Appeal No.	 EAT/925/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 November 1996

Before
HIS HONOUR JUDGE PETER CLARK
MR R N STRAKER
MRS P TURNER OBE

MR K SCHOFIELD	APPELLANT

F BENDER LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANT	
For the Respondents	MR PETER OLDHAM
(of Counsel)
Messrs Withers
Solicitors
12 Gough Square
London
EC4A 3DE	

	JUDGE PETER CLARK:    This is an appeal by Mr Schofield against a decision of the Shrewsbury Industrial Tribunal sitting on 15th February and 10th April 1995, dismissing his complaint against his former employer, F Bender Ltd. Extended reasons for that decision are dated 2nd August 1995.

	Unfortunately his representative, Mr Kevin Janes, was prevented from attending the hearing before us today through ill-health. He asks us to take into account his written submissions in the event that we proceed with the hearing. We have proceeded with the hearing on the application of Mr Oldham who appears for the respondent, and in reaching our conclusions we have taken into account the written submissions put before us by Mr Janes, as well as the arguments addressed to us by Mr Oldham.

	The appellant referred to two matters of complaint in his originating application, wrongful dismissal and unfair dismissal. So far as the first claim is concerned that was not a live issue before the tribunal, since the appellant received full contractual pay in lieu of notice at the time of his dismissal. We are therefore concerned in this appeal only with the tribunal’s finding that the dismissal was fair.

	The factual background, as found by the Industrial Tribunal, is as follows: the respondent carried on the business of manufacturing paper disposable products for the catering trade. Demand is seasonal, so that there are peaks and troughs in the company’s production requirements at their factory in Wrexham. The company operates a 24 hour production cycle, with three eight hour shifts.

	The appellant commenced employment as a mounter proofer on 16th June 1988. He proved to be an excellent worker.

	His letter of appointment, which sets out terms on which he accepted the employment, provided that his hours of work would be 40 hours per week, i.e., 6 a.m. to 2 p.m. and 2 p.m. to 10 p.m. Those were two of the three daily shifts; the third being the night shift from 10 p.m. until 6 a.m. The letter continued:

“The Company reserves the right to change your shift pattern and pay the appropriate premium when applicable, and you may be required to work overtime at the Managements discretion.”

	The workforce was organised by the Transport and General Workers Union [“the union”], which had sole negotiating rights at the plant from 1985.

	At the relevant times, the appellant was one of three operators working on the placemat machine. His colleagues were Messrs Round and Buckle.

	In August 1993 Mr Smith, the shift supervisor asked all three operators to take it in turns to work on the night shift over the following two month period. Round and Buckle agreed; the appellant initially refused. Thus the other two men covered for him on the night shift, but with some reluctance. In September Mr Smith told the appellant that his workmates were no longer prepared to cover for him and he must take his turn on nights. At this stage he again refused to work the night shift and took a fortnight’s sick leave. His objection to working nights was that his wife was unhappy about being left alone at home with their small child during the night.

	Following his return to work he was persuaded to take his turn on the night shift. We pause to observe that on the tribunal’s findings the appellant accepted that he had worked nights on and off since 1989, and indeed had worked a total of 16 nights over a two year period.

	Then, on 21st April 1994, the appellant again refused to work the night shift. He was given a written warning. Nevertheless he again refused to work the night shift in August 1994.

	In about early October 1994 Mr Smith gave the appellant one weeks advance notice that he would be required to work a night shift. When the time came the appellant did not turn in for work and his machine could not be operated. He arrived for work the following morning at 6 a.m., and when asked why he had not turned in the night before he said it was not in his contract.

	Pausing again, it was the appellant’s case before the tribunal that everytime he worked nights, from 1989 onwards, he had stated that he was not contractually obliged to do night work. That version was rejected by the tribunal, which found that he raised this contention for the first time on that October morning. He was then suspended by Mr Smith, pending a full investigation by Mr Richbell, the personnel manager.

	Throughout, the union had been involved. Mr Fairhurst, the recently appointed works convenor, told the tribunal that he had initially advised the appellant not to attend for the night shift in October; however he then spoke to Mr Jeffries, the union Divisional Officer. According to Mr Fairhurst’s evidence Mr Jeffries told him that the appellant had no case and he should work the night shift when required.

	Mr Jeffries spoke to Mr Richbell asking for generosity. He accepted that Mr Richbell had the right to dismiss the appellant for gross misconduct. As a result Mr Richbell wrote to the appellant offering an ex gratia payment if he resigned. This resolution was apparently suggested by Mr Fairhurst, but it was rejected by the appellant. Then, on 14th October Mr Fairhurst telephoned Mr Richbell, indicating that the appellant was not prepared to return and asking that he be given formal notice of dismissal so that he could draw unemployment benefit. This Mr Richbell did by letter dated 20th October 1994.

	Against that background the tribunal concluded, we note from their summary reasons dated 5th May 1995, that the reason for dismissal was failure to work the night shift when requested to do so, and that such reason related to his conduct.

	In their full reasons they express their conclusions at paragraphs 13 and 14 in this way:

“13.	At the end of the day we are satisfied that the applicant was employed to work the nightshift on such occasions as was required by his employer. That is clear in our view from the agreement at page 28 at seq. It is also clear from his letter of appointment: page 8.
Under his contract his hours were flexible. Every attempt had been made to accommodate the applicant in the past because of his personal circumstances, but the time came when it was impossible to accommodate him any longer, and he was required to take his turn like the other two on his particular production line. When he refused to do so after being given a week’s notice in advance, he was eventually dismissed. This was the first time, notwithstanding his evidence to the contrary, that the applicant had maintained that he was not obliged to work nights if required.
14.	At the end of the day we are unanimously satisfied that the respondent was acting within the band of reasonable responses of a reasonable employer in dismissing the applicant following his refusal to work the nightshift.”

The Appeal
The appellant put in his own Notice of Appeal dated 26th August 1995. The points taken on his behalf at a preliminary hearing before this tribunal are contained in the skeleton argument prepared by Mr Janes, who represented the appellant below.
	
	The main thrust of the argument is that there was no contractual obligation on the appellant to work nights. It is contended that the appointment letter envisaged only work on the 6 a.m. to 2 p.m. and 2 p.m. and 10 p.m. shifts. Further, it is submitted that the collective agreement referred to in paragraph 13 of the full reasons was not, expressly or impliedly, incorporated into the contract of service made between employer and employee, and in any event, the terms of the collective agreement “all workers within the plant shall be flexible” were too broad to cover a requirement to work the night shift, even were it to have been incorporated into the contract.

	In our judgment that submission contains two misconceptions. First, the contractual obligation. We are quite satisfied that the tribunal were entitled to treat the appellant’s letter of appointment as a contractual document. The proviso to the ordinary shift patterns to which we have referred permits the company to change the appellant’s shift to the night shift. The question as to whether or not the terms of the collective agreement were incorporated into the contract of employment is therefore immaterial.

	The second point is this. The question as to whether or not the instruction to work nights was provided for the in the contract is not determinative of the question of the fairness of the dismissal.

	Refusal by an employee to perform work which the employer requires under the terms of the contract may result in a fair dismissal. See Courtney v Babcock & Wilcox Operations Ltd [1977] IRLR 30.

	Refusal by an employee to perform work outside the terms of the contract may result in an unfair dismissal.

	However, an employee’s insistence on working to the terms of his contract may in turn lead to a fair dismissal. See Brandon & Goold v Murphy Brothers [1983] IRLR 54.

	In another context, it may be fair for an employer to dismiss an employee for refusing to agree to a variation in the terms of his contract where the employer can show good business reasons for insisting on the variation. See, for example, R S Components Ltd v Irwin [1973] ICR 353, when the National Industrial Relations Court upheld a finding of fair dismissal based on some other substantial reason where the employee refused to accept the addition of a restrictive covenant to his contract of employment.

	This tribunal found that the respondent was contractually entitled to require the appellant to work nights and that, in the light of the history, it acted reasonably in dismissing him for consistently refusing to do so. We can see no grounds for interfering with that conclusion.

	Mr Janes takes a further point. He challenges the tribunal’s finding that it was not until October 1994 that the appellant contended that he was not contractually obliged to work nights. First, that finding only becomes material if we were to conclude that there was no provision in the contract enabling the employer to insist on night work, in which event we should have to consider Mr Oldham’s alternative submission that the appellant’s earlier acquiescence in working nights amounted to a consensual variation of the contract. In fact, we are satisfied that the letter of appointment, properly construed, gave the employer the contractual right to insist on night work and thus it is unnecessary to rule on that alternative submission. Second, and in any event, we find no tension between the tribunal’s finding that the contractual point had not been raised by the appellant before October, and the findings in paragraphs 8 and 9 of the full reasons that for a period of 12 months prior to October 1994 the appellant had refused to work the night shift.

	It is one thing for an employee to refuse to work a particular shift, it is another thing for him to contend that he is refusing because his contract does not require him to work in that way.

	In all the circumstances we are unable to discern any error of law in the tribunal’s approach. Accordingly, this appeal must be dismissed.