MR K BUXTON v INITIAL CONTRACT SERVICES LIMITED [2002] UKEAT 0967_01_0705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0967_01_0705Case No Appeal No. EAT/0967/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K BUXTONAPPELLANTINITIAL CONTRACT SERVICES LIMITEDRESPONDENT
Before
His Honour Judge Peter Clark Mr D J JenkinsDate 7 May 2002
[1]APPEARANCES For the Appellant MISS S MACHIN (of Counsel) Instructed By: Mr Charles Hantom Messrs Whittles Solicitors Pearl Assurance House 23 Princess Street Albert Square Manchester M2 4ER JUDGE PETER CLARK: This is the second time that this case has been before the Appeal Tribunal. Originally a Tribunal sitting at Shrewsbury under the chairmanship of Mr D P Thompson on 20 August and 5 to 6 November 1998 upheld the complaint of unfair dismissal by Mr Riley against the Respondent, Initial Contract Services Limited, Mr Riley being one of nine relevant employees. That decision promulgated on 10 December 1998 was appealed by the Respondent to the EAT. The appeal was allowed and the case remitted to a fresh Tribunal for a re-hearing.[2]On the second occasion the sample case was that of Mr Buxton, the Appellant before us. By a decision with extended reasons promulgated on 4 July 2001, a Tribunal sitting at Shrewsbury under the chairmanship of Mr S J Williams dismissed the application and effectively with it, the applications of the eight other employees. It is against that decision that this appeal is brought.[3]The grounds of appeal are grouped under four headings. That there was no evidential basis for the decision; that the Tribunal misdirected themselves in law; that they gave inadequate reasons for their decision and finally that the decision was perverse. Having had the advantage of oral submissions by Miss Machin this morning on behalf of the Appellant, we think that the issues in the appeal may be more finely focussed.[4]By way of background, the employees worked on a cleaning contract made between the Respondent and the Kerrygold Company Ltd. That commercial contract was due to expire on 31 March 1998, Kerrygold having given the Respondent three months' notice. Negotiations took place between the Respondent and the employees with a view to the employees agreeing to a variation in terms and conditions of their employment, the new terms being less favourable to them than the old.[5]It seems from the Tribunal's findings of fact that the employees refuse to negotiate on their existing terms and conditions prior to 3 March 1998, on which date each was given 12 weeks notice of termination of his contract of employment. The employees were to work out their notice and the effective date of termination of the contract was to be 25 May 1998.[6]The Tribunal, in concluding that the dismissal was fair for some other substantial reason, appear to have been impressed by the fact that the employees were not prepared to negotiate on the terms of their contracts. Assuming that to have been the factual position as at the date when notice was given on 3 March, Miss Machin has put before us a document which was in evidence before the Employment Tribunal below and indeed is referred to in the first Tribunal's decision. That is summary notes of an internal appeal hearing before the Managing Director, held on 13 May 1998. Within that note is this reference to an issue raised by the employees:
"One off payment. Staff explain to PW (the Managing Director, Mr Webster) that they had been offered a one off payment equivalent to one third of the redundancy entitlement. It was stated that if this payment was for the full redundancy payment, the staff would then accept the change to their terms and conditions."
[7]No reference to that appeal hearing or to that counter offer by the employees appears in the Tribunals reasons presently under appeal. It seems to us that the case raises two points on appeal. They may be formulated in this way: 1. At the internal appeal hearing on 13 May, a counter offer was made by the Applicants, which was not taken into account by the Tribunal in its finding that the Applicant's refused to negotiate with the Respondent. Arguably the Tribunal erred in law in failing to consider both the reason for dismissal and its reasonableness, as at the effective of date of termination, 25 May 1998 as well as at the date when notice was given on 3 March. 2. The Tribunal failed to determine whether the Respondents offer was a reasonable offer, particularly in light of the Applicant's counter offer referred to above in determining the overall reasonableness of the Respondent's decision to dismiss for some other substantial reason.[8]Having identified 2 points which we think are arguable, we shall permit the appeal to proceed on those 2 grounds only. The Appellant is directed to lodge with the EAT, marked for my attention, draft amended grounds of appeal within 14 days of today. I shall then consider granting permission to amend.[9]For the purposes of the full appeal hearing we shall give the following further directions. The case will be listed for half a day; Category C. There will be exchange of skeleton arguments between the parties, not less than 14 days for the date fixed for the full appeal hearing. We shall make no order for chairman's notes of evidence at this stage, assuming that the document which we have referred represents common ground between the parties. If either party wishes to apply for chairman's notes of evidence, then such application should be made in writing, again marked for my attention.