTON COLLEGE FE CORPORATIONRESPONDENT
Before
Mr Recorder LangstaffSir Gavin LairdDate 3 April 2001
[1]APPEARANCES For the Appellant MR N BOOTH (of Counsel) Instructed by: Mr D Taylor Vauxhall Community Law & Information Centre VNC Millennium Resource Centre Blenheim Street Liverpool L5 8UX For the Respondent MR P GILROY (of Counsel) Instructed by: Dibb Lupton Alsop Solicitors 101 Barbirolli Square Manchester M2 3DL MR RECORDER LANGSTAFF QC This appeal, from the Employment Tribunal sitting at Liverpool, with Reasons promulgated on 19 November 1999, raises a short issue. By the Decision the Tribunal dismissed the employee's claim that he had been unfairly dismissed.[2]He had been employed as a lecturer in the Trade Union and Labour Studies Department of the Respondent College. He was dismissed, ostensibly, for a refusal to work to a new timetable which was given to him in the January of 1999.[3]The conclusion to which the Employment Tribunal came, in paragraph 23 of their Reasons was:
"We are satisfied that[the Appellant] was evincing a settled intention to refuse an instruction that on the face of it was perfectly lawful and reasonable. In those circumstances we believe the College was entitled reasonably to conclude that this amounted to gross misconduct, meriting summary dismissal."
The question thus arises whether or not the employer's request or order to the employee to work to the new timetable was, or was not, lawful and reasonable. No issue has been joined, at any stage, as to it being lawful. The sole question is whether or not that order was reasonable.[4]In relation to that, the facts which the Employment Tribunal found were that the employee had been closely involved with the preparation of particular courses called "core provision" or "core programme" and was very keen to be involved in the teaching of those courses.[5]On 5 January 1999, his manager sent him a memo telling him that he would be required to work to a timetable which involved no core programme work. Instead, his work was to consist entirely of seventeen computer sessions a week; it was that to which he objected. He was, in March, brought before a disciplinary panel. That panel concluded that he had committed gross misconduct, by refusing to do the job that he was employed to do, and that he ought to be dismissed. That recommendation was forwarded to the Principal, who duly adopted it. The Employment Tribunal, in analysing the submissions of the parties, recorded at paragraph 13 that the Appellant claimed before them that:
"there were 3 reasons why he should not be obliged to take the new timetable"
The first reason was not pursued, and it is unnecessary, we think, to say any more about that.[6]The second reason was that he claimed that he would have to be substantially educated on computer matters in order to be able to fulfil that particular element of the work which he was now being asked to do.[7]The third was that he should be allowed to teach the core programme, and that someone else could take over part of his computer sessions. He suggested, therefore, that the work of other colleagues should be re-arranged, in order that that might be done.[8]This third ground plainly involved the Employment Tribunal in examining the extent to which it was or was not reasonable to ask someone who had been closely involved in the core provision, the core programme, and plainly both enjoyed doing it and derived status from it, to abandon that work and do work which he was less well fitted to do, and less inclined to do.[9]The Tribunal said in relation to that, at paragraph 18 of their Decision that the proposed arrangement on behalf of the Appellant:
"was clearly going to require a substantial revision of the College's arrangements. By splitting the work as the College had done, the provision of sessions at Warrington could be carried out by those persons actually working there. To accept Mr Hunter's suggestions would have brought about an upheaval in the arrangements of other lecturers that Mr Clegg [the College Principal] was certainly reasonably entitled to regard as unnecessary, unsatisfactory and impractical."
They concluded at this stage of their reasoning that the Principal had, on appeal, reasonably reached the view that the Appellant had no reasonable excuse for his failure to adhere to the new timetable.[10]The Tribunal continued in words which have taken on an importance in the argument before us, in these terms:
"Before us, Mr Hunter also raised a separate issue. He contended that even if, on the face of it, the request for him to undertake this work was reasonable, that was not necessarily the case. He claimed that there had been a deliberate decision by his Managers to bring about a situation that they knew full well would be wholly unacceptable to him."
[11]They went on to comment, in a paragraph which is at the heart of the Appellant's appeal. "The assertion amounted to no less than an allegation of conspiracy on the part of Mr Hunter's Managers. Quite apart from the difficulty there might have been in establishing such a conspiracy, we are satisfied that it was never raised as anything like a serious prospect by Mr Hunter before his dismissal. In other words, there was no reason for the College to believe that that was a ground upon which he was objecting to the new time-table and accordingly the College cannot be criticised for failing to take it into account." In their reasoning, the Employment Tribunal were dealing with this matter as a separate issue. It was in response to an argument, which they say was addressed to them, that the requirement to work the new timetable was not only unreasonable in itself, but was unreasonable because the managers had deliberately chosen to do it, because they knew that it would be unacceptable to him and that, in effect, they were trying to force him out.[12]This part of the reasoning of the Employment Tribunal therefore proceeds upon the footing that the decision to ask the Appellant to work to the new timetable was one which it was, in all the circumstances, reasonable. The reasoning within paragraph 22, which I have just quoted, is criticised by Mr Booth, on behalf of the Appellant. It gives rise to what he described as the "short point" in the appeal. The Tribunal could not, he says possibly have been satisfied that the allegation of conspiracy was never raised as a serious prospect by Mr Hunter before his dismissal. They could not have concluded that there was no reason for the College to believe that he was objecting to the new timetable, on that ground; that was at the heart of his objections to the new timetable.[13]In support of his contention that here the Tribunal had simply misunderstood the facts before them, and mistated the true position, he drew our attention to documents which we have in our bundle, at page 24, in which a very considerable number of staff were registering their concern and dismay at what they termed "the victimisation" of the Appellant. They were asking that all disciplinary actions against him be lifted, and that senior management "……enter into an open and frank dialogue about the current problems within the department"[14]At page 25, the Appellant himself made notes for the disciplinary hearing that was to be conducted in respect of the timetable issue. The second point that he made in those notes, which we were told (and it was not disputed) were handed to the panel, said that he objected to Terry Molloy taking this hearing because he was the person directly responsible for:
"……engineering the situation which led to my being suspended"
At page 26, is a summary which he prepared for the disciplinary hearing on 17 March, which, again, was handed to the panel. He referred in it to the:
"deliberate actions of Terry Molloy" having given rise to his suspension. His suspension was, of course, causally related to his refusal to work the new timetable. He went on to say that: "
With the help of members of the senior management team within the department he [Terry Molloy] had created that situation to isolate me away from my usual employment." That, presumably, is a reference to his being asked to do computer work, rather than core studies. "Events had been staged by management" he said, which were:
"deliberately provocative"
[15]One might have thought that in itself that was enough to show that the Appellant had made a significant issue of an allegation of conspiracy against him, before the employer's own internal disciplinary hearing, but there is more. At page 29, in his summing up before the disciplinary panel, he referred to his immediate line manager, who was, of course, responsible for providing him with the new timetable, and he said that she had been installed in Warrington to:
"do a job of work - on me."
He alleged that she had been told to:
" make out the time-table in a blatant manoeuvre, from management, to force me into an untenable position. and linked this with what he termed an "illegal demotion"
That was a reference to an earlier action, which had caused him to be demoted as a lecturer within the department. It should be noted that demotion was later reversed, on internal appeal., but not before the timetable issue raised its head.[16]Moreover, there was the sworn evidence, we are told by Mr Booth, on behalf of the Appellant, uncontradicted by his employers, that he had raised this very issue before the disciplinary hearing. We have, in reply, been shown by Mr Booth a copy of the Appellant's witness statement before the Employment Tribunal. That too, makes it plain that very much to the core of his case was his feeling that he had been victimised by his employers, and in particular, though not necessarily exclusively, by the management within the Trade Union and Labour Studies Department. In the face of that, there appears to be no evidential basis for coming to the conclusion which the Employment Tribunal recited at paragraph 22.[17]In response, Mr Gilroy, for the College, argued that the second and third sentences of paragraph 22, taken together, did make it plain that the issue had been raised, but the emphasis was very different. The Tribunal were not, he said, saying that nothing had been said at all, they were saying, in effect, the emphasis was different. It would be to place too heavy a burden upon the word "no" in the phrase: "there was no reason for the College to believe that that was a ground upon which he was objecting" for that to suggest that the Employment Tribunal were here taking no notice of material which was plainly before them. He invited us, therefore, to say that this was not a finding which the Tribunal was disentitled to make.[18]We reject Mr Gilroy's submission on this part of his case. Although the word "no" may be a small one, its force here is clear. The Tribunal could not conclude that there was no reason for the College to believe that the Appellant did not object to the new timetable, because he thought it was a put up job. That is exactly what, in the various documents to which we have referred, and the evidence about which we have been told, he was saying. It was, therefore, an impermissible finding.[19]Of greater difficulty, but we think at the heart of this case, is the effect of coming to that conclusion. Mr Booth argues, for the Appellant, that if a direction, which was otherwise reasonable, is given to an employee with a motive which is dishonourable, in the sense that it is known it will impose an onerous burden upon the employee, that it might, for that reason, be unreasonable. The motive may convert what is otherwise a reasonable instruction, into something which is unreasonable. This is a matter which the Employment Tribunal should have taken into account in evaluating whether or not the employer was entitled to take the view, as it appears to have done, that the refusal by the Appellant to work to his timetable was unlawful and unreasonable. He illustrated this by reference to a case in which a woman with child care commitments was asked to work to a shift pattern which might impose particular burdens upon her, as a single mother, compared to others, for whom the same instruction might be entirely reasonable.[20]We have also been urged, by Mr Booth, that before the Employment Tribunal, the Appellant did not take the course which the Tribunal's Decision might suggest. He has said that, far from arguing first that the requirement to work to the timetable was unreasonable, on various objective and practical grounds, and upon grounds which related to his own position as a lecturer having taught the core studies for some years, he then went on to deal separately with the question of motive.[21]Mr Booth says it was all part of a piece, and the Tribunal did not faithfully reflect the pattern of the argument in the way in which they have set out the matter in their Extended Reasons.[22]We, however, have to ask ourselves the question whether the Employment Tribunal was addressing the issue posed by section 98 of the Employment Rights Act. They had found, quite rightly, that the employer had satisfied the obligation resting upon him to show what was the reason for the dismissal.[23]They then had to determine whether, in all the circumstances of the case, in accordance with the test set out in section 98(4), that was a reaction which was within the bound of reasonable responses for this employer to take. That involved, necessarily in this case, asking whether or not there had been a reasonable request made to the employee, which he had refused to accept. They found that there had. Can we say that their decision was in error?[24]The first question we have to ask is whether it appears, from their Decision, that there was any particular matter which they should have taken into account in assessing the reasonableness of that request, which they failed to take into account. Here we have in mind what the Chairman said when an application for a review was made to him, and refused by him, in Reasons which he promulgated in January 2000, at paragraph 8. The point had been made to him that the Tribunal had failed to consider the implications of the employee's earlier demotion, and Mr Reed went on to say:
"He should not assume, however, that because no reference is made to a particular point in the decision case that the Tribunal gave it no consideration. We give full consideration to all the matters properly canvassed before us and again I reject that ground of criticism."
[25]The Decision of the Employment Tribunal is a terse one, but it deals with the involvement of the Appellant in the core provision. It deals with his suggestion that it was unreasonable that he should not be allowed to teach the core programme, and his suggestion that someone else could take over the computer sessions, or part of them. It deals with his complaint that he would have to be educated on computer matters. It concludes, having taken into account that material, and other evidence from Mr Clegg, that the request was a reasonable one.[26]They were therefore taking into account not only the nature of the timetabling request, but also any personal matters which were individual to the Appellant. The assessment was for them; it is not for us, on appeal, to interfere, unless it seems to us that that assessment was reached by ignoring some factor which they should have taken into account.[27]We cannot see that on the way which the Employment Tribunal have approached it, that they were disentitled to reach the conclusion that there was a reasonable request to the employee. Although they did not, as we have indicated, properly deal with the evidence, or understand the evidence that was put before them, as to the significance of the allegations of conspiracy against him, if they were nonetheless right in their conclusion that the request made to him was reasonable, then the fact that Mr Hunter felt he was being harassed and his position being undermined, which they had recorded earlier in their Decision, would be beside the point. The case was one in which the employer was entitled to see an employee who was refusing a lawful and reasonable request.[28]It may well have occurred to the Tribunal, as it occurred to us in the course of argument, that an employee in circumstances, where he considers himself to be the victim of a campaign against him, by those senior to him in management, has an alternative in such a case, and that is that he may choose to work on, but protest and raise a grievance. It appears that although that action may have been open to the Appellant here, he did not take it.[29]Although that is not referred to specifically by the Employment Tribunal, we can see that the reasoning which they have is, in itself, sufficient as they express it, to come to the conclusion that they should dismiss the Appellant's complaint before them that he had been unlawfully dismissed. They dealt with it as a case in which he had refused a lawful order, and they were, in the way in which they reacted to the submissions made, and the way in which they have recorded them made, before them, entitled to do so. It follows that we feel that we have no option but to dismiss this appeal. [Counsel] Sir, may I ask permission to appeal to the Court of Appeal on that last point, the question, in effect, as I understand the Tribunal's judgment, the question of whether or not the employer's motive had been as the Appellant argued, was one that this Tribunal has found was not entitled not to take into account as a relevant consideration, but that is a matter that you yourself categorised, and the Tribunal's judgment is a difficult issue, Sir, and it is one which I would seek to have leave to take further. Well, it is not quite the way we put it, Mr Booth. We do not think we said that it was not something which they could take into account, but in the way in which they analysed the matter, we could see that the Decision was not one which they were disentitled to come to; there may be a difference. But is there anything further you want to say, in support of your application? Sir, the basis of my application is reasoned as this … This Tribunal's Decision makes it plain that the reason it rejected the significance of the argument on the employer's motive was because it had not been raised below and there is no indication, we would submit, that the Tribunal thought it in any sense, otherwise not a relevant consideration, so we would our submission would be that the basis of your decision must be that that is a matter which does not go to reasonableness in instructions [?] and so I know that that very much is the matter on which the discussions between us have proceeded today, in my submission, there is a strongly arguable case that the question of the employer's motive does go to the reasonableness of instructions, and, although that is a point which has not found favour with. this Tribunal, it is one which I say is not a point on which there is clear authority, it is a clearly arguable point, I say, and one and which I should have leave to take to another place. No, if you want permission to appeal, you have to go to the Court of Appeal. …….