The Claimant worked for employer A where his contract of employment contained a flexibility clause which meant that he would be expected to work in a variety of different buildings. His employment then transferred to employer B where he worked on just one type of building. His employment transferred again to employer C, the Respondent, and it was under this period of employment that the Respondent expected the Claimant to work in various buildings as he had done with employer A. The Claimant resigned in protest and claimed constructive unfair dismissal which was rejected by the ET. The ET said that the job duties, the terms of the contract of employment and pay were not areas where the Respondent was in breach because the Respondent complied with the contract that it inherited the Claimant on following two TUPE transfers. The Claimant appealed on the basis that since that judgment, he had acquired evidence from employer B which indicated he would be restricted to working on one type of building only.

The EAT dismissed the appeal. The new evidence could not be characterised as a contract or statement of terms and conditions. It could not override the flexibility clause in the contract or provide evidence that the flexibility requirement had been extinguished. The new evidence added little if anything to the material available to the Tribunal and would not have affected the result.

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Appeal No. UKEAT/0097/16/BA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 30 March 2017

Before

THE HONOURABLE LADY WISE

(SITTING ALONE)

GRIFFITHS (APPELLANT)

**

**

GREAT PLACES HOUSING GROUP LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR ALASDAIR HENDERSON (of Counsel)

For the Respondent
MR STEFAN BROCHWICZ-LEWINSKI (of Counsel)
Instructed by:
Fielden Marshall Glover Strutt Solicitors
1 Middle Street
Lancaster
Lancashire
LA1 1JZ

PRACTICE AND PROCEDURE - New evidence on appeal

The Claimant's case of constructive unfair dismissal had been dismissed by the Tribunal. As a first consideration the Tribunal had to determine the Claimant's job title and contractual work duties. He had been transferred by operation of TUPE on two occasions. The only contract specifying his terms and conditions was that emanating from the first of the three employers (the Respondent being the last). It contained a flexibility clause, but the Claimant contended that during his employment with the second employer a variation had been agreed such that he was required to work only on a specified type of property. Subsequent to the hearing the Claimant recovered a spreadsheet sent by the second employer to the Respondent listing employee information for him and other members of the team transferring to the Respondent. The sheet included his job title and place of work, which on the face of it had him listed as a worker on "void" property, the type he said it had been agreed he would be restricted to working on.

The issue on appeal was whether the new evidence produced fulfilled the second criterion of the Ladd v Marshall [1954] 1 WLR 1489 test, namely that it would probably have been an important influence on the result of the case, though it need not be decisive.

The new evidence could not be characterised as a contract or statement of terms and conditions. It could not override the flexibility clause in the contract or provide evidence that the flexibility requirement had been extinguished. Any other position would contradict the authorities of System Floors (UK) Ltd v Daniel [1981] IRLR 475 and Robertson v British Gas Corporation [1983] IRLR 302. The new evidence added little if anything to the material available to the Tribunal and would not have affected the result.

Appeal dismissed.

1. The Claimant commenced employment with a company known as Connaught in about December 2008 as a ground worker. He was transferred by operation of the Transfer of Undertakings (Protection of Employment) Regulations ("TUPE") to a different company, known as Cruden, which supplied employees to work for the Respondent. In August 2012 the Respondent took in house the work carried out by the Claimant and others dealing with "void" properties; namely those falling empty following the departure of a tenant. So, from 13 August 2012 the Claimant was employed by the Respondent following that TUPE transfer.

1. Between May 2003 and June 2004 the Claimant raised concerns and formal grievances in relation to a number of issues, culminating in his resignation, following which he claimed constructive unfair dismissal. His claim was dismissed following a hearing, and a Judgment setting out the reasons for that decision was sent to parties on 12 October 2015. The Claimant sought to appeal that decision, but the appeal is now restricted to the issue of fresh evidence adduced following the EAT Order of 20 July 2016. The Claimant appeared in person before the Tribunal but was represented on appeal by Mr Alasdair Henderson of counsel. The Respondent was represented before the Tribunal by Mr McCluggage of counsel and at the appeal hearing before me by Mr Brochwicz-Lewinski of counsel.

1. The fresh evidence that is the subject of this appeal relates to the issue of the nature and extent of the Claimant's contractual obligations in relation to work duties. In particular, the Claimant contended that his duties with Cruden were restricted to working on void properties as an unskilled ground worker or labourer but his contract with Connaught, which had ultimately transferred to the Respondent, contained a flexibility clause requiring him to carry out other tasks as required. The question was whether that contract had been varied such that it no longer contained the flexibility requirement.

1. The Employment Tribunal had before it a copy letter and attached terms and conditions of the Claimant's employment with Connaught but no documentation from Cruden in relation to terms and conditions. The important findings and conclusions reached by the Tribunal in relation to this issue are the following:

"4. The claimant was employed by a company that I shall refer to as Connaught in either December 2008 or June 2009. A copy letter show [sic] that he was offered a job on 16th June 2009 yet the statement of terms and conditions of employment itself says he started on 4th December 2008. It may be that someone got the dates wrong but that is not at issue. The real issue is what were the job title and duties? It stated that "you are employed as a ground worker and you will report to your line manager. You may also be required to carry out additional or alternative tasks as may from time to time be required of you". That is a fairly standard term in a statement of terms and conditions setting out the title but requiring the employee to carry out additional works as may from time to time be required. In the case of the claimant who had many and varied skills this gave the employer a fairly wide scope to allocate duties to him when he was working for Connaught.

5. Connaught it would appear went out of business and on a date unknown, because no one has told me, the claimant's employment transferred under [TUPE] to a different company known as Cruden.

6. Cruden supplied employees to work for the respondent and on 13th August 2012 the respondent took in house the work carried on by the claimant and others dealing with void properties. This involved going in to a property when one tenant vacated and making it ready for the next tenant. Cruden had already transferred to the respondent other employees dealing with repairs to tenanted properties.

7. The claimant thinks that he may well have signed a different contract with Cruden but he has not produced it and the respondent has only produced the Connaught contract which was passed to them by Cruden at the time the service provision was transferred to them. It seems to me the only finding I can make is that the claimant transferred to the respondent on the terms of the Connaught contract as a ground worker also performing additional or alternative tasks and this is what he did for the respondent. They seem to have designated him as a general worker; he was tasked to work inside or outside doing all sorts of work other than jobs which required a qualified tradesman such as an electrician or a gas engineer to do. He did not do all void work although he did a lot of it. He did repairs also but as Mrs Phillips of the respondent said as far as she was concerned if the claimant was doing repairs they might be the same repairs whether in an empty property as a void worker or in a tenanted property as a repairs worker. In simple terms he was doing his allocated jobs, either in empty or occupied properties and it did not matter to the respondent as long as the claimant did work that he was capable of doing.

8. As to pay the claimant moved from Cruden on the Cruden pay scale which seemed to have been less than Great Places pay scale for the work he was doing. The respondent following the TUPE transfer was not obliged to change the claimant's pay or indeed any of his terms and conditions of employment. The TUPE regulations prevent such action taking place to protect employees particularly where a new employer might want to reduce terms and conditions to match those of existing worker although in this case of course the change would have been in the opposite direction. In summary following the TUPE transfer the claimant was working for the new employer under the terms and conditions of the employer two employers ago and under the salary of the immediately previous employer.

9. I am unable to find that the respondent was in breach of contract by assigning the claimant to the jobs it assigned him to or by paying him at the rate that it paid him because contractually it was doing exactly what it was entitled and indeed supposed to do.

…

20. Against this background has there been a repudiatory breach of contract such as would entitle the claimant to resign? It seems to me that job duties, the terms of the contract of employment and pay were not areas where the respondent was in breach because the respondent complied with the contract that it inherited the claimant on following two TUPE transfers.

…

25. The respondent has accepted it did not cover itself with glory in the way in which it dealt with the claimant and that it could and should have treated the claimant rather better than it did but that being said this does not alter my view as to the outcome of this case."

1. The following affidavits and documents have been produced pursuant to the Order of 20 July 2016: (1) an affidavit of Michelle Swarbrick dated 2 September 2016 with copy email correspondence and spreadsheet including list of operatives of Cruden transferring to the Respondent in 2012; (2) an affidavit of Elizabeth Hopkinson, HR Business Partner for the Respondent, dated 13 September 2016; (3) an affidavit of Carolyn Phillips, an HR Specialist formerly employed by the Respondent, dated 14 September 2016; and (4) an affidavit of Sharon Fowles, HR Specialist responsible for the disclosure of documents in the Claimant's Tribunal proceedings, dated 14 September 2016.

1. In essence, what these affidavits and documents illustrate is that a spreadsheet - detailing amongst other things the names, job titles, office locations, dates of birth, employment start dates and rates of pay of Cruden employees due to transfer to the Respondent under TUPE - was sent electronically by Ms Swarbrick of Cruden to Ms Phillips, then employed by the Respondent, on 29 March 2012. The list included details for the Claimant, describing his job title as "Labourer (Voids Blackpool)" and his office location as "Blackpool". Some other employees on the list are described as "Multi Skilled Operatives", not all of whom have the additional "(Voids …)" appearing after their job title. No other employee on the list has a named town appearing as part of their job title. The subject matter of the email from Ms Swarbrick enclosing the list is "Void Tupe List".

1. The affidavits of Ms Hopkinson, Ms Phillips and Ms Fowles all deal with the issue of the disclosure process that was undertaken in this case but did not result in production of the spreadsheet and the subsequent, more focused search thereafter that brought up the email and attachment. It seems clear that the Claimant took all reasonable steps to recover all relevant documentation prior to the Tribunal hearing. There is nothing more that he could with reasonable diligence have done.

1. Further, no issue arises in relation to the credibility of the documentation produced. It is a spreadsheet prepared by Cruden in connection with the TUPE transfer. The issue is whether the material "would probably have had an important influence on the hearing" (Ladd v Marshall [1954] 1 WLR 1489), and the appeal before me has been restricted to argument about that matter.

1. In written and oral argument Mr Henderson advanced several points in support of his contention that the new material would have had an important although not necessarily decisive influence on the result of the case. These were:

(1) The Tribunal had recorded, and the Respondent accepts, that "it did not cover itself with glory in the way in which it dealt with the claimant and that it could and should have treated the claimant rather better than it did" (paragraph 25).

(2) The Tribunal required as a first consideration to determine what the nature of the contract between the parties was. It was clear from paragraphs 6 and 7 of the Judgment that it was difficult for the Tribunal to ascertain the correct contractual position because of a lack of information. The Tribunal was constrained to find that the Claimant had transferred on the Connaught terms and conditions in the absence of any other documentation, even though it was accepted that the Claimant did a lot of voids work and the team of which he was part had transferred to the Respondent as a specific voids property team.

(3) The new evidence, whilst not an explicit contract of employment, was said to be a summary of the terms and conditions under which the Claimant and other relevant employees were working as understood by Cruden. The document contained almost everything that one would expect to see in a contract of employment. The spreadsheet summary was more persuasive evidence than anything that the Tribunal had before it at the hearing in support of the Claimant's case that his terms and conditions had been amended and were then breached by the Respondent. In rebuttal to a point to be raised by the Respondent, the organisational chart that had been before the Tribunal was not nearly as persuasive as the spreadsheet, emanating as it did from the Respondent as opposed to Cruden. In any event, it did not give the Claimant's job title in the context of a summary of his terms and conditions.

(4) Further, the new documentation gives the Claimant's title as "Labourer (Voids Blackpool)" and his location as "Blackpool" rather than "Northwest". This was entirely consistent with the Claimant's account that whilst working for Cruden his terms and conditions were changed such that he worked exclusively on void properties in one area and was no longer required to do other tasks or travel further afield. Job titles were important at Cruden. This was evidenced by some employees having "Voids" in their title and some not. The Respondent's approach was different and used titles of "Multi Skilled Operative", "Labourer", and "Ground Worker" as interchangeable. The Claimant and his team should have transferred to the Respondent on the same basis as appeared in Cruden's spreadsheet.

1. Mr Henderson submitted that the "important influence" threshold was met in this case. The new evidence supported the Claimant's account of the nature of his role on transfer to the Respondent, a key issue that was decided in the Respondent's favour. He accepted that a statement of terms and conditions cannot override a contract but argued that the new document was essential in understanding what the terms and the conditions of the contract meant in practice.

1. Under reference to Land Securities Trillium Ltd v Thornley [2005] IRLR 765, paragraph 44, he contended that with this new material the Tribunal could do what was found to be permissible in that case, namely consider the duties in the job description by reference to what the employee had in fact been doing. Mr Henderson also sought to advance an argument that the flexibility clause could not be open ended as illustrated by the cases discussed in Thornley, particularly at paragraphs 38, 40 and 41.

1. For the Respondent, Mr Brochwicz-Lewinski submitted that the spreadsheet now produced was of little, if any, value on the material issue and that the Tribunal had better evidence before it on the point in the form of the Respondent's organisational chart post-transfer and the Claimant's own witness statement.

1. The Tribunal had found as a fact that the Connaught contract contained a flexibility clause. Critically, it had also found that the contract passed to the Respondent by Cruden was that Connaught contract. The issue was whether there was evidence that the flexibility clause had been somehow varied by Cruden such that the Respondent was not entitled to ask him to do non-voids work. As the Claimant had transferred to the Respondent on the Connaught terms, there was no breach of contract involved in a requirement that he undertake jobs and properties that were not voids.

1. Mr Brochwicz-Lewinski contended that the "important influence" test in Ladd v Marshall sets a high threshold. The spreadsheet now produced was not a contractual document, being neither a statement of terms and conditions nor a revised contract of employment. The Claimant's position that a revised job title on a TUPE spreadsheet could somehow override a flexibility clause in a contract of employment was said to be fanciful. That clause had not been varied or deleted, and there was no evidence or finding that there had been a variation of the contract. The new document was not even of the status of a statutory statement, and even a statutory statement cannot override the terms of a contract of employment (Robertson v British Gas Corporation [1983] IRLR 302). Further, the affidavit of Ms Phillips at paragraphs 6 to 9 properly describes the spreadsheet as containing information about employees being transferred. Her understanding was that a job title did not limit the precise work the men could be asked to do.

1. The Claimant's case before the Tribunal was that there had been a "breach of terms and conditions in relation to his role", not that the flexibility clause was applied in a way that changed the very job he had been employed to do. In reaching its decision, the Tribunal had evidence about the Claimant's complaints that he was engaging in a wide range of duties, skilled and unskilled, and in occupied properties. The cases referred to in Thornley were accordingly not in point. In any event, any attempt to advance such an argument would require to accept the existence of the flexibility clause, the very subject of the appeal. This case was not and could not be about the way in which the flexibility clause was applied.

1. The Respondent's organisational chart, which was before the Tribunal, together with the Claimant's own witness statement both made the point about his being a void operative. Accordingly, the spreadsheet added nothing to the issues that had been examined exhaustively at the hearing. The voids issue had been long overtaken by other events by the time of the Claimant's resignation. His work diaries showed that the amount of work he carried out on void properties had reduced some time prior to his resignation. He had never objected to doing some work on void properties for the Respondent, something that supported a contention that he was contractually obliged to do so. The spreadsheet put the position no higher for the Claimant than the information that was before the Tribunal, and so the appeal must fail.

1. This appeal now raises one narrow issue, and that is whether the second of the three criteria for fresh evidence as set out in Ladd v Marshall is satisfied. That second criterion is that the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive.

1. The new evidence relates to the basic terms of the Claimant's employment as transferred from Cruden to the Respondent. The first and obvious point is that the only contract of employment available both before the Tribunal and at this stage is the letter of 16 June 2009 with terms and conditions attached issued to the Claimant by Connaught. It is not in dispute that he transferred on those terms and conditions to Cruden. The Tribunal's findings were based on there being no different contract with Cruden than that in existence with Connaught. The Claimant thought that he might well have signed a different contract with Cruden, but no new contract has been recovered even now. That is hardly surprising, given that it was the Connaught contract that was passed to the Respondent when the Claimant was transferred by Cruden.

1. The importance or otherwise to be attached to the spreadsheet now available depends on whether it can be characterised as a variation to the earlier contract. There is authority confirming in principle that the written contract is not the sole permissible evidence of a contract and its terms (System Floors (UK) Ltd v Daniel [1981] IRLR 475). However, nothing short of the contract itself is conclusive evidence of its terms. In my view, while the spreadsheet in this case would be an admissible adminicle of evidence, it cannot replace or override the express terms of the only available contract. Any other position would contradict the decision of the Court of Appeal in Robertson v British Gas Corporation [1983] IRLR 302 that even a statutory statement could not override the terms of a contract of employment. In that case, Ackner LJ cited with approval the following passage from Daniel, where the then EAT President, Browne-Wilkinson J, confirmed that:

"… the status of the statutory statement is this. It provides very strong prima facie evidence of what were the terms of the contract between the parties, but does not constitute a written contract between the parties. Nor are the statements of the terms finally conclusive: at most, they place a heavy burden on the employer to show that the actual terms of contract are different from those which he has set out in the statutory statement."

1. Applying that to the facts of this case, it is clear that the spreadsheet cannot be afforded even the status of a statutory statement. It was not created at the time the contract was entered into but some years later and for an entirely different purpose. It is not a statement of terms and conditions. At best it could provide prima facie evidence of a change in job title, i.e. from ground worker to labourer, and of a category of employment, namely as part of a voids team or as a voids operative in Blackpool. What it cannot do, in my opinion, is provide evidence that the flexibility requirement imposed by Connaught was somehow extinguished. A job title "Labourer (Voids Blackpool)", as opposed to "Ground Worker", would be important only if there was a meaningful distinction between those two roles. More significantly, a reference in parentheses to "Voids" and "Blackpool" is insufficient to support a contention that the Claimant's work was restricted to void properties. The spreadsheet is silent as to any requirement to be flexible, militating against its force as important evidence of a variation of that requirement.

1. Furthermore, it is clear from the paperwork that was before the Tribunal that the Claimant was always delineated as part of the voids team. That was the position both at Cruden and with the Respondent. There is nothing in this document that would permit interference with the crucial finding that the Claimant transferred to the Respondent (Judgment, paragraph 7):

"7. … on the terms of the Connaught contract as a ground worker also performing additional or alternative tasks and this is what he did for the respondent. … He did not do all void work although he did a lot of it. …"

1. Accordingly, despite the eloquent presentation of his argument by Mr Henderson, I have reached the conclusion that on balance the new evidence would not have an influence, far less an important influence, on the Tribunal's findings and accordingly no bearing on the result of this case. The document, while listing some workers with the addition of the word "Voids" and others not, is merely a sheet used to narrate useful information about all of those in the voids team for the purpose of a TUPE transfer. There is nothing in the spreadsheet to support a contention that the term "Voids" appears against those workers who are not required to work anywhere other than in void properties. In any event, the Claimant continued to be described as working on voids after transfer to the Respondent. That did not preclude his working on some properties that were not voids; the nature of the work was the same, but sometimes the properties were not empty.

1. The new evidence does not support the Claimant's position before the Tribunal that he thought he had signed a different contract with Cruden. It adds little to the Claimant's case, which was always that the Respondent had accepted him as a voids operative initially but then changed his role. His witness statement before the Tribunal stated in terms:

"… My continuity of role and duties since TUPE as a void operative was never question [sic], challenged or seriously disrupted from between the dates of 13th August 2012 and 26th April 2013 …"

1. The Tribunal will have taken that evidence into account, together with the Respondent's organisational chart. However, it reached the conclusion, as it was bound to do, that the contractual obligations of the Claimant were as stated in the only terms and conditions that had ever existed, namely those passing from Connaught to Cruden and from Cruden to the Respondent. In my view, the reference to "the only finding I can make" at paragraph 7 of the Judgment in this context is clearly a reference to the absence of any different contract having been signed by the Claimant, notwithstanding his stated position.

1. Two further points: first, while the Respondent conceded that it could have acted more appropriately in its dealings with the Claimant, that was not in the context of the scope of his duties as such but in the way that they had approached his grievances, at least procedurally; and secondly, this was not a case involving the permissible scope of the flexibility requirement before the Tribunal, and it cannot turn into such a case on appeal.

1. The Tribunal was tasked, as a first consideration, with identifying the Claimant's job title and duties. It did so on the basis of the available evidence of the Claimant's contractual terms. The new evidence could not alter the findings made on that issue. Accordingly, the "important influence" criterion in Ladd v Marshall is not met, and the appeal is dismissed.