Appeal No. EAT/574/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 February 1995

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MR K M HACK JP

	MR R TODD

WHITBREAD PLC T/A THRESHER 	APPELLANTS

(1) MRS J WARREN	RESPONDENTS
(2) MRS P M SHORT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A LYON
(Of Counsel)
Messrs Weightman Rutherfords
Richmond House
1 Rumford Place
Liverpool
L3 90W

For the Respondents	MR DAMIAN BROWN
(Of Counsel)
Kate O'Neill
USDAW
188 Wilmslow Road
Fallowfield
Manchester
M14 6LJ

	JUDGE LEVY QC:   Whitbread Plc trading as Thresher ("the Company") appeal against the decision of an Industrial Tribunal sitting at Bristol on 27 May 1993, when they held that Mrs Warren and Mrs Short were unfairly dismissed.

	The background to the case is that the Company attempted to vary contractual hours of work of two long-standing employees.  The two employees were prepared only to accept a minor variation to their workload and that might have given the Company the opportunity to dismiss them for some other substantial reasons.  Instead of this however, the Company decided unilaterally to change the terms of their contract by requiring them to work to a different time schedule and then to dismiss them for not working the new hours which the Company had introduced.  

	The Company seek to argue that since they could have dismissed for some other substantial reasons and it might have been a fair dismissal in those circumstances, the Industrial Tribunal erred in law in reaching its decision.  There is no suggestion that the decision is perverse.  There has been no request for the Chairman's notes.  The evidence which we have comes from the decision and the bundle of documents produced to us on this Appeal.  The Company must identify an error of law in the decision and in our judgment they had failed to do so.  

	There was a unilateral change in the two employees' terms of work.  The Notice of Appearance which the Company sent to the Industrial Tribunal said in box 3 that they were dismissed for "conduct / some other substantial reason", but in box 8 stated inter alia 

		"The Applicant was ultimately dismissed for refusing to accept a change in her rota-ed hours of work to meet the needs of business ....".  

	Despite being represented by solicitors and counsel throughout, it has been difficult to discern from its pleaded case precisely what the Company then said was the precise reason for dismissal.

	Prior to the lawyer's involvement, Phillip Klette the relevant Area Sales Manager of the  Company found no difficulty stating the position.  On 11 January 1993, he wrote Mrs Short a two page letter recording the disciplinary hearing held on 8 January 1992.  On the first page he complained, inter alia, she had "not worked evenings as rotared".  On the second page the letter continued:

		"I stated that there were two options for you to consider.  Either you would work evenings as required by the Company or you would be dismissed for Gross Misconduct for Breach of Contract.

		After adjournment, you stated that you could not accept that the contractual changes made by the Company were valid, therefore you would not work evenings.

		I concluded that on the basis of the above information, I had no alternative other than to summarily dismiss you with immediate effect for Gross Misconduct for Breach of Contract.... ". 

	Paragraph 3 of the Industrial Tribunal's Reasons stated:

  		"3  Whilst we are of the opinion that the respondent's requirement at its Keynsham branch could have amounted to `some other substantial reason' as envisaged by s.57(1) of the Employment Protection (Consolidation) Act 1978 the respondent did not, apparently, consider this to be the case.  It sought first to impose upon the applicants terms and conditions of service that were unacceptable to them and secondly embarked upon a disciplinary procedure which resulted in the applicants being dismissed for `gross misconduct' when for their part the applicants believed they were honouring their agreements".

	Having regard to the terms of Mr Klette's letters this was a finding the Tribunal was entitled to make.  The Company focused on the failure to work the hours which had been rotared for the two employees, not on the refusal to accept the new terms.

	A submission was made by Mr Lyon that there should have been no compensation payable because if the Company had followed the right route, the employees would have had to leave anyway.  They would have been dismissed for some other substantial reason.  In our judgment that is "crystal ball gazing".  If the proper route had been used, there might have been a redundancy from which other monies might have become payable to the Appellants.  
	During the hearing, Mr Lyon cited to us the decision in Trico-Folberth Ltd  v  Devonshire [1989] IRLR 396.  That case could have been cited below but was not.  We are satisfied that if it had been cited below, the Tribunal's decision would not have changed albeit albeit that the Reasons given might have been marginally adjusted to take account of the citations in that report to which Mr Lyon referred.

	Mr Brown submitted to us that here what the Company was trying to do was to provide retrospective justification for its decision.  We are sure that Mr Brown is right on this and this is an appeal which has no merit in law at all and no merit on the facts as found by the Industrial Tribunal and as, on the evidence, they were entitled to find.

	In the circumstances, we dismiss the appeal.