MR A MCDONALD v SPACE KITCHENS & BATHROOMS LTD & OTHERS [2002] UKEAT 1489_00_2102

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1489_00_2102

Case No Appeal No. EAT/1489/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A MCDONALDAPPELLANT

SPACE KITCHENS & BATHROOMS LTD & OTHERSRESPONDENT

Before

Mr Recorder Burke

Date 21 February 2002

[1]APPEARANCES For the Appellant Mr COLIN BREEN (Of Counsel) Instructed by: Messrs Ramsbottom & Co Solicitors 25-29 Victoria Street Blackburn Lancasshire BB! 6DN For the Respondent MR C HENSON Representative PPC Ltd North West Office Saffron House 8 Buccleuch Close Clitheroe Lancashire BB7 3EF MR RECORDER BURKE QC This is an appeal by Mr McDonald against the decision of the Employment Tribunal sitting at Manchester, chaired by Mr Verdin and sent to the parties with Extended Reasons on 16 October 2000, that Mr McDonald's claim against his employers, Space Kitchens and Bathrooms Ltd, for unfair dismissal failed.

[2]Mr McDonald was employed by the employers from July 1998 until September 1999; he worked as a lorry driver driving long distances and earning a considerable amount of overtime. In September 1999 the employers became suspicious that Mr McDonald and 2 other drivers were involved in fraudulent dealings at a local garage. Instead of paying for fuel at the pump by company credit card it was suspected that the drivers were using the credit card to pay for fuel at the cash desk and were including other items which were for the drivers' benefit and not for their employers within the fuel bill on the credit card voucher.

[3]These suspicions were put to the police for investigation. Meanwhile all 3 drivers were suspended on their full basic pay but without overtime. After 2 months or so Mr Lloyd, one of the employers' managers, felt that the investigations of these allegations were going on for too long and that the suspensions were, therefore, going on for too long. The Tribunal found that the employers' suspicions had not receded but that the employers believed it to be fair to remove Mr McDonald from his suspension.

[4]On 19 November a meeting took place between management, including Mr Lloyd, and Mr McDonald. Mr Lloyd told Mr McDonald that he should return to work but for the next six months he would be driving a sprinter van, mostly making local deliveries although sometimes travelling further distances. The Tribunal found that there would not have been the same opportunity for Mr McDonald to earn overtime driving the sprinter van as would have been available to him driving his lorry for long distances. The Tribunal also found that there was no guarantee of overtime in Mr McDonald's contract of employment.

[5]Mr McDonald took some time to consider his position and 2 weeks or so later told the employers that, if he came back to work on the basis offered, he would lose a great deal of money. He said he believed that the employers no longer had trust and confidence in him and that he would not be returning to work. After the earlier meeting, Mr Lloyd had given Mr McDonald a letter recording broadly what had been said at the meeting. At the subsequent meeting on 29 November, Mr McDonald gave Mr Lloyd a letter setting out the position that he had set out orally and concluding that there was no trust and respect for him left as an employee and that the employers had given him no alternative but to resign; and he did not return to work.

[6]It is apparent from this brief recital of facts that Mr McDonald's unfair dismissal claim was based on the assertion that he had been constructively dismissed. His case was put to the Tribunal on the basis that there had been a breach by the employers of the implied term of trust and confidence which was a repudiatory breach and which repudiation Mr McDonald had accepted by declining to come back to work on the terms put forward by the employers.

[7]While the Tribunal's decision does not contain a separate section setting out the principles of law which they applied, it is clear from paragraph 4 of the decision that the Tribunal were applying correctly the principle that Mr McDonald had to establish a repudiatory breach of contract on the part of the employers. No criticism is made of the Tribunal's approach to the case before them in this respect.

[8]The Tribunal decided on the facts that the employers had justifiably suspended Mr McDonald and had justifiably asked the police to investigate. The Tribunal found that there was naturally in the circumstances a mistrust of Mr McDonald which was persisting until the suspicions were either proved or disproved and that, by inviting Mr McDonald to come back to work as a sprinter driver, the employers were seeking to alleviate the hardship constituted by his suspension. The Tribunal concluded in the circumstances that there was no breach of the obligation of trust and confidence.

[9]Mr Breen on behalf of Mr McDonald has not sought today to attack that conclusion. Unhappily, Mr McDonald's case as the Tribunal record at paragraph 4(g) of the Extended Reasons (that paragraph 4(g) being itself a sub paragraph of paragraph 13 of their Extended Reasons) was not put on the alternative basis that, by requiring Mr McDonald to work for 6 months driving a van, the employers were seeking to impose on Mr McDonald a unilateral variation of the terms of his employment by which he was employed not as a driver but as a long distance driver, a lorry driver or an HGV driver (it matters not which way one puts it). We do not know why the case was not put in this way. Unusually, we do not even know whether Mr McDonald was represented before the Tribunal or, if he was represented, by whom and at what level; and we must not be taken to be critical of Mr McDonald or anyone who represented him in drawing attention to the fact that his case was not put as we have described. There may have been good reasons why the case was not put that way.

[10]However, the Tribunal was clearly worried that the case was not put in that way and the Tribunal, again unusually, took it upon themselves to consider whether there was a fundamental breach of the contract of employment in that the employers were seeking to alter substantially and of course unilaterally the terms of that contract. Having thus taken that task upon themselves, they then concluded that no such breach had been established. There was no term that overtime would be available or paid. There could not have been because the Tribunal had found that there was no guarantee of overtime and that conclusion too is not today the subject of challenge; they had no evidence before them of details of Mr McDonald's contract of employment or as to whether HGV drivers could be expected or could not be expected to drive a van. Thus, while they did not put it quite in this way, effectively the Tribunal concluded, as Mr Breen accepts, that Mr McDonald had not proved that there was any term in his contract of employment which prevented the employers from requiring him to drive a van rather than a lorry or on long distance work.

[11]At the preliminary hearing of this appeal Mr McDonald was permitted to proceed to a full hearing on the basis of 1 point. The Tribunal on that occasion said this:

"The Tribunal considered it arguable that the ET (Employment Tribunal) had erred in law in failing to analyse whether, by virtue of custom and practice, there was (at least) an implied term that the appellant would be in a position to earn overtime, and that the employer was thus in fundamental breach by putting the appellant in a position where it was impossible for him to earn any overtime: see the appellant's skeleton argument at point (ix) sent on 18.5.01"

[12]Today Mr Breen, with a degree of candour and frankness for which he is to be congratulated, accepts that he cannot argue for any such implied term if the true position was that the employers were entitled to require Mr McDonald to drive a van, that is to say if he was employed as a driver and not as only a lorry driver or HGV driver or long distance driver. Mr Breen has gone even further in his candour. He accepts, firstly, that, if Mr Henson on behalf of the employer tells us that the true state of the contract between employer and employee was that Mr McDonald was employed only as a driver, then he cannot challenge that and, secondly, if the Tribunal were entitled to find that an express term in Mr McDonald's contract that he was limited to lorry driving or HGV driving or long distance driving was not proved, he cannot challenge that. In neither of those 2 situations, Mr Breen accepts, can he argue for the implied term which was put forward in the skeleton argument and in respect of which this appeal was permitted to go forward because such an implied term would appear to contradict the express contractual terms.

[13]That is a frank recognition on Mr Breen's part and we are grateful to him, that in circumstances in which an express term that Mr McDonald should not have been put on van driving at all was not proved or the contrary was proved, namely that there was an entitlement in the employers to put him on to van driving, this appeal cannot succeed.

[14]Mr Henson tells us that the evidence before the Tribunal was that all the drivers were employed as just that, as drivers, and that there was no obligation on the employers' part to limit Mr McDonald to or to put him only upon work which involved lorry driving, long distance driving or other work through which he could earn the extensive overtime that he had been receiving before the suspension. Mr Breen, as we have recorded, accepts that he cannot challenge that and that on that basis this appeal must fail. The concessions which Mr Breen has made appear to us to be plainly right; unless Mr McDonald could prove a term of his contract which did not permit the employers to put him on to van driving duties, his claim was bound to fail as it did.

[15]For those reasons this appeal is dismissed.