Appeal No.	 EAT/487/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 July 1998

Before
HIS HONOUR JUDGE J HULL QC
MR L D COWAN
MS D WARWICK

DAVID CROOME LTD T/A CROOME	APPELLANTS
INTERNATIONAL TRANSPORT

MR M GRANT	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR M CROOME
(Representative)	

	JUDGE J HULL QC:     This is an appeal to us by David Croome Ltd t/a Croome International Transport.  They appeal against the decision of the Industrial Tribunal sitting at Ashford in Kent, Miss Wallis presiding with two members, on 12 January 1998 .  The decision was promulgated on 10 February; it was that the Respondent to the appeal, Mr Michael Paul Grant, a Heavy Goods Vehicle Fitter, had been unfairly dismissed.

	The circumstances, the facts, can be stated fairly shortly.  His employment with the Appellants began on 7 November 1994.  He was not ideal employee.  He first of all suffered a very serious illness in 1996, not of course his fault, but he had some sort of stroke, some interference with his cardiovascular system which led to a long period away from work, and after he had returned to work there were a number of incidents which led to his being given warnings and, I think, he had two final written warnings.

	However, a more serious matter arose with regard to his duties.  It was the Appellant’s trade in despatching heavy goods in their own heavy goods vehicles, which led to frequent trips to Russia; not to the most distant parts of Russia but certainly so far as Moscow and even several hundred miles beyond, we are told.  That, of course, was a regular thing for the drivers, but Mr Croome, who has appeared in front of us today, wanted Mr Grant to go as a fitter to Russia when one of their lorries was disabled, or had a breakdown of some sort, not a very common event because Mr Croome says, and we are sure he is right, the firm is anxious that its lorries should always be in first-class condition for these long and perhaps arduous trips.

	On these trips the drivers, of course, have a fairly exacting existence.  They sleep with their vehicle.  Mr Croome compared it with camping out.  They have to be self-reliant and, no doubt, they have all sorts of difficulties which they overcome when they go to these countries where perhaps they are not familiar with the language, the roads, the Police and so on.

	Mr Grant, when it was suggested to him that he should go out on the same basis as the drivers when there was one of these vehicles that needed some fitting work done to it after a breakdown, became very difficult about it, perhaps not surprisingly, in view of the serious illness which he had suffered.  He is apparently a man who is inclined to be rather violent in language and rough in manners and he said, among other things, that he certainly was not going unless proper arrangements were made for him to have hotel accommodation and unless arrangements, satisfactory to him, for insurance in the event of illness were made, and so forth.

	Mr Croome thought that Mr Grant was contractually obliged to go and therefore, in effect, ordered him to go.  Mr Grant took the view that that he was not contractually obliged to go and according to Mr Croome, who has told us about it today, actually ranted at him for something like an hour, which Mr Croome had to put up with and it was plainly not an occasion on which Mr Grant behaved himself particularly well, said Mr Croome.

	So we have to look and see what the Tribunal made of all this.  As a result of that meeting , which was on 1 September, Mr Croome said, “If that is your attitude” or words to this effect, “we are dismissing you” and dismissed him in accordance with the notice period under his contract.  
So Mr Grant, having been dismissed like this, applied to the Industrial Tribunal complaining of unfair dismissal and asking for compensation and that was what the Industrial Tribunal sat to hear.

	It might very well be that other complaints could have been made against Mr Grant, it may very well be that a different procedure could have been adopted, all sorts of things might have been, but the Industrial Tribunal had to consider the case as it was presented to them and they say:  “Mr Grant claimed that he had been unfairly dismissed by the Respondent when he had refused to attend a breakdown of a lorry which was situated somewhere in Russia.  The issue was whether or not these duties were part of Mr Grant’s contract of employment, and if they were, whether or not he was reasonable in refusing to carry them out given his current medical condition.”

	Then they go into the question of the contract.  They say that he received his letter of appointment which set out his terms and conditions of employment.  He had signed this agreement on 23 October 1994.  It does not refer to the location of his work other than to say that he is being offered a position “here” and the address at the top of the letter was the company address at Queenborough, Kent.  There is no mention that Mr Grant may be required to attend lorry breakdowns throughout Europe.  Mr Croome told the Tribunal that this possibility had been mentioned to Mr Grant at interview and he had agreed that he would be willing to travel to Europe, as he had experience of driving in Europe, particularly in Germany.  Mr Grant told the Tribunal that this was never a term of his employment.  So that was the issue between the parties.

	Then the Tribunal reached their finding about that.  It was not a matter of law, it was a matter of fact for them because there was nothing in the contract of employment.  “On balance”, they say, “we accept Mr Grant’s evidence on this point, that it was not within his duties to attend a lorry breakdown outside the UK”.

	Then Mr Croome pointed to a contract of employment which did include such a provision.  Mr Grant said he had never received this, so the Tribunal had to decide about that.  They said:

“We accept Mr Grant’s evidence that he did not receive this contract of employment.  Even if he did, it does not specifically say that attendance at breakdowns would include travel to Northern Europe and beyond”.

	They then went on to consider the facts at very considerable length.  After going through the facts and the history of the matter, they say:

“Mr Croome subsequently returned from holiday and met Mr Grant on 1 September 1997.  Mr Grant explained that he still had reservations about attending breakdowns abroad and wanted assurances with regard to pay, sleeping arrangements, medical insurance and life insurance, and also queried the arrangement with regard to inoculations and subsistence.”

	Pausing there, of course Mr Grant, if it was not a term of his contract and, in effect, what the employer was insisting on was a variation or addition to his contract, was entitled to argue about what terms he would accept such a variation on.

	The Tribunal go on, “Mr Croome told the Tribunal that he found these requests unacceptable and unusual, particularly with regard to pay”.  He told the Tribunal about the way the drivers carried on, and then they say that what Mr Croome told them was that: 

“... he considered that he had no alternative but to terminate Mr Grant’s employment there and then.  He decided that he would give him two weeks’ notice in view of his service, although he told the Tribunal that he felt that he could have dismissed him summarily because he had previous written warnings.”

	Those written warnings were, as I say, for other matters, indiscipline of various sorts.

	So there what the Tribunal are finding is that the parties were at cross-purposes.  Mr Grant rightly, as the Tribunal found, was saying “I am not obliged to do this and if I do go I will only go on my own terms”.  Mr Croome was saying “I find that quite unacceptable.  You are bound to go” and when Mr Grant proved totally intractable on that point, he felt he had no alternative but to dismiss him there and then.  No period for reflection.  No further warning.  No opportunity to Mr Grant to think about his position or be persuaded.

	So the Tribunal then come to their conclusions.  They say they are not satisfied that it was a term of the contract that Mr Grant could be required to go abroad.  They then considered that it might be a reasonable request to make of an employee, but the cross-requests made by Mr Grant were not unreasonable; not unreasonable for him to ask to see the insurance policy; to insist that he should be accommodated in hotel accommodation and to ask for his usual rate of pay rather than merely the driver’s rate of pay for going abroad.

	Then they came to a very critical part of their decision:

“We concluded that Mr Grant had no notice that the meeting on 1 September 1997 was a disciplinary interview or that it could lead to his dismissal.  He had no opportunity to prepare himself for a disciplinary meeting, or to arrange representation.  In short, he had no way of knowing that that meeting could lead to his dismissal.  He was not reminded of his right of appeal against the decision to dismiss him.  
In conclusion, therefore, we were satisfied that the dismissal was unfair, both substantively and procedurally.  We concluded that no reasonable employer would have dismissed the Applicant in these circumstances.
We considered the question of whether or not Mr Grant had contributed to his dismissal.  On balance, we concluded he had not.
We therefore find that the Applicant was unfairly dismissed by the Respondent.”

	And they adjourned the question of compensation.

	There is now the appeal to us.  We have asked Mr Croome, who has very courteously attended and told us about the case, what point of law there is here because, of course, we have no right to go into the facts or decide that the Tribunal has reached an erroneous view about the facts, nothing of that sort.

	Mr Croome was unable to point to any point of law, but he argued his case like this.  Here was a man who had given a good deal of trouble in the past.  He had had various warnings and here he was, being not merely difficult but impossible, when they asked him to go abroad, as other fitters did, as drivers did, to look after their lorries.  In their view, it was a normal incident of a fitter’s work that he should be asked to go and he was being completely unreasonable.

	That, it seems to us, was raising again a matter on which the Tribunal found that the parties were at cross-purposes and which they decided against Mr Croome.  If Mr Croome had indeed been entitled to insist, as a matter of contract, that Mr Grant should go abroad on the same terms as the drivers, then that would have been a very different situation and he could have handled the matter properly and said, “I am going to give you time to reflect on this, but we are going to insist on this and if you insist on refusing, then we shall dismiss you.  You have had warnings before about other matters”.

	It might very well be, it probably would have been, that if the matter had been handled like that, then the employers would have been entitled to dismiss Mr Grant.  But it all started off on the wrong foot because the employers were not entitled to insist on Mr Grant going abroad, as the Tribunal found.  If the employee cannot be made to go abroad, then the only way in which the employers can arrange for him to go abroad is by agreement and it takes two to make an agreement and the employee, therefore, Mr Grant, had them at his mercy, because he was entitled to stipulate, “I will go abroad, but you must arrange for a hotel, must arrange for a higher rate of pay than the drivers receive.  You must arrange various matters of insurance and I mean to see the insurance and satisfy myself about that.”  He was entitled to stipulate what he liked.  The question of reasonableness does not come into it at that stage.

	Mr Croome was mistaken as to the true contractual position, so one can only sympathise with him.  He says that he has learned a good deal from this, we are sure he has.  What we are also sure about is that he has no fairly arguable point of law.  That being the position, we simply cannot entertain the appeal and we should simply be wasting Mr Croome’s money and everybody’s else money and time if we allowed the appeal to proceed any further.

	So, having heard Mr Croome to whom we are very grateful, we simply have to say the appeal has to be dismissed at this stage.