Appeal No. EAT/283/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 29 June 1993

	Before

	THE HONOURABLE MR JUSTICE TUCKEY

	MISS A MACKIE OBE

	MRS P TURNER OBE

HOME SHOPPING NETWORK (UK) LTD T/A HOME EXPRESS	APPELLANTS

MR R KENNELL	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R BARDLEY
(OF COUNSEL)
Mr Newall
Company Solicitor
	Littlewood Organisation Plc
	100 Oldhall Street
	Liverpool 
	L70 1AB

For the Respondent	MR D BROWN
(OF COUNSEL)
USDAW
188 Wilmslow Road
Fallowfield
Manchester
M14 6LJ

	MR JUSTICE TUCKEY:  Following a hearing before the Industrial Tribunal sitting in Brighton, the Tribunal concluded that the Respondent to this appeal, Mr Kennell, was unfairly dismissed by the Appellants, Home Express, and they adjourned the question of remedy.

	The dismissal of Mr Kennel followed his disqualification from driving for a period of 15 months imposed upon him for an offence of driving with excess alcohol in his blood.  The Appellants' case was that it was a term of his Contract of Employment with them that he should have a current driving licence and that the loss of his licence entitled them to dismiss him.  Alternatively, if it were not a term of his contract, the loss of his licence was another substantial reason which justified dismissal.

	The Industrial Tribunal disagreed with those contentions and so found that the Appellants had failed to show that the dismissal was for one of the reasons set out in Section 57(1)(b) of the 1978 Act.  They also held that there had been procedural unfairness in his dismissal and would therefore have found in his favour, if necessary, on that ground also.

	The facts which they found as extracted from their Reasons are that Mr Kennell was employed on 20 November 1989 by Federal Express Parcels Services Ltd as a driver at their parcel services depot at Gatwick.  The business of Federal Express had been transferred to the Appellants, Home Express, and there had been continuity of employment.  Home Express deliver parcels for the Littlewoods organisation in mainland Britain.

	There was no dispute that when initially employed as a driver Mr Kennell's employment was subject to an express term that in the event of his being disqualified from driving he would not be permitted to continue employment as a driver.  After a year or so of working as a driver Mr Kennell was offered redundancy or demotion to the level of a GW3 (that is to say General Worker) by the Appellants or their predecessors.  There was a hiatus following this offer during which Mr Kennell continued to work as a driver but after 6 months he ceased to drive as part of his normal duties.

	In October 1991 the GW3 grade which applied to Mr Kennell was reclassified as MDM2 the practical effect of which was that he became entitled to holiday pay and sickness as if he were a driver but in all other respects his employment continued as a GW3.  No new job description was prepared or offered to the Applicant on his change from driver to GW3 or MDM2.  

	The conviction occurred in July 1992.  Before his Court appearance Mr Kennell had advised his manager that he was due to appear in Court.  He volunteered the information and said in evidence that he was not expecting to be dismissed.  That was not to be however, because his line manager at a meeting which Mr Kennell attended alone, dismissed him on 22 July 1992.  It is that dismissal which gave rise to these proceedings.

	He appealed against that decision and that appeal was heard on 1 December 1992 by the Appellants' regional manager.  At that hearing Mr Kennell was accompanied by two union representatives.  The decision to dismiss was confirmed and subsequently Mr Kennell went through the last stage of the appeal procedure which involved a hearing before a Mr Gunton, on 3 November 1992.  Again the decision to dismiss was confirmed.

	On those facts the conclusions which the Industrial Tribunal reached were as follows.  They said 

		"Whilst we accept that the original Contract of Employment made it quite clear to the Applicant that he would have his Contract of Employment terminated were he to lose his Driving Licence, we do not accept that term of his employment was in force at the date of his dismissal...  We regard the change from Driver to General Worker 3 as a material change in Job Description which should have been accompanied by a full Job Description making it quite clear, if it was so desired by the Respondents, that the necessity to have a Driving Licence was still a term of the Contract of Employment.  That was not done."

		For an employer to rely upon a breach by the employee of a term of a Contract of Employment, he must show that the term in question has clearly been established and is unequivocal.  We are not satisfied that such a term existed and the absence of a Driving Licence being the only reason for the dismissal, it follows therefore that the dismissal was unfair."

They went on to add that had they been satisfied that the requirement to have a driving licence was a term of the current Contract of Employment, they would have held, subject to the procedural point, that the loss of the driving licence amounted to some other substantial reason justifying dismissal.

	Dealing with the procedural irregularity, they recited the relevant part of the Disciplinary Procedure which formed part of Mr Kennell's Contract of Employment which provided that "The employee will be given every opportunity to state his case and present the facts for consideration by the Manager.  He will also be advised of his right to be accompanied by a representative or colleague of his choice".   At the meeting with his line manager Mr Kennell had been given no opportunity to have with him a representative or colleague of his choice.  The Tribunal concluded:

		"We consider this to be a fundamental flaw in the procedure and one which could only be cured on an Appeal if the Appeal was a full re-hearing and if the point in question i.e. the failure to advise the Applicant of his rights, was addressed and dealt with on Appeal...  Clearly the point was not dealt with on either the first or the second Appeal, furthermore we find the notes or absence of notes of the subsequent Appeals totally unsatisfactory.  So unsatisfactory indeed that we cannot be certain that these Appeals constituted re-hearings and/or that all matters that were relevant were addressed at them.  For example, it does not appear that the important question of whether or not there should be any redeployment within the Respondent Company was fully considered and on the evidence we were not satisfied that very much, if any, effort had in fact been made to look for any alternative employment for the Applicant."

	
The Appellants contend that having regard to certain findings of fact made by the Tribunal they were bound to conclude as a matter of law that it was a term of Mr Kennell's Contract of Employment that he should have a current driving licence.  Alternatively, it is contended that if they were not bound to make that finding as a matter of law, it was a perverse finding of fact for them not to do so.

	The facts which are said to have compelled the conclusion either as a matter of law or as a matter of fact that there was such a term in the contract are that save during disputes as to the terms and conditions of employment MDM2 employees drove vehicles when requested, that the existence of a driving licence was regarded as being highly desirable for an MDM2 employee, and that the Appellants carried out periodic verification exercises to ensure that MDM2 employees had driving licences. 

	We are quite unable to accept that those findings of fact compelled a finding as a matter of law that the Appellants' Contract of Employment was subject to such a term.  We think that the existence or no of a term of a contract in circumstances such as these was a matter of fact for the fact finding Tribunal in this case and so no question of law arises.  We are unable to accept that the finding made was perverse, having regard to the test of perversity which has been variously stated and helpfully illuminated in the recent decision of the EAT in East Berkshire Health Authority v Matadeen [1992] ICR 723.  

	The highest it was put, and could have been put, was that it was desirable for MDM2 employees to have a current driving licence.  It provided the employers with a degree of flexibility if they did have licences but desirability and flexibility falls a long way short of a contractual term.  As the Tribunal rightly pointed out, with the substantial variation of Mr Kennell's terms of employment when he accepted demotion a the substantial loss of pay, it was incumbent on the Appellants if they wished to maintain a term to this effect to his Contract of Employment to issue the necessary job description and particulars of employment, to put that beyond doubt.  The fact that they failed to do so and failed therefore to establish this term, is entirely of their own making.

	Next the Tribunal are criticised because having rejected the contractual term point they said "it follows therefore that the dismissal was unfair".  It is argued that they failed to consider whether even though the requirement for a licence fell short of a contractual term, the loss of the licence was nevertheless a substantial reason which could justify dismissal.  

	We have already referred to the relevant passages in the Reasons and are quite unable to accept that this point was not considered by the Tribunal.  It is apparent from their reasoning that they did not regard the presence or absence of a current driving licence as being so essential to this employee's continuing employment as to justify his dismissal if he lost it.  They make it clear in our view that that was a point that they considered because they did specifically say that had they found that it was a term of contract, then that would have been a different matter and it would have amounted to a substantial reason.  As it was not a term of the contract the highest it could be put was that it was a convenience to the employers, and this did not amount to a substantial reason.

	We turn then to the question of procedural unfairness where an attack is made on the findings of the Tribunal in a number of ways.  First of all it is said that they could not have reached the conclusion that there was procedural unfairness here.  The reason for their doing so is stated.  We have already referred to it.  It could not have been controverted.  We are therefore quite unable to accept the submission that there was no basis for the finding.  At the end of the day, this was of course a matter of fact for the Industrial Tribunal.

	The next submission is that any unfairness that there was was cured by the appellate process to which we have referred.  So far as that is concerned it is said that the Tribunal erred in two ways (1) It misdirected itself as to what it should have been looking for to see whether it had been cured and (2) As to the standard of proof to be applied in deciding whether it had been cured.

	The first submission is founded upon the decision of the Court of Appeal in Sartor v P&O European Ferries (Felixstowe) Ltd [1992] IRLR 271 where the Court of Appeal had, among other things, to consider this question of whether a defect can be cured by subsequent appeal procedure.  It is submitted on behalf of the Appellants that this case establishes that all an employer needs to show in circumstances such as these is that the aggrieved party had the opportunity to appeal where the matter could be put right.  	

	We do not accept that that is the effect of the Sartor decision.  The Tribunal here relied on the case of Byrne v BOC [1992] IRLR 505.  In his Judgment in that case Mr Justice Knox, having premised his observations by taking a case where the disciplinary hearing, that is to say the first stage of the process, is seriously flawed, went on to say:    

		"Where that happens it is essential, if the appellate process is to be properly treated as establishing fairness overall, for it to be able to stand on its merits as conferring upon the employee all the rights which the contract of employment is intended to protect, notably proper notice of the complaint, and a full opportunity of stating the employee's case.  That was not satisfied in Whitbread & Co plc v Mills because what happened at the appellate stage was that the employee's representative made a series of points a to why the employee should not have been dismissed and all the management did was say they would listen.  As Wood J said at p.509, 56:

		`...this was not a rehearing in any sense of the word.  It was simply a review of what had already occurred with further opportunity to make representations.'"

	That, it seems to us, usefully defines what it is that the Tribunal must be looking for when considering whether a procedural defect has been cured.  In the passage to which we have referred, the Tribunal here approached the question which they had to answer with those observations in mind.  Their approach in this respect cannot in our view be faulted.  Nor can any importance be attached to the use of their word "certain" in the Reasons to indicate that they applied some incorrect standard of proof so far as the Respondents are concerned.  If one reads the passage as a whole it is quite clear in our view that they approached and decided the matter in a perfectly acceptable and sensible way.

	It is contended that in reaching that conclusion they acted perversely because the evidence before the Tribunal was that it had been a rehearing and they had given full consideration to the question of whether any alternative employment was available for Mr Kennell.  This again is a pure question of fact.  Nothing which has been said on behalf of the Appellants persuades us that in reaching the conclusion which they did this Tribunal acted perversely.  They concluded that the appeal process in this case had not redressed or cured the earlier procedural defect.  That was a conclusion on the facts which they were clearly entitled to reach, not the least because it did appear that the Appellants had not fully considered the question of whether there really was any alternative employment for Mr Kennell.  They might have done so if Mr Kennell had been accompanied by his union representatives at the crucial meeting with the line manager (who was not called to give evidence before the Tribunal) before he made his decision to dismiss.

	The Appellants take a number of other miscellaneous points although they were not pursued with any great vigour.  On analysis they amount to no more than peripheral further challenges to the factual findings of the Tribunal and as such they cannot in our view be sustained.

	For these reasons this appeal is dismissed.