MRS S R SMITH v SODEXHO LTD [2001] UKEAT 968_01_0709

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 968_01_0709

Case No Appeal No. EAT/968/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS S R SMITHAPPELLANT

SODEXHO LTDRESPONDENT

Before

Mr Recorder Underhill

Date 7 September 2001

[1]APPEARANCES For the Appellant MR S LAMBETH (Solicitor) Messrs Squire & Co Solicitors 49-50 St John's Square London EC1V 4RF MR RECORDER UNDERHILL QC: This is the preliminary hearing of an appeal against the decision of an Employment Tribunal at London South dismissing the Appellant's claim for unfair dismissal.

[2]The Appellant was employed for many years as a school catering supervisor at Castlecombe Primary School in the London Borough of Bromley. In August 2000 the Respondents replaced the previous catering contractors at the school and the Appellant passed into their employment by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 1981. Under their contract with the Borough the Respondents had accepted responsibility for "dining room management", which involved the duty of assembling and disassembling the dining room furniture for school meals. This had not previously been the responsibility of the catering staff at the school. The Respondents made it clear that they regarded it as part of the duties which they wished the Appellant and her assistants to undertake. They consulted fully with her and offered her any necessary training, but the Appellant refused and was eventually dismissed as a result of that refusal.

[3]The Appellant brought proceedings in the Employment Tribunal claiming unfair dismissal. By Extended Reasons sent to the parties on 28 June 2001 the Tribunal dismissed her claim. It found that her refusal to carry out the work constituted "some other substantial reason justifying her dismissal" within the meaning of section 98(1)(b) of the Employment Rights Act 1996 and that the Respondents had acted reasonably in dismissing her for that reason. Although the duties were undoubtedly new, the Employment Tribunal accepted that they were not onerous and that their introduction had caused no difficulty in any of the other schools in Bromley. It held that it was a "business necessity" for the Respondents to ask the Appellant and her staff to carry out this work because it was required by the contract with the Borough and it was unrealistic to employ anyone else especially to carry out this particular task. It was impressed by the efforts which the Respondents had made to persuade and assist the Appellant to undertake these duties. It did not accept that the Appellant had at the time raised with the Respondents any difficulty about her health.

[4]The Appellant's Notice of Appeal raises four grounds of appeal. These have been somewhat modified in the skeleton argument helpfully presented to us by Mr Lambeth, appearing on a pro bono basis for the Appellant. We consider the grounds of appeal as they are now expressed in his skeleton argument.

[5]First, Mr Lambeth submits that the Tribunal's decision was perverse in that there was no evidence that the dismissal was for a business necessity. We would observe in passing that the phrase "business necessity" somewhat overstates the test which according to the authorities the employer is obliged to meet in cases of this kind; but that is in fact immaterial to the way which the Appellant puts her case under this head. What Mr Lambeth says is that the evidence clearly showed that at the time of the dismissal the Respondents' reason for dismissing the Appellant was her "failure to carry out a reasonable request". The Appellant says that that must be characterised as "conduct" and that accordingly it was not open to the Employment Tribunal to find that the reason for the dismissal was "some other substantial reason". In our view this ground of appeal is wholly misconceived. No doubt the evidence does show that the Respondents described their reason for the dismissal as "failure to carry out a reasonable request", as indeed it was; but we do not accept that that reason has to be characterised as misconduct. No doubt usually the refusal on the part of an employee to carry out a reasonable request would constitute misconduct because it would constitute a deliberate breach of a contractual obligation, but in some cases the request might be reasonable but not within the scope of the contract. Refusal of a reasonable request to do something outside the scope of a contract is a classic instance of "some other substantial reason" within the meaning of the subsection. It was plainly and reasonably the view of the Employment Tribunal that that was the correct analysis here.

[6]There is some reason to think that the Respondents initially thought in terms of misconduct, which may be why the meeting at which the Appellant was given a final chance to agree to the new duties, and dismissed when she refused, was set up as a disciplinary meeting. But they made the position perfectly plain in the very words with which the Appellant was dismissed, of which a record appears in the Respondents' notes (on which Mr Lambeth has himself sought to rely). The manager responsible, Mr Garnham-Edge, said:

"I have no alternative but to dismiss you with twelve weeks' pay in lieu of notice for refusal to carry out a reasonable request, that being the dining room management duties. [ The Appellant asked ] Are you dismissing me for gross misconduct? [ Mr Garnham-Edge replied ] No, we are dismissing you for some other substantial reason being that you refused a reasonable request."

The position could not be plainer.

[7]Thus the dichotomy which the Appellant seeks to set up between refusal to carry out a reasonable request on the one hand and some other substantial reason on the other is a false one.

[8]Another point appears to be made under this general head, namely that because the evidence shows that the dismissal was for refusal to carry out a reasonable request, it cannot have been because of a business necessity. We do not understand this. The business necessity was the reason for the request. Mr Lambeth submitted to us that there was no evidence of business necessity; but there was plainly evidence before the Employment Tribunal, firstly, that the carrying out of the dining room management duties was part of the Respondents' contractual obligations to the Council and, secondly, that there was no reasonable alternative way of having those duties performed.

[9]Mr Lambeth's second ground of appeal was that "the Tribunal failed to give any reasons for its finding that dining room management worked successfully in every other school". Mr Lambeth submits that that was a central part of the Employment Tribunal's reasons. We are not sure that that is strictly correct. It was certainly a matter to which the Tribunal referred but it seems to us, on a fair reading of the Extended Reasons, that it would have reached the same result whether that evidence had been before it or not. In any event, however, the criticism appears to us to be ill-founded. The Tribunal's reason for its finding that dining room management worked successfully elsewhere was plainly that it had had evidence to that effect, which it accepted. No other "reason" is necessary. Of course, if that evidence were challenged, and there had been a significant dispute as to its truth, it might well have been necessary for the Tribunal to give reasons for accepting one party's evidence as against the other; but it is not suggested that that was the case here. The point is also made in the skeleton argument that there was no documentary evidence to this effect; but of course oral evidence is perfectly sufficient and it is not alleged that there was no such evidence before the Employment Tribunal.

[10]The third and final ground advanced by Mr Lambeth is that "the Tribunal did not address itself to alternative remedies". What he means by this is that the Respondents ought to have considered, as an alternative, dismissing the Appellant for redundancy. We are bound to say that we think it very doubtful whether a dismissal on one ground can be said to be unfair merely because it could have been expressed as a dismissal on another ground. But, even if that were arguable, there is no basis on the undisputed facts on which the Appellant could have been dismissed for redundancy: she was plainly not redundant. If Mr Lambeth means that she should have been given a redundancy payment, any such payment would have been ex gratia, and failure to make an ex gratia payment cannot in our view be a ground on which an otherwise fair dismissal could be held to be unfair.

[11]It follows that we see no arguable ground for challenging the careful decision of the Employment Tribunal in this case and this appeal must be dismissed. We have of course some sympathy for the Appellant, although it was her own decision to take the unyielding stance that she did. It is never a nice thing, particularly (if we may say so) at her age, to have to undertake new duties; but at the end of the day the law is that it is not unfair for an employer to dismiss an employee who will not accept changes to duties, provided that the changed duties are reasonable, that the changes meet a reasonable business need and that the employer acts reasonably in the way he handles their introduction. Whether these changes were reasonable and whether the employers acted reasonably is a matter for assessment by the Employment Tribunal. The Tribunal here carried out that assessment carefully and fairly and made no error of law.