Appeal No.	 EAT/723/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 January 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR L D COWAN
MR D J JENKINS MBE

GARDLINE INFOTEC	APPELLANTS

MISS H GOSSENS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR MARTIN WEST
(Senior Advocate)
Peninsula Business Services Ltd
Stamford House
361-365 Chapel Street
Manchester
M3 5JY	

	JUDGE PETER CLARK:   This is an appeal by the employer, Gardline Infotec [“the Company”], against a decision of the Norwich Industrial Tribunal sitting on 23rd April 1996 that the applicant employee, Miss Gossens [“the applicant”] was unfairly dismissed. Compensation totalling £5,942.94 was ordered. Extended reasons for the decision are dated 15th May 1996.

	The facts as found by the Industrial Tribunal were, briefly, these - the applicant was employed by the Company as a digital cartographer from March 1989 until 25th October 1995. The business in which she was employed involved the transfer of printed maps onto a computer system.

	Initially she was remunerated by way of a salary plus bonus. In 1992 the contract was consensually varied so that she was paid on a piece-work basis only. No work, no pay.

	The rate of payment for work varied from time to time, according to the terms of the contract between the Company and its customer.

	We are particularly concerned with a contract entered into between the Company and South Western Electricity Board (SWEB). A problem arose on 4th October 1995 which required that alterations had to be made to maps already produced. The applicant’s colleagues who were paid on a salary plus bonus system were paid their basic salary for carrying out these corrections. The applicant was not. Although she had previously been paid for carrying out corrections, on this occasion the Company refused to do so. The tribunal found that these alterations arose without fault on the part of the applicant.

	The applicant refused to carry out the corrections without pay. As a result she was suspended, disciplinary proceedings, including an appeal, followed. She was dismissed.

	The tribunal found that the reason for dismissal related to the applicant’s conduct in refusing to carry out the corrections before embarking on new, paid work. However, it found that the dismissal was unfair on the grounds, principally, that the amendments were not due to her fault and thus she was contractually entitled to be paid for them. In short, the applicant had reasonably refused to comply with an instruction which was itself neither lawful nor reasonable. The Company had acted unreasonably under what was then section 57(3) of the Employment Protection (Consolidation) Act 1978.

	In this appeal Mr West takes three points on behalf of the Company. First, that in paragraph 8 of their reasons the tribunal substituted its view for that of the employer as to the true construction of the contract of employment. We reject that contention. It was for the tribunal to make a finding as to the true contractual position being one of the factors in deciding whether the employee’s refusal to carry out the instruction was reasonable. Secondly, he complains that the tribunal was wrong to require the employer to invoke the grievance procedure in relation to the contractual dispute. We see the force of that submission, but do not regard that finding by the tribunal as being essential to their conclusion to unfairness. The gravamen of the tribunal’s decision on reasonableness is to be found in these words in paragraph 8 of the reasons:

“... On the basis of our findings that the amendments were not due to the applicant’s fault, and she was accordingly entitled to be paid for them, we find that the dismissal was unfair.”

	Finally he submits that on the basis of the well-known principles in British Homes Stores v Burchell [1980] ICR 303 the tribunal was wrong to find the dismissal unfair in circumstances where the employer honestly believed that the employee was in breach of contract in refusing to carry out the corrections without pay. However, that submission overlooks the further requirement under the Burchell test that the employer had reasonable grounds for that belief. Plainly the tribunal found that it did not.

	This is a preliminary hearing held to determine whether or not there is any arguable point or points of law to go to a full hearing before the appeal tribunal. In our judgment no such arguable points have been made out, and in those circumstances, we shall dismiss this appeal.