Appeal No. EAT/1040/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 February 2001

Before
MISS RECORDER SLADE QC
MR B GIBBS
MISS D WHITTINGHAM

MR C ELLIOTT	APPELLANT

PETERMAN ENGINEERING SERVICES LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	No appearance or 
representation by or on
behalf of the Appellant 	

MISS RECORDER SLADE QC

1	This is the preliminary hearing of an appeal brought by Mr Elliott against the dismissal of his complaints of unfair dismissal, wrongful dismissal and unlawful deduction from wages by a Sheffield Industrial Tribunal.  

2	There has been no appearance by or on behalf of Mr Elliott today.  We understand a message was left by a member of staff of the Employment Appeal Tribunal on the answerphone of his representative, but no message has been forthcoming from him or from the representative.  

3	In those circumstances we propose to deal with this matter on the papers.  In the light of the travel difficulties that there have been today, should Mr Elliott wish to apply to have the Order, which we are to make, set aside, he has liberty to do so, provided he does so within 7 days of the Order being drawn up and this judgment being sent to him.  

4	This is, the preliminary hearing of an appeal by Mr Elliott against a Decision of the Sheffield Industrial Tribunal which dismissed his claims.  The basis of the appeal may be summarised as follows: that the Employment Tribunal erred in law in failing to hold that the employer’s failure to comply with a contractual term, their obligation to provide Mr Elliott with a van which was to be for his private use as well as use on company business, relieved Mr Elliott of the obligation to present himself for work.  Reliance is placed in the rather extensive grounds of appeal on the principles in Miles v Wakefield [1987] ICR 368, which are said to apply in this case.  

5	The facts, briefly stated, are as follows.  Mr Elliott was provided with a van as a contractual entitlement.  He himself lived at some distance from his place of work.  His journey to work was highly inconvenient and lengthy by public transport, hence the benefit of the van was extremely important to him.  He had been provided with a van, but unfortunately that van, which was somewhat elderly, became dilapidated and eventually it broke down.  On 20 December 1999, Mr Elliott was unable to start the van, and could not drive in to work. The company sent out a service director who was able to get the van started by tow-start, and the Appellant was able to drive to work, although he was somewhat late.  He was told by his employers that they would not able to repeat this arrangement if the vehicle would not start again.  Unfortunately, the vehicle did not start the following day, and the Appellant was told that he should make his own arrangements to get himself to work.  However he failed to attend work, and on 22 December there was a telephone conversation between the Appellant and Mr Hunt the Respondent’s service manager, when the Appellant said he would not attend work until a van was made available for him to use.  

6	The remaining facts as found by the Tribunal may be briefly summarised as follows:  a van was not provided to the Appellant and the Appellant did not present himself for work.  There was some evidence that Mr Elliott declined to accompany his colleagues to work because although  a lift was offered to the Appellant to get him back from work he was unsure at what time that would be.  A disciplinary hearing was convened on 6 January 2000, as the company took the view that the Appellant’s continuing failure to attend for work constituted gross misconduct.  The Appellant attended the meeting and he was asked why he did not come into work and was reminded of the offer of a lift.  His reply to that was that the arrangements made for him were not suitable.  It appears that the company were taking the position, at that time, that the use of the van was a concession which could be withdrawn at any time.  The company said that a vehicle would have been made available to him within a few days of him attending work, and the only reason that the vehicle had not been purchased was because of the Appellant’s failure to attend work.  

7	A final warning was given to the Appellant that he should report for work no later than 17 January, and if that occurred, a suitable vehicle would be sought, but until then, he would have to make his own arrangements for travelling to and from work.  He was told clearly that if he did not attend on 17 January, he would be dismissed instantly.  The Appellant did not attend for work and he was dismissed summarily.  

8	The submission on behalf of the Appellant, as it appears from the papers in this appeal, is that he had a contractual right to a company vehicle for his private use.  Having regard to his relatively low wage and the importance of the vehicle to him for the purpose of getting to work,  this was an important term of the contract.  Since the company were in breach of that important term, that breach relieved the Appellant of further obligations to perform his part of the bargain, namely to present himself for work. 

9	In the grounds of appeal it is suggested that the judgment of the House of Lords in Miles v Wakefield [1987] ICR 368 can be applied in these circumstances so as to relieve the Appellant in this case of the contractual obligation that he was under to present himself for work. In Miles v Wakefield, the House of Lords concluded that, since there was only a partial performance of the contractual bargain of a superintendent registrar, Wakefield Metropolitan District Council were not obliged to make full payment of monies which would otherwise have been due to him.  The failure of the superintendent registrar to be ready willing and able to perform his full range of duties relieved the local authority of its obligation to make full payment, a partial payment having been made. 

10	The Appellant contends that similar reasoning can be applied to relieve him of his obligations under his contract, because the employers did not perform their obligation to provide him with a vehicle.  In our view, this argument cannot be sustained.  Miles v Wakefield was concerned with the relief of a monetary obligation, the district council’s obligation to make full payment.  In this case, there was no obligation on the employee to make any payment.  Thus the reasoning applied in Miles v Wakefield cannot be applied in this case.  

11	Further, the other argument referred to in Miles v Wakefield, that of equitable set-off, which was the basis of the decision in Sims v Rotherham [1986] ICR 897, could not be applied here.  This is not a case where it was asserted that there could be a claim by the employee which was of the same value in money terms as the value of the performance of his duties. 

12	In our view therefore, the position is this: there was a breach of contract by the employers by failing to provide a van.  That breach, provided it was not waived, no doubt may have given rise to a claim in damages, but it did not relieve the employee of his obligation under the contract to perform his part of the contractual bargain, namely to present himself for work.  

13	In those circumstances, this appeal must be dismissed, there is no error of law, as is alleged, in the Decision of the Employment Tribunal.  Having considered carefully all the written submissions made on behalf of the Appellant employee, we dismiss his appeal.  As indicated at the outset of this judgment, because of circumstances, and difficulties that some people have had in travelling today, we give liberty to the Appellant to apply, within 7 days of this Order being drawn up and this judgment being sent to him, to set them aside