The claimant had been dismissed for gross misconduct, that misconduct being her failure to comply with a reasonable instruction given by her employers. The ET found the dismissal to have been both procedurally and substantively fair. The claimant appealed on the basis that the ET had failed to find as a fact what the relevant instruction was that the claimant had been given, and without making that finding, the ET could not properly have determined whether the instruction was reasonable or not.

The EAT rejected the appeal. The ET had found as a fact what the instruction was and had made no error in reviewing the employer's decision that it was a reasonable instruction, non-compliance with which warranted dismissal.
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Appeal No. UKEAT/0573/11/ZT

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 13 April 2012

Before

MR RECORDER LUBA QC, MR D EVANS CBE, MR J MALLENDER

MS O D HILL (APPELLANT)

ARRIVA SOUTHERN COUNTIES LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS SUSAN CHAN (of Counsel)

Bar Pro Bono Unit

For the Respondent
MR KEN HERSEY (Representative)

KHA Managing Change Consultants
Curis Cottage
The Street
Ripe
East Sussex
BN8 6AP

UNFAIR DISMISSAL – Reasonableness of dismissal

Unfair dismissal claim. Employer's case that dismissal was for gross misconduct (failure to comply with reasonable instruction).

Employment Tribunal rejected Claimant's claim. Appeal brought on basis that the Tribunal's reasons do not identify precisely what the instruction was. Without that, it could not properly determine whether it was 'reasonable'.

The Tribunal had found as a fact what the instruction was and had made no error in reviewing employer's decision that it was a reasonable instruction, non-compliance with which warranted dismissal.

1. This is a Claimant's appeal from a Judgment of the Employment Tribunal sitting at Ashford in Kent by which it dismissed all the claims that the Claimant, Mrs Hill, had brought before the Employment Tribunals Service arising out of the termination of her employment by the Respondent employer. The only one of those claims of relevance to the present appeal is the claim made of unfair dismissal contrary to the Employment Rights Act 1996 (ERA), section 98. It was common ground that the Claimant had been dismissed by her employer. The Employment Tribunal accepted the employer's case that the Claimant had been dismissed for gross misconduct; that misconduct was her failure to comply with a reasonable instruction given by her employers. The Employment Tribunal found that the dismissal had been both procedurally and substantively fair. The single ground of appeal contained in an amended Notice of Appeal is that the Employment Tribunal failed to find as a fact what the relevant instruction was that the Claimant had been given. Without making that finding, it is said in the ground of appeal, the Employment Tribunal could not have properly determined whether the instruction was a reasonable instruction to do something within the terms of her employment or was, as the Claimant asserted, an unreasonable instruction to do something outwith those terms. By its Answer to the appeal the Respondent asserts that the Employment Tribunal did make the requisite findings of fact and that its decision on the particular point is clear.

1. The Claimant was employed by the Respondent from April 2006 at its bus depot at Northfleet. Her job title was "Store Person". As the Employment Tribunal recorded (paragraph 16), her job description included the following passages:

"Be fully conversant with the Spear and Iproc systems.

To carry out any reasonable request from supervisory levels in line with business requirements."

1. The Spear system mentioned in that extract from the job description was a software tool used in every bus garage where the Respondent carried out its bus maintenance procedures. It was used by the Claimant herself in the course of her ordinary employment; in particular, she used it for recording what items were issued by her from her store to the maintenance staff. Her role is that of storekeeper for these purposes, and her position in the arrangements for the Spear software, is helpfully shown in a manual printout by way of a pictogram under the heading "Express Issue Overview", to which we were taken at page 105 of our bundle.

1. In 2009 a Mr Moyo of the Respondent was engaged on the process of reviewing and improving the Spear computer system. Having completed the task, he ran a programme of training in the revised system based on a manual that he devised. The training was offered for both engineering managers and for store operatives such as the Claimant. The Employment Tribunal found that by 5 February 2010 the Claimant had been told by her managers that she would be required to carry out the following tasks using the Spear system:

"Raise work orders, add employee names and hours to the system and then save and close the work order."

1. That finding, contained in paragraph 26 of the Employment Tribunal's Judgment, was, as the Tribunal recorded, based on the Claimant's own evidence. It is taken almost verbatim from her witness statement, made in the Employment Tribunal proceedings, at paragraph 29. On 9 February 2010 Mr Moyo provided training to the Claimant on the new revised Spear system. Following her training she wrote on the same day to her manager that:

"I believe it is necessary to put in writing that it is not my duty to prepare work order, input employees hours or closing of work orders.

This is outside the scope of my contract […]."

1. The following day her manager responded that there was no change in the contract of employment and that what was occurring was simply "a change in the process". He urged her to, "implement the system for which you received training yesterday". In reply the Claimant repeated her view that what she was being instructed to do was outside the scope of her employment. She was thereupon suspended pending an investigation of that point. The matter was investigated by a Ms Wratten. Ms Wratten's report was presented to a Mr Shuttleworth of the Respondent, who conducted a disciplinary meeting on 18 March 2010. He formed the view that what was being asked of the Claimant was not a change in the contract of employment but was rather, as he expressed it in a letter of the same date following the disciplinary meeting, "purely a change of process to enable us to improve our business […]". By the same letter the Claimant was summarily dismissed for refusal to follow a "reasonable instruction".

1. An appeal against that decision was heard by a Mr Wykes of the Respondent. He concluded, in a letter dated 19 April 2010, that the Claimant had indeed, "failed to carry out a reasonable instruction". A final appeal was considered by a Mr Barraclough of the Respondent. He rejected the appeal in a letter dated 26 May 2010, which referred to what the Claimant was being instructed to do as, "simply a change in procedure to enable engineering costs to be more accurately managed", and that the new work was, "simply recording hours of work carried out on vehicle types", amounting to "a minor change" to procedures.

1. Having set out an account of the relevant history from which the short summary we have just given is drawn, the Employment Tribunal made these three findings:

"40. The Tribunal found that the reason for dismissal was, as stated by Mr Shuttleworth, Mr Wykes and Mr Barraclough, gross misconduct in refusing to carry out a reasonable instruction."

1. Secondly, it found that (paragraph 42):

"The Respondent invested substantial time and effort in three lengthy meetings, provided repeated explanations of the requirements of the Claimant's duties following her training, and made numerous efforts to persuade her to withdraw her refusal and agree to work the new procedures. The Respondent's dismissing and appeals managers went to considerable lengths to avoid the dismissal."

1. Thirdly, the Tribunal found at paragraph 43 of their Judgment:

"The reason for dismissal and refusal of the appeals was wholly and solely based upon the Claimant's refusal to carry out a reasonable instruction […]."

1. As to the Claimant's case, as advanced before it by her representative, the Employment Tribunal said this (paragraph 52):

"The Tribunal found that the Claimant and the managers were fully aware of the duty requirements of the new procedures. They were explained to the Claimant on 5 February 2010 and in detail in Mr McGuinness's letters, and at the disciplinary meeting and at the appeal meetings."

1. At paragraph 54 the Tribunal say this:

"Even with the Claimant's unblemished disciplinary record, there was no mitigation for a refusal to carry out a reasonable instruction which had been applied nationwide, complied with by all other employees and for which training had been specifically provided and which the Claimant had successfully undertaken."

1. In those circumstances the Tribunal found the dismissal to have been by reason of gross misconduct and to have been substantively and procedurally fair.

1. There is a single, amended ground of appeal expressed in four short sub paragraphs, which collapse to a single proposition: that is, that the Employment Tribunal failed to find as a fact what was the precise management instruction that the Claimant had refused to carry out. Without such a finding, it is said by Ms Chan in forceful submissions, it could not properly have discharged its statutory function in determining whether the Claimant had been fairly or unfairly dismissed.

1. The Respondent does not deny that in the particular circumstances of this case such a finding – that is to say, identifying the instruction given – was a necessary prerequisite of the Employment Tribunal's Judgment. Rather, the Respondent asserts, through its representative, Mr Hersey, that the Employment Tribunal did make the necessary finding as to what that instruction was in the very passages we have extracted above.

1. This, then, is a "Reasons" challenge. The question is whether, to adopt the familiar Judgment of Bingham LJ as he then was, in the case of Meek v City of Birmingham District Council [1987] IRLR 250 at paragraph 8: whether the Judgment of the Employment Tribunal contained:

"[…] an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions, and a statement of the Reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises […]."

1. At the outset of her submissions before us Ms Chan accepted that the Employment Tribunal had made a finding as to the terms of the relevant instruction given. We repeat the Employment Tribunal's finding, taken from paragraph 26 of its Judgment, that the instruction was to carry out the following tasks:

"Raise work orders, add employee names and hours to the system and then save and close the work order."

1. Ms Chan's essential submission before us was that the Employment Tribunal had failed to grasp and make a finding of fact on what she described as the critical issue; that is to say, the meaning of the opening words, "Raise work orders". There was no controversy, she submitted, as to the remaining parts of the instruction, because the Claimant had, albeit reluctantly and contrary to her initial position, been prepared to comply with those parts. Ms Chan submitted that in the context of the instant case the instruction to "Raise work orders" could mean either one of two things. It could mean that the Claimant would be expected in future to fill in on the Spear system the computer template for a works order using information already set out by engineering managers on a job card or other worksheet in manuscript. Alternatively, it could mean that the Claimant was in future being asked to actually raise or create jobs in the sense of identifying what needed to be done to particular vehicles and when, which operatives should undertake those functions, and to plan at least a week ahead so that the maintenance and repair of vehicles would be undertaken in a planned way.

1. The Claimant certainly had the capability to undertake the function in the former sense. Indeed, she had shown herself as adept at using the Spear system in that way during her training with Mr Moyo, and she had done that work itself when, from time to time, work orders had not been raised on her system prior to her being required to issue particular items from her stores in respect of particular pieces of work; but the Claimant could not be required within the proper scope of her employment, submitted Ms Chan, to take on the alternative meaning of the function of raising work orders that we have just set out. Her submission was that the Employment Tribunal failed to determine which of these two potential meanings was conveyed by the employer's instruction. If, as the Claimant believed, it was the latter, then the Employment Tribunal was bound to hold that the instruction was outwith the scope of her employment and unreasonable. But Ms Chan's subsidiary submission was that even if the words "Raise work orders" were understood in the former or narrower sense, nevertheless that would represent a new task for the Claimant. It would be an onerous and unreasonable task for the Claimant to undertake given the number of vehicles and the number of work orders relating to them at her particular depot. Ms Chan's case, in a nutshell, was that the Employment Tribunal could not properly determine the complaint of unfair dismissal without having found, as a fact, the sense in which the instruction to "Raise work orders" was given.

1. For the Respondent, Mr Hersey relied on the terms of the Employment Tribunal's Judgment itself, and in particular on the passages we have already read. Additionally, he drew our attention to paragraph 46 of the Tribunal's Judgment, which, he submits, contains a clear finding in the following terms:

"The Claimant had refused to carry out reasonably requested duties in accordance with a company wide instruction, following new procedures which were complied with by all other store operatives."

1. He acknowledged that the Claimant had been advancing a case before the Tribunal and before her employers that she understood the instruction to have been given in the wider sense; but, submitted Mr Hersey, the Employment Tribunal must be taken to have rejected that as misconceived. The Employment Tribunal must, he submitted, have been taken to have accepted that not only was the task within the more limited sense of raising a work order – that is to say, by completing a template from pre existing information – but that such an instruction was reasonable to give a store person operating a computer software programme in the course of her work.

1. We are unanimously satisfied that this particular Judgment by this Employment Tribunal was Meek compliant. It did expressly identify the management instruction for non compliance with which the Claimant was dismissed. We have already set out the Tribunal's finding as to the express terms of that instruction twice in this Judgment. We accept that the Employment Tribunal could in terms have set out the possible alternative meanings of the words used, and expressly said which of those meanings it preferred and why, but one can clearly see from its Judgment that it rejected the Claimant's case that the instruction would involve an unreasonable step beyond her job description, which would have been manifestly an essential corollary of the words having the broader meaning. It found that the same instruction had been given nationwide across all of the Respondent's operations, staff training had been provided, and that the instruction had been complied with by "all other employees".

1. It is, we consider, inconceivable that the Respondent was requiring all its store operatives to take over the function of planning and administering maintenance in its depots, which would have been the necessary consequence of the wider alternative meaning of the instruction. In our judgment, the Employment Tribunal did not need to spell out the impossibility, in context, of reasonably construing the instruction in that way. It expressly rejected the Claimant's case that she was being singled out for special adverse treatment. Taken as a whole, it is clear from its Judgment that the Employment Tribunal was proceeding on the basis of the more limited sense of raising work orders on this specific computer system. Its Judgment set out that the Claimant was required to operate that system and comply with reasonable instructions about it. It expressly and repeatedly adjudged the instruction given to have been a reasonable one.

1. In those circumstances, despite the valiant and persistent submissions of Ms Chan, we are unable to say that the reasons given by this Employment Tribunal were so deficient as to be erroneous in law. Both parties can readily see from its Judgment that the Employment Tribunal rejected this claim of unfair dismissal because it found (1) that the Claimant had been given a particular instruction, (2) that that instruction had been a reasonable instruction, (3) that her failure to comply had amounted to gross misconduct, (4) that dismissal was in all the circumstances a reasonable response to that refusal, and (5) that the procedure relating to the dismissal had been fair. In our judgment, that sufficiently discharges the Employment Tribunal's obligations. Although the Employment Tribunal might have gone even further than it did in developing its reasons, that possibility does not, in our judgment, render this decision erroneous in law.

1. For all those reasons, our judgment is, unanimously, that this appeal shall be dismissed.