SECURITAY LIMITED v MR L WEBSTER [2009] UKEAT 0013_09_1808

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0013_09_1808Case No Appeal No. UKEATS/0013/09/BI UKEATS/0030/09Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
SECURITAY LIMITEDAPPELLANTMR L WEBSTERRESPONDENT
Before
Lady Smith Miss J Gaskell Mr M SmithDate 18 August 2009
[1]APPEARANCES For the Appellant MR J MUIR (Solicitor) Messrs Muir Myles Laverty Legal Services Meadowplace Building Bell Street Dundee DD1 1EJ For the Respondent Written submissions       SUMMARY Tribunal found claimant, a security guard, to have been unfairly dismissed where he was dismissed for misconduct consisting of(a) writing a letter to respondents in which he unjustifiably alleged impropriety and dishonesty on the part of a director and(b) failing to follow reasonable instructions to attend for work at a new site. Tribunal found that the instruction to attend for work was unreasonable because employers had failed to consider what would be the effect on the claimant of being required to travel further and work night shift and therefore the dismissal was unfair. Claimant had previously worked in same location and there were no difficulties in him being able to work night shift. On appeal, Tribunal found to have substituted its own view for that of the reasonable employer, on no basis in the evidence. Further, it had failed to have regard to the effect of part (a) of the claimant's misconduct and had wrongly included a sum in respect of pay in lieu of notice in the award of compensation. In other respects the award was ill – founded and the reduction for the claimant's own contribution seemed to be inadequate. There being sufficient clear findings of fact which demonstrated that no reasonable Tribunal could have found the dismissal to be unfair, a finding of fair dismissal was substituted. THE HONOURABLE LADY SMITH This is an employers' appeal against a finding that the claimant was unfairly dismissed and entitled to a basic award (reduced by 50 per cent to allow for his own contribution to his dismissal) (£1,348.20), accrued but unpaid wages (£2,445.34) and pay in lieu of notice (£1,498).[2]We propose to continue referring to parties as claimant and respondents.[3]Before the Tribunal, the claimant was represented by Mr M Anderson, solicitor, but was not represented before us. The respondents were represented by Mr J C Muir before the Tribunal and before us. Mr Anderson supplied a very brief written submission for the purposes of the Appeal hearing. Whilst it is, of course, open to a party to do so rather than appear, we were surprised at that being done in this case since throughout the prior series of Tribunal hearings between these parties, the claimant was represented and he and Mr Anderson had evidently pressed his case with vigour. No explanation was afforded to us as to why, at the important stage of appeal, it was decided that neither the claimant nor a representative would appear. We did, however, give careful consideration to what was contained in the written submission and ensured that Mr Muir covered the points raised in it, in his submissions. BACKGROUND[4]The claimant was employed by the respondents as a security guard. He began working for Wackenhaut UK Limited in 2001 and his employment transferred to the respondents in about February 2003. The claimant continued to be employed in terms of his contract of employment with Wackenhaut which provided, in terms of clause 4:
"Depending on the nature of the particular assignment you would be required to work day or night either indoors or outdoors. In addition your hours or place of work may be changed without notice at the company's absolute discretion. The position of a Security Officer is a mobile status and albeit you may work on an assignment for a period of time, you are eligible to be transferred to any other site, within a reasonable travelling distance, for the benefit of the Company or its Customer. There is no compensation or potential claim for such a transfer. A reasonable travelling distance will take into account public transport facilities, own transport and access to the transfer site. You will receive instructions relating to your assignment from your Manager. It is understood that you will be required to work at weekends and during statutory public holidays. Hours of work will be dependent upon which assignment you are scheduled to work and the general manpower requirements. "
[5]5Clause 6 provided:
"Rates of pay may vary from assignment to assignment and the pay rate for the assignment you are employed on is available on request from the Company's office."
[6]Accordingly, no guarantees were given to the claimant under the contract as to hours, place of work or rates of pay.[7]The claimant previously worked as a painter and decorator but after suffering injuries to his leg he changed to working as a security guard. He worked as a security guard at a site in Aberdeen then he moved to work at a site of a client of the respondents in Peterhead. His duties involved operating the main entrance gate which had a barrier; he had to restrict access to persons who were appropriately identified. The client was ASCO, an oil supply company. ASCO were an important client of the respondents. The claimant lives in Peterhead.[8]In October 2005, an ASCO manager raised a concern with the respondents' director, Mr Jennings, about security at the Peterhead site. The barrier at the entrance to the site was being left in the raised position. That security of the site would be a matter of serious concern to ASCO is not at all surprising given the nature of their business. Raising and lowering the barrier was part of the claimant's duties. ASCO raised the matter with Mr Jennings again in January 2006.[9]Mr Jennings made an unannounced visit to the site on 27 January 2006. The barrier was in the raised position and he was able to drive in and park without restriction. He went into the guard cabin and found the claimant there, on the telephone, making arrangements for a three piece suite to be delivered to his home. The claimant completed his telephone conversation and did not attempt to lower the barrier. Mr Jennings introduced himself and told the claimant that the barrier should be lowered to which the claimant responded to the effect " vehicles go in and out all day anyway" and offered to make Mr Jennings a cup of tea.[10]Mr Jennings then wrote to the claimant's line manager advising him of his findings and pointing out the evident breach of company rules. The claimant was summoned to a disciplinary hearing on 2 February 2006 the result of which was that he was dismissed. He appealed, his appeal letter appears not to have reached Mr Jennings or the respondents' Managing Director, Mr Cameron, and it was not immediately dealt with. The claimant presented a claim to the Employment Tribunal on 20 March 2006 and a hearing was fixed for 11 July 2006. The respondents then considered the claimant's appeal, upheld it and the claimant was reinstated subject to a written warning. The claimant was advised that his appeal had been successful prior to the commencement of the hearing on 11 July and, according to a subsequent Employment Tribunal judgment (Chairman Mr N Hosie , registered on 8 March 2007 , at paragraph 30) on 9 July 2006. At the Tribunal hearing on 11 July, the claimant was found to have been reinstated in the respondents' employment and his claim for unfair dismissal was dismissed. We have great difficulty in understanding how the claimant and Mr Anderson can have thought it appropriate to continue with the claim for unfair dismissal as at 11 July 2006 when, before the hearing commenced, it was known that the claimant's appeal against his dismissal had been successful. That being so, as a matter of law, there was no subsisting dismissal for the claimant to challenge as being unfair; the effect of his successful appeal was to revive his contract of employment and put him back in the position that he had been in prior to being dismissed ( Roberts v West Coast Trains Limited [2004] IRLR 788 ).[11]In the light of the difficulties that there had been at the ASCO site Mr Cameron decided that the claimant could not go back to work there. The respondents had no other client sites in Peterhead. They indicated, by letter dated 7 July 2006, that they did have available work at sites in Bucksburn. The claimant's solicitor, by letter of 10 July, complained that there was a "lack of actual details of the terms of re-engagement". Again, he seems to have failed to appreciate that it was not a matter of re-engagement; once the appeal was successful, matters had reverted to the position being that the claimant remained in the respondents' employment.[12]The claimant then raised further proceedings in the Employment Tribunal in which he sought outstanding wages and holiday pay for the period 10 July 2006 to 10 January 2007. The judgment in that case was registered on 8 March 2007 and in paragraph 11, the Employment Tribunal, Chairman Mr N Hosie (sitting alone), explains that the position of the respondents' solicitor was that they were not due to pay the claimant anything because he had made it clear that he did not want to work for them any longer, that the claimant's solicitors had advised that they accepted that under the terms of his contract of employment the respondents could transfer the claimant to any other site "provided it was within a reasonable travelling distance" but that:
"...there was an impasse between the solicitors."
[13]Put shortly, it seems that the claimant's solicitor was looking for specification of the details of the site and work to which the claimant was being transferred whereas the respondents' solicitor was looking for clear assurance that the claimant did in fact wish to return to work for the respondents as they had understood him to indicate that he did not wish to do so at all because he did not trust them. At paragraph 16, the Tribunal observes:
"The correspondence between the parties' solicitors continued on and on in the same vein."
[14]In December 2006, an attempt was made to fix a meeting between the claimant and the respondents to discuss the places where he might be employed but, as recorded at paragraph 24:
"The impasse between the parties continued."
[15]The Employment Tribunal Chairman, Mr Hosie, found that it was incumbent on the respondents to provide the claimant with details of what was being proposed concerning his continued employment. At paragraph 25, he set out in his judgment certain views which had been expressed by him in the course of the hearing on 10 January 2007:
"I remain at a loss to understand why they have not done so. This would have "put the ball in Mr Webster's court"
. As it was, the ball remained firmly in Securitay's court. Provided it was in accordance with the Contract of Employment, and in particular clause 4, it was within Securitay's power to instruct Mr Webster to report for work at a specific location on a certain day at a certain time and if he failed, or refused, to comply with such an instruction they would then have been in a position to take disciplinary action against him."[16]The respondents' Mr Jennings wrote to the claimant by letter dated 11 January 2006 in terms which included:
"Further to the tribunal yesterday 10 January my understanding is you are willing to return to work. I would like to make the companies (sic) position clear, we cannot place you on an ASCO site because of the disciplinary action taken against you last year, however, should a suitable site become available in Peterhead out-with the ASCO contract we will put you on it. You are employed to work as a security officer on hourly pay, at hours dictated by Securitay, in my view this has not changed the only thing that has changed is the location of where you carry out your duties. We would therefore expect you to make yourself available for work as of Monday 15 January 2007 as you are aware we intimated that there would be a suitable site at Bucksburn however the hours are now reduced on this site and the shift is only seven hours duration which would not be suitable to travel from Peterhead for. We have therefore placed you on a site for Chap Construction Site at Tillydrone, Aberdeen this is a fifteen hour shift which you would work three days per week, we will pay your contracted 48 hours per week the additional 3 hours will go towards travelling expenses, by taking the longer shift it is less travelling. You will commence work there on Wednesday 17 January at 16.30 hours your duties will be as a security officer your rate of pay will be £5.35 per hour. To get directions and discuss duties etc. (see attached rotas) please contact Blair Robertson our Aberdeen Contract Manager on…"
[17]The same day, the claimant wrote to Mr Cameron in terms which included a number of allegations that Mr Jennings had consistently been acting improperly towards him, that he had arranged for him to be dismissed the previous February, that he colluded with the respondents' solicitor to engage in a 'points scoring' exercise rather than answer genuine questions, that he had unlawfully withheld pay which he knew to be due to the claimant and that he had made statements outwith the Tribunal setting which contradicted what he had said in the Tribunal setting. He sought to take a grievance against Mr Jennings. The respondents' solicitor replied by letter of 23 February in terms which made it clear that they took the greatest exception to what the claimant alleged about Mr Jennings to the extent that some of the comments were verging on being defamatory; in particular they pointed out that the claimant was alleging, in effect, that the Mr Jennings was a liar and had lied under oath before the Tribunal.[18]The claimant responded to the respondents' letter of 11 January to the effect that the respondents' "proposed job" was not suitable (by letter dated 17 January 2007). His objections were threefold. Firstly, he did not consider that the Tillydrone site was within a reasonable travelling distance. Secondly, he objected to the fact that there would be a reduction in overall hours from 56 hours (the hours he worked previously at Peterhead) to 48 hours. Thirdly, he sought clarification as to what the job entailed since he thought it would be fundamentally different.[19]There was, at that stage, due to the sudden death of the respondents' solicitor Mr McMichael, a change of personnel in their representation. Mr Muir, a partner of Mr McMichael's, took over acting for the respondents. He responded to the claimant's letters of 11 and 17 January on their behalf by letter dated 23 February 2007. He pointed out that serious issue was taken with the claimant's allegations; they were regarded as verging upon the defamatory. That letter also intimated to the claimant that disciplinary proceedings were being instituted against the claimant in respect of(a) the various allegations he had made about the honesty and integrity of Mr Jennings; and(b) his failure to follow reasonable instructions in not attending for work on 17 January 2007.[20]A Disciplinary and Grievance hearing took place on 22 March 2007, the latter to cover the fact that the claimant had asked that his letter of 11 January be treated as a grievance. The claimant was present, as was Mr Jennings, and a secretary was in attendance. The claimant handed Mr Jennings a written statement he had prepared which expanded on the allegations in his letter of 11 January. Mr Jennings undertook to take it away and read it. Regarding the failure to attend for work, the claimant stated that the respondents' instruction was "an illegal order".[21]The claimant was asked whether he was of the opinion that the respondents could not ask him to work in Aberdeen. He said:
"Yes, not in agreement."
[22]He did, however, accept that he had previously worked in Aberdeen for the respondents at a site there. The claimant acknowledged that the respondents had what he referred to as "some limited mobility rights". He stated that a forty mile round trip was not acceptable or reasonable. He accepted that the job of a security guard could be night shift or day shift. The claimant was looking to work in Peterhead, back at the ASCO site. In short, that job suited him. Mr Jennings explained that the claimant could not go back there because he had received a final warning and been removed from the site. Mr Jennings specifically referred the claimant to paragraph 25 of Mr Hosie's judgment. The claimant's position was that the Tribunal was entirely on his side. Mr Jennings explained that they had no client site in Peterhead other than the ASCO site.[23]Following the disciplinary hearing, Mr Jennings advised the claimant via Mr Anderson that his decision would be to dismiss the claimant but he first sought to reach an accommodation with him. That conversation took place on 28 March 2007. The parties' solicitors sought but failed to reach a mutually acceptable agreement and the claimant was advised by letter of 3 May, which enclosed a letter dated 22 March, that his employment had been terminated on grounds of gross misconduct in respect that he made derogatory comments about Mr Jennings in his letter to Mr Cameron of 11 January and he had failed to follow a reasonable instruction and not attended for work on 17 January 2007. By letter of 23 April, the respondents formally rejected the claimant's grievance. The Tribunal's Judgment[24]At paragraph 51, the Tribunal state that they broadly accepted the evidence of Mr Jennings where it conflicted with that of the claimant and that they did not find the claimant to be a particularly persuasive witness. They state that they did not gain the impression that there was any antipathy towards the claimant from Mr Jennings. That was against the background of Mr Anderson having set out, in his written submission for the claimant, that:
"Quite simply, Richard Jennings is the worst type of employer imaginable. He is cruel and merciless and has no respect for anyone other than himself." and that he had been engaged in a: "…clear, sustained and quite unnecessary campaign of victimisation…against the claimant."
[25]We find these to be extraordinary submissions to have made given that no evidence appears to have been led by him to such effect at all. The Tribunal clearly were not minded to accept them and their comments at paragraph 51 are to opposite effect. The submission is perhaps indicative, however, of the extent to which sight unfortunately appears to have been lost in this case of the need to seek to resolve parties' differences rather than continue to engage in adversarial warfare.[26]It is notable that, also at paragraph 51, the Tribunal state that the claimant clearly disliked Mr Jennings. They make no findings, however, which could be interpreted as attributing that dislike to anything other than that Mr Jennings was the person who initiated the disciplinary procedure arising from misconduct – a procedure which the Tribunal found was entirely justified – and that Mr Jennings would not let him return to work at the ASCO site, which was where he wanted to work. As far as that was concerned, the Tribunal was also satisfied that that was a reasonable stance to adopt given the importance of the client.[27]The Tribunal, in particular, accepted the following:• The claimant had no intention of working for the respondents other than at his preferred site in Peterhead, the ASCO site, on his own very specific terms.• The claimant's dislike of Mr Jennings was such that the Tribunal could not envisage him ever being prepared to work under Mr Jennings again.• What Mr Jennings found when he visited the site unannounced was unsatisfactory.• Given what Mr Jennings had found at that visit the respondents were entitled to discipline the claimant; they were also entitled to accept the report of ASCO's concerns about security at the site.• Despite the claimant's criticisms of Mr Jennings and allegation that the initial disciplinary proceedings were a sham, he seemed to have lost sight of the fact that he accepted the late hearing of the appeal and the fact of his reinstatement.• Whatever the effect of the claimant's prior injuries which caused him to change jobs from that of painter and decorator to working as a security guard, he could walk unaided and carry out the usual duties of a security guard.• The distance to the Tillydrone site, though a round trip of 30 to 35 miles, was not an unreasonable travelling distance; it was "not out of the way or in any way out of the ordinary" (paragraph 67).• The claimant had not even tried the journey to see if it was practicable.• The fact that pay and hours would be different did not make the instruction unreasonable because no guarantees were given in the contract about pay or hours.• Although the respondents did not offer the claimant a free health check before he commenced working night shifts (see: Working Time Regulations 1998 para 7) the claimant had no free standing right to such a health check that was enforceable via the Tribunal and the failure did not make the respondents' instruction illegal or unreasonable; further, there was no suggestion that the claimant would have any difficulty in working night shift. The Tribunal were in fact wrong to approach matters on the basis that the claimant was not given the opportunity to have a free health check but in the event, their error in that respect was not material.• They accepted that Mr Jennings was entitled, for the purpose of protecting a valuable client relationship, to decide not to return the claimant to the Peterhead site.• The claimant was not prejudiced by reason of his grievance having been dealt with separately from the disciplinary process.• The respondents were entitled to move the claimant to other sites.• Although there was no discussion between the parties about the conditions of the new post they accepted that any such attempts were highly unlikely to lead to a meeting of minds given the claimant's determination only to return to work at the ASCO site.[28]None of the above factors either singly or together were such as to persuade the Tribunal that the decision to dismiss was unreasonable but then, at a point in the judgment where all seems to be leading to a conclusion that the instruction to the claimant to work at the Tillydrone site was a reasonable one, at paragraph 74, the Tribunal state:
"The Tribunal only narrowly came to the view that the instruction to attend for work was unreasonable."
[29]At paragraph 75 they comment that the instruction given by Mr Jennings was:
"…clearly borne out of frustration." a comment which is unexplained and not obviously related to any particular adminicle or adminicles of evidence. At paragraph 76, they state: "
The Tribunal came to the view that the instruction was unreasonable because of the failure of the respondents to consider both the possible effect of driving to work on the claimant and the change from daytime working to nightshift work." and on that basis, they found the dismissal to be unfair. No case had been made by the claimant that the circumstances were such as to require that possibility to be considered. There was no evidence before the Tribunal as to what the 'possible effects' on the claimant would have been; in particular there was no evidence to indicate that any such effects would have been negative to any extent beyond the fact that the claimant would not have been working where he wanted to work. The Tribunal, separately, rejected a submission that the claimant's dismissal was unfair under and in terms of s.101A of the Employment Rights Act 1996 , which seems entirely appropriate in our view since, quite apart from any question of whether s.101A can be read as relating to regulation 7 of the Working Time Regulations at a stage such as the parties had reached in this case (with the respondents being told by the claimant that he would not agree to take up the nightshift job) , the respondents had in fact, through their solicitors, afforded the claimant the opportunity to be medically examined (see: letter from Mr Muir to Mr Anderson dated 7 March 2007).[30]The Tribunal make no further reference to the reasons for dismissal. In particular, they make no further reference to the misconduct constituted by the comments made by the claimant in his letter of 11 January 2007; they do not consider whether that misconduct was, of itself, such as to justify dismissal, as they ought to have done.[31]The Tribunal turned to the question of remedy and awarded compensation of £1,000 on the basis that that represented four weeks' wages and bearing in mind the claimant's antipathy towards Mr Jennings, there was no realistic prospect of him returning to work for the respondents. It is thus quite plain that whatever the Tribunal's view about the reasonableness of the decision to dismiss they did not conclude that the respondents acted unreasonably in refusing to allow him to return to work at the ASCO site in Peterhead; had that been their approach, the figure for compensation would obviously have been much higher.[32]The claimant was not satisfied with that result and sought a review. A review hearing took place on 29 December 2008. Following the review, the Tribunal, in a judgment registered on 8 January 2009, awarded the claimant three sums: £1,348.20 as basic award (reduced by 50 per cent to allow for contributory conduct), £2,445.34 as accrued but unpaid wages for the period 11 January 2007 to 3 May 2007, and £1,498 as pay in lieu of notice. It is difficult to identify how the last two figures have been arrived at since(a) the Tribunal begins by using an hourly rate of £3.35 which was not supported by any evidence and is at variance with the figure of £250 per week brought out in their original judgment (based on a 56 hour week),(b) at another part of the calculation, the Tribunal use a figure of £299.60 per week, (c ) pay in lieu of notice is calculated on the basis of the claimant having had 5 full years employment whereas he had had 6 such years, and (d) the claimant's claim as specified in his form ET1 and in Mr Anderson's schedule quantifying the claim was for, a basic award, loss of statutory rights, and compensation which is set out as including unpaid wages for the period 11 January 2007 to 3 May 2007; he did not specify a claim of breach of contract such as to give rise to a claim for pay in lieu of notice or a figure for pay in lieu of notice and the Tribunal does not explain how such a claim somehow properly and unusually arose in the context of their award of compensation for unfair dismissal.[33]As regards the question of reduction of compensation to allow for the claimant's own contribution, the Tribunal begin, at paragraph 11, by noting:
"The Tribunal found that Mr Webster contributed to his dismissal first of all through the original disciplinary offence and thereafter thought (sic) his behaviour in relation to the comments made about Mr Jennings in his grievances."
[34]The Tribunal reduced the award by 50 per cent in the light of that contribution explaining that:
"As we have observed in the principal Judgment both sides were equally intransigent and although we came to the view that it was unlikely that Mr Webster would ever have returned to work for Mr Jennings the instruction ultimately given to him to return to work was unreasonable in all the circumstances. He was therefore not guilty of gross misconduct in refusing to attend the site but his actions did contribute to his dismissal."
[35]The Tribunal did not, however, find that parties were "equally intransigent" in the original judgment and, once more, the Tribunal has failed to have regard to the fact that it was satisfied that the claimant had committed misconduct by making the allegations about Mr Jennings that he made in his letter of 11 January and in his grievance statement. Relevant Law[36]The Tribunal required to have regard to the terms of s.98(4) of the Employment Rights Act 1996 and to the guidance given in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 namely, as has been so often since repeated, that the Tribunal required to avoid substituting its own decision as to what was the right course of conduct to adopt for that of the reasonable employer, that in many cases there is a band of reasonable responses within which one employer might reasonably take one view and another quite reasonably take another and that the function of an Employment Tribunal is to determine whether in the particular circumstances of the case the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal fell within that band it is fair. The Appeal[37]Mr Muir submitted that the Tribunal had erred in law; they had substituted their own view for that of the reasonable employer, they had failed to apply the band of reasonable responses test, they had failed to apply themselves correctly to the issue of contributory conduct, they had wrongly awarded a sum in respect of pay in lieu of notice and they had wrongly found that the claimant was entitled to wages for the period 11 January 2007 to 3 May 2007 on the basis of 56 hours per week.[38]Mr Muir took us carefully through the Tribunal's original judgment and the review judgment. He submitted that the Tribunal had wholly failed to have regard to the question of what was the impact on the employment relationship of the allegations made by the claimant against Mr Jennings; they plainly went to the root of the contract and raised the question of whether or not trust and confidence could ever be restored. He pointed to the parts of the judgments that made it plain that the claimant's position was that he was not going to go back to work for Mr Jennings and that his objective was to return to work at the ASCO site in Peterhead, on his own terms. The background here was one of misconduct by the claimant in his performance of his duties at the ASCO site such as to justify the respondents in deciding he could not return there. Then there was disobedience to a clear and concise instruction allied to the allegations made by the claimant against Mr Jennings at a time when it was difficult to fathom how and why he thought it was appropriate to raise them; he had been absent from work for 11 months by then and they were made on the day following a Tribunal hearing at which the Chairman had indicated that the way forward was for the respondents to give the claimant a clear instruction, which they did. Mr Muir pointed out that the claimant had never complained that he could not work night shifts or that he would have any problem in driving to Aberdeen. Regarding the matter of a health assessment, he had had the opportunity to have one and if the Tribunal had found that there was a breach of the WTR they had erred. The Tribunal had also erred in awarding wages up to 3 May since, quite apart from anything else, the claimant knew he was being dismissed on 28 March, in basing their calculation on 56 hours per week, in their assessment of contributory conduct, which was inadequate and in awarding pay in lieu of notice which was wholly inappropriate. Further, the wage loss calculation did not make sense.[39]The written submission supplied by Mr Anderson was to the following effect: it quotes from several parts of the Tribunal's judgment relating to the reasonableness of the decision to dismiss and states that the Tribunal were entitled to find that the decision was unreasonable. It states that once the Tribunal had determined that the instruction issued by the respondents was unreasonable, there was no requirement to then apply the band of reasonable responses test but, in any event, the Tribunal did give consideration to it. In support of the latter, the submission refers not to the Tribunal's judgment but to the claimant's written submission which refers, not surprisingly, to the need to have regard to the test. As regards contribution, the submission states that the assessment was not perverse because the respondents were found to have issued an unreasonable instruction. As regards the award of payment in lieu of notice, the submission states that it was a payment that the claimant was entitled to receive because the respondents were in breach of contract. As regards the calculation of loss being on the basis of a 56 hour week, the submission refers to the fact that when the claimant was working he normally worked a 56 hour week. The submission, finally, states that there should be no consideration of the issue of whether or not the claimant was entitled to wages based on a 56 hour week from 11 January 2007 to 3 May 2007 because it asserts, the respondents have no relevant ground of appeal; we are puzzled at that given the specific terms of ground 6(v) of the Notice of Appeal but see that if Mr Anderson had failed to turn to the second page of the Notice, he could have missed it. Discussion and Decision[40]On the facts found by the Tribunal, the following are of particular significance: The claimant had committed acts of misconduct in two respects(a) the allegations made in his letter of 11 January 2007 and(b) his failure to follow an instruction to attend work at the Tillydrone site in Aberdeen on 17 January 2007, under and in terms of the clear instruction contained in the respondents letter to him of 11 January 2007. His contract of employment (a) entitled the respondents to instruct him to change worksites subject only to the proviso that the new site was within a reasonable travelling distance, (b) entitled the respondents to require the claimant to work dayshift or nightshift, and (c ) afforded the claimant no guarantee as to hours or rates of pay. The claimant was not prepared to work at Tillydrone. He regarded the instruction of 11 January 2007 as an "illegal order", which it was not. He accepted that a security guard's job involved both day shift and night shift but he objected to being placed on night shift after having had a period of some two years on day shift. That was the extent of his objection to night shift. He contended, initially, that working at Tillydrone would involve a 63 mile round trip (in his letter of 17 January 2007 to the respondents), then that it would involve a 40 mile round trip (at the Disciplinary Hearing) and the Tribunal found that it would in fact involve a round trip of 30-35 miles and that that was not an unreasonable distance (i.e. the proviso in clause 4 of the claimant's contract was not triggered). There was no finding to the effect that there was any doubt as to the claimant's physical ability to drive that distance three times each week, which is what the new work schedule would have entailed. The claimant objected to his hours being reduced and the consequential reduction in earnings that he would suffer. The claimant did not accept that the respondents were entitled to remove him from the ASCO site; he could not accept that he had done anything wrong there beyond, as he put it to Mr Jennings at the Disciplinary Hearing:
"I only went to make you a cup of tea."
The claimant was not prepared to try working at Tillydrone. He was intent on returning to his old job. Further, he was not prepared to work under Mr Jennings, a man who was not, whatever the claimant thought, ill disposed towards him. The respondents had no client sites in Peterhead other than the ASCO site. The respondents decided, however, not to take the risk of reinstating the claimant at that site given the importance to them of ASCO as a client. That was a judgment which was reasonable and was one which they were entitled to make. In deciding to instruct the claimant to work at Tillydrone, the respondents had regard to the fact that he would be travelling longer distances than when he was working at the ASCO site and so decided to give him three longer shifts each week, on the basis that that would be better than more shorter shifts.[41]The foregoing all point to the dismissal of the claimant following the disciplinary hearing being well within the range of reasonable responses open to the respondents. As we have already noted, the Tribunal's conclusion at paragraph 74, that the instruction to attend for work at Tillydrone was unreasonable, comes as a surprise. The judgment appears, prior thereto, to be leading in the direction of the opposite conclusion. Further, the Tribunal's explanation for their conclusion does not accord with their own findings in fact. The driving and working nightshift were not matters which, on any findings, the claimant was liable to find physically difficult and his complaint was not that there was a risk of that happening. He did not want to work in Aberdeen. That much is plain. But that is a different matter and founded no basis for the Tribunal's reason for concluding that the instruction to work there was unreasonable.[42]There is, further, no indication of the Tribunal having reminded itself that it had to consider whether the decision to dismiss fell within the range of reasonable responses open to the respondents taking account of the whole circumstances which included not only the whole circumstances in which they decided to exercise their contractual right to instruct the claimant to work at a new site, but also the separate misconduct constituted by the making of the allegations about Mr Jennings. The latter was, we agree, plainly a highly significant matter; his allegations included allegations of perjury and dishonesty and the Tribunal accepted that they constituted misconduct on his part. There was obviously a very real question as to whether or not trust and confidence between parties could ever be restored. There is nothing in the judgment to indicate that the Tribunal did have regard to the whole circumstances or to the range of reasonable responses test as set out in Iceland Frozen Foods Ltd v Jones . The fact that it was referred to in the written submission for the claimant does not assist and we do not accept Mr Anderson's written submission to us that once the Tribunal had decided that the instruction was unreasonable, they did not need to consider it. On the contrary, that approach would allow a determination of unreasonableness to be made without having regard to the range of reasonable responses at all, which is to completely miss the point that was made in Iceland Frozen Foods . We are satisfied that the Tribunal fell into error not only in failing to have regard to the whole circumstances and failing to have regard to the range of reasonable responses test but also, in its reference to the need to consider the two factors referred to at paragraph 76 of its Reasons, substituting its own view for that of the reasonable employer.[43]We have considered whether or not we can decide the issue of whether or not the claimant was unfairly dismissed without a remit. We are satisfied that there are sufficient clear findings in fact to enable us to do so and the only conclusion that, in our view, could have been reached on those facts is that the dismissal was fair.[44]Separately, we accept that the criticisms made of the award that appear in the Review judgment are well founded. We have already referred to the difficulties we have in understanding how the final figures are arrived at but since we find the dismissal to have been fair the award of compensation falls in any event. There are, however, two matters that still require to be addressed. Firstly, there is the claim for unpaid wages. Inherent in the conclusion that the dismissal was a fair one is that the instruction to attend for work at Tillydrone was a reasonable one. That being so, the claim for unpaid wages from 11 January 2007 is ill-founded; the claimant could have earned wages during that period but chose, in contravention of the respondents' instruction not to turn up for work. He is not, accordingly, entitled to wages after 11 January 2007. Secondly, it is evident from Mr Anderson's submission that the claim for pay in lieu of notice was being advanced as a claim for breach of contract but, as above noted, the claimant's claim was not a claim for breach of contract. It also falls for the same reason as the unpaid wages claim.[45]As regards the matter of contribution, the Tribunal's finding that the claimant's contribution was only 50 per cent does, we agree, appear low in the circumstances and we cannot identify any act or omission of the respondents in the relevant period, namely between 11 January 2007 and the date of dismissal, which could fairly be characterised as intransigent at all. We can see that there would, as submitted by Mr Muir, have been a case for a 100 per cent contribution. We do not, however, in the circumstances, require to determine this issue. Disposal[46]In these circumstances we will pronounce an

order

(a) setting aside the judgment of the Employment Tribunal registered on 8 September 2008 and substitute for it a judgment dismissing the claim; and(b) setting aside the judgment of the Employment Tribunal registered on 8 January 2009.