Wess v Science Museum Group (Contract of Employment : Implied Term/Variation/Construction of Term) [2014] UKEAT 0120_14_0610
EAT
Wess v Science Museum Group (Contract of Employment : Implied Term/Variation/Construction of Term)
[2014] UKEAT 0120_14_0610 · 2014-10-06
[33]A sensible starting point is that laid down by Elias P (as he then was) in Solectron Scotland Ltd v Roper [2004] IRLR 4 EAT at paragraphs 30 and 31. “30. The fundamental question is this: is the employee's conduct, by continuing to work, only referable to his having accepted the new terms imposed by the employer? That may sometimes be the case. For example, if an employer varies the contractual terms by, for example, changing the wage or perhaps altering job duties and the employees go along with that without protest, then in those circumstances it may be possible to infer that they have by their conduct after a period of time accepted the change in terms and conditions. If they reject the change they must either refuse to implement it or make it plain that by acceding to it, they are doing so without prejudice to their contractual rights. But sometimes the alleged variation does not require any response from the employee at all. In such a case if the employee does nothing, his conduct is entirely consistent with the original contract containing; it is not only referable to his having accepted the new terms. Accordingly, he cannot be taken to have accepted the variation by conduct.[31]So, where the employer purports unilaterally to change terms of the contract which do not immediately impinge on the employee at all - and changes in redundancy terms will be an example because they do not impinge until an employee is in fact made redundant - then the fact that the employee continues to work knowing that the employer is asserting that that is the term for compensation on redundancies, does not mean that the employee can be taken to have accepted that variation in the contract. ” See also the Decision of McCombe J, sitting in the Queen’s Bench Division, in Harlow v Artemis International Corporation Ltd [2008] IRLR 629 .34. In W E Cox Toner (International) Ltd v Crook [1981] ICR 823, it was stated that mere delay will not be sufficient. That was an affirmation case and it was considered that what was required would be some form of express or implied event indicating affirmation, although it was allowed that protracted delay might itself amount to implied affirmation.35. As for the unfair dismissal case, the ET was here concerned with the question of the fairness of a redundancy dismissal. I have been reminded of the guidelines laid down by the EAT in Williams and Others v Compare Maxam Ltd [1982] IRLR 83 . I particularly note the observation that an employer will seek to ensure that a selection exercise is carried out fairly, in accordance with the criteria set down, and having considered any representations made by the trade unions. I also accept the Claimant’s observation - derived from the EAT’s Judgment in Payne v Spook Erection Ltd [1984] IRLR 219 - that a selection process should be tested as a matter of law and good industrial practice. That seems to me to be a way of saying that the ET must test the process adopted by the employer against the range of reasonable responses open to the reasonable employer in the particular circumstances of the case. Submissions The Claimant’s Case36. The Claimant clarified that she was not seeking to argue perversity.37. On the wrongful dismissal claim, the case of Harlow v Artemis International Corporation Ltd supported her. She had never signed the contract. She had originally written to accept the new position on the understanding that her terms and conditions would remain the same. Further, the Civil Service Code, which had applied to her under the original contract, was clear: a change in terms and conditions required consultation. On clarifying this point in oral argument, it was explained to me that the Code was not itself before the ET but had been referenced in e-mails between the Claimant and her trade union advisor, which were. The e-mails make the point that the Code stated, “Employers have no discretion to vary compulsory redundancy terms”. I have not seen, however, the context of that statement and do not know what, if anything, was said about notice period or, perhaps more relevantly, as to the possible introduction of new terms and conditions, specifically as to the introduction of a new contract.38. In any event, it was the Claimant’s case before me - from evidence that was before the ET - and, applying Harlow and Solectron , it could not have concluded that her conduct in working, after the new contract had been sent to her, was referable to her acceptance of it. The relevant context had to be taken into account. That was, her right to six months’ notice under the Civil Service Code; her initial letter saying that she did not understand her terms and conditions to have changed; the fact that she had never signed the new contract; and the fact that the notice period provision did not have an immediate practical impact upon her.39. On the unfair dismissal appeal, the Claimant first reminded me of the ET’s finding, at paragraph 114, that Mr Ellory-van Dekker had felt affronted by her grievance. She further pointed to evidence of his animus towards her in his dealings with her about the length of time it took her to prepare the lecture for the Royal Society and with his input into a referral to Occupational Health. The recommendations from Occupational Health had not been followed, in particular the recommendation that there should be an investigation as to whether her perceptions were accurate. She also observed that looking at her performance plan for 2011/12 gave a very different impression to the picture of her presented by Mr Ellory-van Dekker. The evidence was clear that she had genuine grounds for her grievance against Mr Ellory-van Dekker, which had been generated by the e-mail of 2 December 2011, from Ms Hall in HR who stated it would be beneficial if the complaints were put on a more formal footing.40. As for the grievance against Ms Mayfield, the timing of that was due to the fact that it was only when she learned that Ms Mayfield might be determining her grievance that she realised she needed to take that step. Neither grievance was in response to those individuals being on the selection panel.41. As for the changes made by the Respondent to the selection panel, they had been cosmetic. Given Ms Hall’s evidence at the ET, she was not going to be an independent member. Ms Mayfield, as Deputy Director, was the most senior panel member and Mr Ellory-van Dekker, as Head of Collections, would plainly be influential. As for the two new members of staff, they were only recent appointees, would not have known of the situation and would not have had sufficient experience to stand up to other members of the panel. There was other evidence before the ET which showed the selection process was not unfair, but that went beyond the basis on which this matter had been permitted to proceed to a Full Hearing. The Respondent’s Case42. On the wrongful dismissal appeal, it was the Respondent’s position that the conclusion reached had been one properly open to the ET on the evidence before it; this was really a perversity challenge. On 17 March 2003, the Claimant had been issued with a new contract, which replaced the old contract she had been given 24 years previously. She had been asked to return a signed copy of the contract, and a number had been given for her to contact if she had any queries. She did not do so. The covering note asked her to read the content of the new contract carefully. The last page made plain that the new job description formed part of the new contract of employment. The ET had made a finding of fact that the Claimant had not objected to the new terms and conditions. There was no appeal from that finding.43. The ET further addressed the fact that the Claimant had appealed the grading of her new position. She had been successful in that, and there had been an upgrade and a change in title to Senior Curator. The upshot of this, the Respondent urged, was that a brand new contract had been offered to the Claimant and she had agreed to the job description which was part of that contract. It had not been open to her to accept one part but object to others or to remain silent on yet other aspects for nine years before raising any objection.44. The cases relied on by the Claimant - Harlow , Solectron and Jones - all concerned single isolated changes to particular terms. This was the introduction of an entirely new contract. In particular, in Jones v Associated Tunnelling the primary basis for the decision had been the implication of a term. The obiter part of the Judgment - on the consensual variation of terms - related to very different factual context to the present. As for the reference to the Civil Service Code, that had not actually been before the ET, save for extracts referenced in e-mail communications. In any event, the issue could only be whether that had been incorporated into the new contract, which it was not.45. On the unfair dismissal appeal, Mr Brittenden reminded me that the Claimant’s arguments on collusion had been squarely before the ET. It had five full lever arch files of documentary evidence. All members of the panel had been called and cross-examined; each asserted that they had made their own independent assessment at the selection stage. Over seven days of evidence the ET had scrutinised the material before it - both witness testimony and documentary evidence - on this point and had reached conclusions of fact open to it.46. Descending into some of the detail, on 17 February 2012 the Claimant had been told of the identity of those making up the selection panel. The next day, her trade union representative had objected, and the Respondent had taken steps to respond to the concerns raised. There had been no further objection raised by the Claimant or her trade union representative thereafter. Indeed the Claimant responded that she appreciated the Respondent’s response, “I really appreciate you taking [my trade union representative’s] suggestion seriously.” That could fairly be taken to amount to agreement to the composition of the selection panel.47. As for the scoring, the ET dealt with that in detail in its findings of fact (paragraphs 71 to 74). It was alive to the issue whether there had been improper influence by any members of the panel (see paragraph 72, which related how the two independent members gave their views first and all the scores by each member of the panel were recorded at the first discussion stage, not simply at the wash-up stage at the end). The ET had found (paragraph 73) that the consistency in the scoring reflected the genuine views of the members of the panel. There was no collusion.48. As for paragraph 108, setting out the ET’s conclusions on this point, the first sentence properly read demonstrated two alternative findings. The ET went on to address the timing of the grievances issue but then dealt with each point in the alternative in its reasoning. The finding that the two new members of the panel were totally independent was a conclusion reached by the ET having heard evidence from all the members of that panel, tested under cross-examination. The Claimant had not challenged the scoring on this appeal. The Claimant in Reply49. The Claimant told me that there had been evidence before the ET that the scoring - at least that of one member of the panel - of the alternative candidate had changed. Whilst that might not have impacted upon her scores, it showed there had been changes to the scoring process during the discussions. Further, the scores might have been affected by her performance at the time; the situation she was in; what she felt was an unfair role-play and the difficulty she found herself in faced with two people against whom she had raised grievances. She stressed again that her grievances had not been cynical, either in their content or timing. Discussion and Conclusions Wrongful dismissal50. I accept that mere delay might, of itself, be neutral in determining whether an employee can be said to have acquiesced in the case of an employer’s breach of contract or in deciding whether or not an employee has accepted a change to a contractual term. If it does not have any immediate, practical impact upon the employee, why should they raise the challenge?51. This case is, however, about more than simply a unilateral change of one term of the Claimant’s contract. It involved the introduction of an entirely new contract. The Respondent did not purport to maintain the Claimant’s former contract subject only to a unilateral variation of her notice entitlement. It departed from that former contract and introduced an entirely new package, which encompassed not just the terms and conditions but also the job description and the handbook. Plainly some of that impacted on the Claimant straightaway: she was working to a new job and pay protection arrangements were introduced. Indeed, the Claimant expressly raised an objection to part of the new package, by appealing against the grading of her new position. Whilst doing so, however, she did not seek to make any express objection to the changes in the terms and conditions. Indeed, knowing of the change in question to her notice period - as the ET found - she continued to work to the new contract without objection.52. I do not consider the force of this point undermined by such references as I have seen to the Civil Service Code. That was not part of the new contract to which the Claimant worked for some nine years without objection.53. In considering that time period, it seems to me that the ET was entitled to have regard to the Claimant’s position. She herself had held a trade union role. She was someone who could be expected to have regard to the detail of the terms and conditions and to raise queries if they arose. On the facts, her position was very different to the worker being considered in Jones .54. Moreover a notice period can have an immediate impact, even if not in quite the same way as the weekly wage. It impacts upon job security, which can, in turn, have a real and practical importance for the employee (for example, in terms of a mortgage application etc). Here it was part of a package. It was not left that the Claimant could cherry-pick as between the old and new contracts. She was offered a new job on a new contract. She accepted the former and worked to the latter. On the particular evidence and facts in this case, the ET was entitled to find that that amounted to acceptance.55. Properly understood, the wrongful dismissal appeal is one of perversity. In my judgment, it does not meet the high test laid down so as to make good that challenge. Unfair dismissal56. The sole point permitted to proceed to Full Hearing is concerned with the involvement of two particular individuals on the selection panel, against whom the Claimant had raised grievances. Putting the point that way inevitably puts the spotlight on the ET’s finding that the Respondent was entitled to have regard to the timing of the grievances. Of itself, however, that would be an unfair characterisation of the ET’s Reasons for finding that the selection process in this case had been fair.57. One can see why the Claimant might initially have been concerned as to the composition of the selection panel. That, however, was the subject of reassurance at the time, with changes made to the panel which seemed to be accepted by the Claimant at that stage: there was no further objection by her or her trade union representative. More importantly for my purposes, such concerns as the Claimant had - and as were raised in her ET claims - were scrutinised in detail by the ET. It was alive to the question whether there had been any improper influence by any members of the panel. In its detailed findings of fact (paragraphs 71 to 74), it carefully examined the Respondent’s evidence on this point (which was, no doubt, tested in full in cross-examination). Each member of the selection panel gave evidence. It found as a fact that, when it came to the assessment of the two individuals concerned, it was not Mr Ellory-van Dekker or Ms Mayfield who expressed any view at the outset; the discussions were commenced by the two newer appointees to the Respondent, whom, the ET found, were totally independent.58. Moreover, the scores themselves were not just a matter of record after the discussion had taken place as part of the wash-up process. They were noted down at the outset of the discussion. Although the Claimant might have been able to point to a change in one of the scores in relation to the other candidate, there was no evidence of such a change of scoring occurring during the discussion in the Claimant’s case.59. The ET further considered the possibility that the consistency in the scoring itself reflected collusion. At paragraph 73, however, it found as a fact that it did not. It simply reflected the genuine views of the members of the selection panel. That is a finding of fact not open to challenge on appeal.60. The first sentence of paragraph 108 - in the conclusions section relevant to this part of the case - sets out two alternative conclusions. First, the ET did not accept that the composition of the selection panel was unreasonable. Second, alternatively, it did not accept that composition impacted on the fairness of the process. The ET then addressed the Claimant’s raising of the grievances, their timing, and how the Respondent might have seen that. It did not, however, stop there. It continues “In any event”, and refers back to its earlier detailed findings of fact. On that basis the ET concluded that there had been no collusion but an independent assessment by all those involved, who were not outnumbered by the one vote shared by Mr Ellory-van Dekker and Ms Mayfield. Given those findings of fact the Claimant cannot (and does not) say the conclusion reached is perverse. But, equally, there is no other error of approach.61. The question of the composition of the panel was raised as an arguable point before the ET, and the ET carefully scrutinised the evidence on that question and considered that issue. It was satisfied that the Claimant’s concerns were unfounded: the composition of the selection panel was neither unreasonable, nor did it impact in any way on the fairness of the selection process. On those findings of fact, there is no proper point raised by this part of the appeal.62. For those reasons I dismiss this appeal.