Appeal No. EAT/264/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12th March 1993
	Judgment delivered on 27th April 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MRS M L BOYLE

	MRS M E SUNDERLAND

UB (ROSS YOUNGS) LTD	APPELLANTS

MRS S ELSWORTHY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr M Dulovic
(of Counsel)
Group Legal Department
United Biscuits (UK) Ltd
Church Road
West Drayton
Middlesex UB7 7PR

For the Respondent	Mr J Bowers
(of Counsel)
Messrs Pattinson & Brewer
30 Great James Street
LONDON WC1N 3HA

HIS HONOUR JUDGE HARGROVE OBE QC     By reasons given on 22nd April 1991 the Industrial Tribunal held that the Respondent had been constructively dismissed when she resigned by letter dated 12th November 1990.  She had been employed by the Appellants since 27th April 1981.  In June 1988 Mrs Elsworthy became a training supervisor.  She was transferred to temporary production supervisor on 13th November 1989.  This new post required there to be a shift requirement rotating three shifts as from 13th November 1989 and it was a specific term that in order to meet the changing needs of production the employee might be required to work on alternative shift patterns following consultation and at least two weeks' notice.  Mr Elsworthy was also employed as a supervisor and husband and wife worked upon the same shift.  There was no specific arrangement that this was to be so.

	Mr Gatfield was appointed as a manager and on 15th March 1990 agreed with the Respondent that the temporary post she then held should be extended as a probationary post until the end of June 1990.

	In September 1990 a new shift pattern was devised.  Mr Gatfield wanted a strong supervisor on each shift.  He did not regard either of the Elsworthys as coming within that class.  The new shift pattern which was to last for three months would result in the husband and wife being on different shifts and therefore rarely being able to be together at home.

	This was a matter which disturbed Mrs Elsworthy and a meeting was arranged with both the Elsworthys and Mr Gatfield.  He refused to put them on the same shift and he explained his reasons.  Mrs Elsworthy asked to return to her previous post in training but was told that that job was defunct, there being someone else who had taken over a large part of that work.  Mrs Elsworthy then asked to be made redundant and was informed that there was no redundancy.

	There was a further meeting with management on 28th September 1990.  Mrs Elsworthy and her Trade Union representative were present.  There was a small alteration in the shift pattern for two weeks and a further meeting was arranged for 10th October 1990 and it was agreed that Mrs Elsworthy would consider alternative employment within the organisation.  Such alternative employment would be upon criteria which were laid down and reduced into writing.  A meeting was held between management and the Respondent and her Trade Union adviser on 6th November.  Of the two jobs which were realistically available, Mrs Elsworthy decided that one would require her to deal with an individual with whom she had a personality clash and the other was not for her because it had certain mathematical skills involved.

	On 8th November there were negotiations concerning compensation on resignation, but on 12th November as already indicated, the Respondent resigned.  The letter of resignation stated:
	"Due to the unacceptable position I have been placed in at Ross Youngs of which you have been made aware this leaves me no other option but to tender my resignation as of 9th November 1990."

	The Tribunal, basing its decision on United Bank Ltd. v. Akhtar [1989] IRLR 50, decided that there was a discretion in the employer which should not be exercised so as to render the performance of the employee's obligation impossible and the employer would not without reasonable cause conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between an employer and employee.  The Tribunal continued:
	"... In exercising its discretion to amend the shift pattern in the way it did the respondent had in our view so exercised its discretion as in effect to drive the applicant out of its employment.  Although it might have been physically possible for her to comply with the conditions for a short time we do not think it could be held practically possible for the employee to fulfil the terms of a contract of employment on a permanent basis only at the price of the virtual suspension of his or her martial relationship for the term of his or her employment and indeed of its possible destruction.  Furthermore the imposition of such an intolerable situation must destroy any trust and confidence in the relationship of employer and employee. ..."
Having decided that there had been a dismissal the Tribunal then turned to the provisions of S.57(1) of the       Act in the following manner:
	"We find that the reason for the dismissal was that the respondent wished to re-arrange the shift pattern of the applicant in such manner as to make it impossible for her to meet her obligations under her contract of employment and as to destroy her trust and confidence in the respondent.  Now in giving his evidence to the tribunal which we may say was given with the most praiseworthy frankness and directness Mr Gatfield admitted in cross-examination that he could have exchanged Mr Carlson and Mr Elsworthy and would still have obtained his objective of having at least one comparatively strong supervisor on each shift.  Strangely the matter was not mentioned to him until the day of the hearing and he was unable to give the tribunal any reason why this should not have been done.  We take the view that at the time these matters had to be considered he was harassed by many pressures and considerations and that he took a somewhat blinkered view of what had to be done.  He was very much concentrating on the enhancement of efficiency and was not at that time sufficiently agile in his deliberations to consider this possibility.  It was not put to him by the applicant or her advisers at that time but in our view it was his responsibility as manager so to exercise his discretion in re-arranging the shift pattern of the applicant as not to make it impossible for her to meet her obligations and this he failed to do.  We are accordingly not satisfied that the applicant was dismissed for a substantial reason justifying the dismissal of an employee holding the position which she held within the definition of the section and hold therefore that she was unfairly dismissed."
	
	When one looks at the history of the matter it is not surprising that the Appellants are aggrieved by that finding.  There seems to have been considerable consultation on Mrs Elsworthy's problem, there was trade union involvement, that there was a suggestion of alternative employment and there has been the involvement, not only of Mr Gatfield but of the Personnel Manager and Mr Robertson.  While we are unanimous in the view that upon the facts we would not have made that finding we nevertheless acknowledge that there was evidence from which the Tribunal was entitled to draw those conclusions of fact.  The question for this Court is whether the correct principles of law were utilised by the Tribunal.

	It was contended on behalf of the Appellant that the principle set out in Dryden v. Greater Glasgow Health Board [1992] IRLR 469 at p.471, the court was considering whether an employee can complain of constructive dismissal upon the Akhtar principle where the employers had introduced a "no smoking ban" which was said to press particularly severely upon a smoker.  After considering Akhtar and Woods v. W M Car Services Ltd [1981] IRLR 347, the Court of Appeal held:
	"... that the decision not to interfere was correct.  Each of these cases was concerned with conduct of the employer in dealings with a particular employee.  We are not aware of any case concerned with the present situation, in which what is sought is to treat a change in the rules governing behaviour in the place of work which affects all employees as a repudiatory breach of an implied term in relation to one employee.  There can, in our view, be no doubt that an employer is entitled to make rules for the conduct of employees in their place of work, as he is entitled to give lawful orders, within the scope of the contract; nor can there be any doubt, in our view, that once it has been held that there is no implied term in the contract which entitled an employee to facilities for smoking, a rule against smoking is, in itself, a lawful rule. ..."

	The point made is that shift arrangements were general in nature and that accordingly they should not have been held to be repudiatory.  The Respondent observes that there are limitations upon the Dryden case.  The first is that it was a decision not to interfere with a finding of an Industrial Tribunal upon the facts that there was no repudiatory conduct.  Secondly, that Dryden deals with the introduction of working rules not about changes in terms and conditions of employment where there is a rule affecting the whole work place.  Nor does it deal with the situation where the term introduced bears particularly harshly upon one employee and it is within the power of the employer taking reasonable steps to avoid or mitigate the harshness which affects the particular employee.  We consider that these contentions by the Respondent are well founded.  Moreover, at p.472 of the Dryden decision the Court held:
	"It has been repeatedly been held that the question whether or not there has been repudiatory conduct is one of the particular facts.  In the present case, the Industrial Tribunal has considered the whole facts and circumstances very fully, and, in our view, there is no reason to think that they have erred in their assessment of them or fallen into any error of law. ..."
Upon this aspect we can see no deviation by the Tribunal from the correct course.

	The next major attack upon the Tribunal's finding is that the Tribunal failed to find that the breach of the implied duty of trust and confidence required that the employer's conduct should be without reasonable and proper cause.  It is correct to say that nowhere in the two paragraphs which constitute the decision is there any specific finding.  However the whole tenor of those two paragraphs to imply that the conduct of the employer was neither reasonable nor proper upon the basis that for the expenditure of a little effort and thought the harshness which the decision produced to Mrs Elsworthy could have been avoided.

	At the heart of the decision is the finding that had Mr Gatfield turned his mind to it, he would have realised that by changing the position of an employee called Mr Carlson upon the shift with that of Mr Elsworthy, the problem could have been solved.  Mr Dulovic, on behalf of the Appellants, draws our attention to the fact that in the notes of evidence most of the discussion concerns a Mr Richardson exchanging places upon the shifts and not Mr Carlson.  There is only one mention of Mr Carlson and Mr Dulovic maintains that that is an example of the Chairman by accident writing the wrong name when taking a note of evidence and incorporating that error in the judgment.  Having regard to the care which has obviously been taken in this case to obtain an actual history of events we think that unlikely.

	Attention is drawn by the Appellants to two peculiarities of the Tribunal's decision.  The first is that there is a prolonged history set out in the majority of the paragraphs of the Reasons and the decision itself is virtually completely incorporated in paragraphs 12 and 13.  It is said that the lack of finding of fact is a severe disadvantage, because anyone reading the decision would not know what facts had been accepted and what rejected on the part of the Tribunal.  Moreover, it is contended that one can divine from paragraphs 12 and 13 that the Tribunal has only looked at matters leading up to September and has ignored events in October upon the 10th and 11th and the further meetings on 6th November and 8th November when steps were being taken to try to accommodate Mrs Elsworthy.  Nor it is said did the Tribunal seem to be even handed in relation to the possible solution by swapping persons from one shift to another.  No mention is made of the failure of the Elsworthys and their Trade Union representative to draw such matter to the attention of the employers at any stage until the first day of the hearing.  In our view a Tribunal is entitled to select the evidence upon which it intends to rely to found the conclusions they have reached.   The objections made do not undermine the factual basis upon which this matter has been decided.

	It is therefore with some regret that we find ourselves driven to the conclusion that this appeal fails and must be dismissed.