Appeal No. EAT/306/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8 October 1992

	Before

	SIR DAVID CROOM-JOHNSON DSC VRD PC

	MR A D SCOTT

	MRS P TURNER OBE

MR M J ANDERSON	APPELLANT

SAFETY KLEEN UK LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G McDERMOTT
(OF COUNSEL)
Messrs Waldron & Schofield
Solicitors
25 York Street
Heywood
Lancs OL10 4NN

For the Respondents	MR P CLARK
(OF COUNSEL)
Messrs Douglas-Mann & Co
Solicitors
33 Furnival Street
London EC4A 1JQ

	SIR DAVID CROOM-JOHNSON:  This is an appeal brought on behalf of Mr Anderson from the decision of an Industrial Tribunal given at Manchester on 27 March 1990.  He was dismissed by the respondents, Safety Kleen (UK) Ltd on 22 December 1989, and his complaint to the Industrial Tribunal was that he was unfairly dismissed.  The dismissal was admitted.  

	The grounds the respondents put forward for the dismissal was that Mr Anderson had lost his driving licence through having been breathalysed in circumstances about which  nobody has gone into any detail but which was clearly, and accepted as being, nothing to do with his employment.  The reason given for the dismissal by the respondents was that without a driving licence Mr Anderson was in breach of his contract with them because it required him to have a valid driving licence.

	The facts, perhaps, should be given in a little more detail.  The respondents are a company who provide a cleaning solvent service to the automotive and industrial world.  They have 19 branches nationwide each of which is staffed by a Branch Manager, a Service/Sales staff - which appears to be half a dozen people, drivers and operatives - a part-time Warehouseman and a part-time Secretary.  The object of each branch is to get in new business and service existing businesses and this involves that his staff should drive around to the customers within the branch's area dealing with machinery which requires treatment.

	Mr Anderson first went to work for them in 1984 as one of the sales staff and he remained as such until 1986 when he was promoted Branch Manager.  He was working as the Branch Manager when he was, unfortunately, breathalysed and his licence was taken away for twelve months.
                                                                                                                                                                                                  
	In his original application for work, which was made when he first went for the sales staff, there was a question, among many other, which specifically said:
"Do you possess a valid driver's license?"
and his answer was:
	 "yes"

Have you had any convictions or arrests? - "no"

What position are you applying for? - Service/Representative"
	It was quite clear that without a driving license it would have been quite impossible for him to be a sales representative.  When he was promoted in 1986 as the Branch Manager they introduced a fresh contract of employment for him.  It was a document called "STANDARD

 TERMS OF EMPLOYMENT" paragraph 26 is headed "COMPANY VEHICLE: (Where applicable:

 Sales/Service Reps/Branch Managers).  and it goes on to say:
"The Company will provide you with a van and equipment which will remain the property of the Company at all times and may only be used by you in the performance of your contractual duties.  You are required to ensure that the Company vehicle entrusted to you is maintained in clean, safe and working order, in accordance with the procedures laid down by the Company from time to time."
	Then in paragraph 32 there was:
"RULES FOR ACCIDENTS ETC.See attached Ruling for Accidents involving Company Vehicles driven by Employees."
	That contract was signed by Mr Anderson in August 1986.  Going with that was the long document headed "JOB DESCRIPTION".  A great deal of it can be ignored but paragraph 6 under the heading of "Responsibilities and Authority" said:
"Improving customer relationships through regular scheduled customer visits, along with his sales people."
	There were two matters which had to be decided in the course of this application on the basis of unfair dismissal.  The first was, whether it was part of Mr Anderson's contract that he should have a valid driving license, the relevant contract of course being the one as the Branch Manager.  That was of importance because under Section 57 of the Employment Protection (Consolidation) Act 1978 sub-section (1):
"In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show-

(a)what was the reason (or, if there was more than one, the principal reason) for the dismissal, and
(b)that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."
	The employers said that the reason for the dismissal was the failure to hold a driving license.  Sub-section (2) reads as follows:
"(2)  In subsection (1)(b) the reference to a reason falling within this subsection is a reference to a reason which-

(a)related to the capability of qualifications of the employee for performing work of the kind which he was employed by the employer to do,..."
	Section 57 (4) reads as follows:
"(4) In this section, in relation to an employee-

(a)"capability" means capability assessed by reference to skill, aptitude, health or any other physical or mental quality;
(b)"qualifications" means any degree, diploma or any other academic, technical or professional qualification relevant to the position which the employee held."
	The first question, therefore, is whether the possession of a valid driving license came within either "capability" or "qualifications" for the purposes of meaning that the failure to hold the driving license was a breach of the contract of employment by Mr Anderson.  Dealing with one very tiny matter, the Industrial Tribunal dealt with this on the basis that the failure to have a driving license meant that Mr Anderson did not have the capability for performing his work when, in fact, it really should have been "qualifications".  Having said that, it makes absolutely no difference that the wrong term seems to have been used.

	What happened was, after holding the employment satisfactorily for three years in December 1989, Mr Anderson was disqualified from driving following a breathalyser offense not connected in any way with his job.  On that being notified to the respondents he was immediately suspended while it was decided what had happened to him.  In between his suspension and his actual dismissal he wrote a letter to the Managing Director of the respondent company setting out a number of reasons why he could still do his job even if he did not hold a driving license and putting forward a lot of, understandably, emotional reasons of why he hoped they would not dismiss him from his job in the circumstances.  But, it was clear from the wording of that letter that he did accept that he required a valid driving license for the purposes of his work.

	Having looked at the contractual documents and having considered some of the other reasoning given by the Industrial Tribunal, including the admission in the witness box by Mr Anderson that he required a valid driving license, there really could not be any argument that failure to have driving license did disqualify Mr Anderson from performing his duties under the contract of employment.  That being so, the next part of Section 57 had to be complied which was subsection (3):
"(3)  Where the employer has fulfilled the requirements of subsection (1), - and in this case the employer had - "then, subject to section 58 to 62, the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]"
	It is necessary at this point to read some passages from the Industrial Tribunal's full decision.  Paragraph 5 dealing with the legal aspect of "qualification" or not reads as follows:
	"The applicant tried to contend at first that an ability to drive did not form part of the terms and conditions of his employment.  That was, of course, nonsense.  Although he had not been asked when he was promoted to Manager about his driving license he must have known, as certainly did the respondents, that an ability to drive was a crucial part of his employment as a Branch Manager."
	Pausing there, that is a finding by the Tribunal as to the applicant's knowledge, based partly upon his evidence, but it is also a finding which accords completely with the contractual documents.  Paragraph 6 of the decision reads:
	"When the respondents heard that the applicant had lost his licence he was suspended.  He then wrote a long letter to the respondents, in effect, pleading for mercy and suggesting that the job of Branch Manager could be done without a driving licence and with the assistance of the existing staff at the Branch.  The respondents considered the matter and decided that it would not be appropriate to retain the applicant's employment as a Branch Manager without a driving licence and he was dismissed."
	Paragraph 8 then goes on to deal with the question of whether it was reasonable or  unreasonable to dismiss in the circumstances.  I read most of it:
	"It was suggested that the respondents ought to have seen the applicant and in normal cases we would agree.  In this case, however, the applicant had written a very long letter to the respondents urging in effect what he would urge had there been a meeting.  We are satisfied that the respondents applied their minds properly in the consideration of retaining the applicant and we are satisfied that a reasonable employer in the position the respondents were would have come to the same decision as the respondents did and dismissed the applicant.  There clearly was no other job for him at the Manchester branch. To ask the rest of the staff to shoulder whatever driving burden the applicant would have to undertake would have been impracticable and, no doubt, have caused resentment amongst the other staff.  They would be bound to ask why the applicant should remain and be paid in full as a Branch Manager when a number of his functions were being carried out by them.  The respondents discounted a trial period without a driving licence as they did not consider that it would be workable.  We think that a reasonable employer would have come to the same conclusion.  At the end of the day the applicant has deprived himself through his own folly of an important ingredient for his employment."
	The beginning of paragraph 8 makes reference to the fact that after Mr Anderson had been suspended and before the meeting took place, at which it was decided that dismissal would take place, he did not have an interview with anybody.  His letter, to which reference was made, was written to the Managing Director of the respondent company and indicated that he was in touch with people at the highest level.  There is no question that Mr Anderson was highly regarded by the respondents.  

	He was dismissed on the basis that he was not being dismissed as a disciplinary matter but simply because without a driving licence he was no longer qualified to carry out the Branch Manager's job.  He was invited to reapply for employment as soon as the suspension of his licence had expired and he was also given a glowing testimonial by the respondents indicating what a good employee of the respondents he had been.  But there was the fact that he did not have a meeting at which he would have had an opportunity to put forward his own side of the case as to why the respondents should not dismiss him.  This goes not, of course, to whether or no Section 57 (1) and (2) have been complied with, this all goes to the reasonableness of the decision to dismiss him.

	The point has been taken on behalf of Mr Anderson, very fairly, that dismissing anybody nowadays in a matter like this, particularly a good employee who has, unfortunately, found himself on the wrong side of the law in a matter quite unconnected with his employment, is something which should not happen.  It is put forward as a ground of appeal on the basis that it was a breach of natural justice and that that of itself rendered the dismissal unfair.

	This Tribunal thinks that in the circumstances of this case it certainly should have been that there was a meeting available for Mr Anderson to put his point of view to the employers in order to try to persuade them that in the circumstances of his case there should not be a dismissal.  But the Industrial Tribunal came to the conclusion that while that ought to have been the case, and in normal cases would be, they were satisfied that there was not a breach of natural justice in the exceptional circumstances of this case because of the long letter which Mr Anderson had written to the Managing Director.  This Tribunal certainly agrees with some firmness that it was most regrettable that, in the circumstances of this case, there was no such meeting - common courtesy, at least, did suggest that that should have been done.  At the same time there is a finding by the Industrial Tribunal that this is not a breach of such a character that it should invalidate the dismissal which the company finally decided upon making.

	In all the circumstances of this case, we cannot conclude that the Industrial Tribunal was wrong or that despite the arguments of Mr McDermott, on behalf of Mr Anderson, that the failure to hold such a meeting and such a discussion should invalidate this dismissal and make the decision of the Industrial Tribunal perverse, as was suggested in their notice of appeal.

	The real question here is based on a different point.  In paragraph 8, which we have read at some length, there are a number of important findings of fact come to by the Industrial Tribunal.  They are all going to whether it was practical and possible for the job to be done as Branch Manager when the Branch Manager could not drive a motor car.  These are important findings of fact and it is necessary before allowing this appeal and sending it back for a hearing by another tribunal to see whether those findings of fact can be attacked.

	It seems, as we have been told, that what happened at the earliest stage of the proceedings was that the Industrial Tribunal indicated to Mr Anderson and those who were then representing him, one of whom was not Mr McDermott, that they were not prepared to hear any evidence; that a requirement of a driving licence was an ingredient of the job of Branch Manager.  What was put in the notice of appeal was that right at the outset the Chairman of his own volition said that he was going to refuse to hear evidence as to whether or not a driving licence was necessary for the appellant to do his job.  This was a point that had been argued by Mr Anderson in the long letter to the Managing Director in which he had indicated that as he did not do a great deal of driving, albeit he did some, he could still manage his job with the necessary driving being done by somebody else.

	This would clearly go to reasonableness.  If one takes a case (which is not this case) but supposing it had been a term of the contract of employment of a Branch Manager that he should have a valid driving licence and it turned out, in fact, that the Branch Manager never from one year's end to another drove a motor car at all, it might easily be said that it would be most unreasonable in the circumstances of his losing his licence to dismiss him.  That would be a different case but in this case there was clearly some need for Mr Anderson to do some driving either to go out to the customers or to supervise what the other sales representatives were doing.

	What was sought to be done was to put in, in evidence, a large bundle of documents on behalf of Mr Anderson indicating that although he had to do some driving it really was not that much and it would be possible for the work of the branch to be rearranged in such a way that he could remain as Branch Manager without his driving licence.  This was a bundle of documents which we were told the Industrial Tribunal refused to consider and it is suggested that by shutting out that evidence Mr Anderson was prevented from cross-examining the evidence put forward on behalf of the respondents that they did require a driving licence for the manager.

	This matter seems to have been dealt with in a way in which is not entirely clear but is dealt with in an answer to the notice of appeal complaining that the Chairman of the Tribunal at the outset indicated that they were not going to look at any of these documents.  The Assistant Secretary of the Manchester Industrial Tribunal put in before us a letter which is before us and says:
"I am directed to reply that Mr Bellis [the Chairman] certainly did indicate that a driving licence was an ingredient of the job of Branch Manager.  The members concurred in that decision by nodding their heads.  The applicant's letter to the respondents confirms the fact.  The documentation may well have revealed that over a particular period the Branch Manager may not have used his car much.  The point is, as the applicant acknowledged, that the capability to drive was an integral part of the job as Branch Manager."
	We have looked (with the consent of the parties) de bene esse at the large number of documents and it is quite clear they would have revealed that over a particular period the Branch Manager may not have used his car much.  The Tribunal was well aware of this point.  We do not think that the failure to look at all these documents would have carried the matter very much further than the evidence which was given orally before the Tribunal but that was, in fact, the case.

	The evidence which was given before the Tribunal was that of Mr Jowett who was the member of the respondents who, in fact, wrote the letter of dismissal and which indicated what the reasons for the dismissal were.  The letter had said:

"........... I have taken the opportunity to consider the matter fully, including the possibility of finding you suitable alternative employment.  Unfortunately, this is not possible and I therefore have no option but to terminate your employment.

	As you will appreciate, this is not a disciplinary matter but one in which you are unable to carry out the terms of your Contract of Employment which requires you to possess a current valid driving licence ."
	The letter then goes on to give the formal notice of dismissal.  Paragraph 8 of the decision containing all the findings of fact is quite clearly based upon the oral evidence which was given by Mr Jowett when he gave his evidence.  In reply to that, Mr Anderson himself gave oral evidence which one can only assume was in contradiction of what Mr Jowett had said and probably in support of what he had said in the long letter which he wrote to the Managing Director.  

	The difficulty which is before this Appeal Tribunal is this:  here are a number of findings of fact by the Industrial Tribunal indicating that, in their view, it was reasonable for the dismissal to take effect and giving reasons which support their decision.  Mr McDermott has valiantly tried to show that the lack of documents available for the cross-examination of Mr Jowett would have made a difference.  In that he has, unfortunately, failed to satisfy this Appeal Tribunal.  We do not think that it would have made any difference at all.  

	There are the findings of fact in paragraph 8 and Mr Anderson can only upset them if he can show that the findings of fact are contrary to the evidence which was given - presumably both Mr Anderson and Mr Jowett - or that either there was no evidence to support them or that they were in some way perverse.  Unfortunately, no-one has bespoken before us the Chairman's notes of evidence or, indeed, any notes of the proceedings which took place.  We have no information except some very rough solicitor's notes by the respondents indicating what took place with little bits of evidence here and there but they are quite inadequate to satisfy us that the findings of fact in paragraph 8 of the decision were in any way wrong.  It was, after all, the normal procedure for the applicant himself, if he wished to say that the findings of fact were against the evidence or wrong in law in some way, himself to bespeak the notes of evidence from the Chairman of the Tribunal and apparently no such attempt was made and it certainly was not done.

	In the circumstances we are left with a long series of findings of fact by the Tribunal indicating that the employers have complied with Section 57 (3) and have found that the dismissal was a fair dismissal.  That being so we cannot accede to the submissions which have been put before us and in the circumstances this appeal must be dismissed.