Appeal No.	 EAT/847/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 June 1997

Before
HIS HONOUR JUDGE J HULL QC
MR E HAMMOND OBE
MRS M E SUNDERLAND JP

MRS K MYLES	APPELLANT

INITIAL CLEANING SERVICES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A BECK
(Employment Rights Adviser)
	
For the Respondents	MR D OUDKERK
(of Counsel)
Mr D L Thomas
Initial Cleaning Services
Unit P
Gunnelswood Trading Estate
Stevenage
SG1 2BH	

	JUDGE J HULL QC:     This is an appeal to us by Mrs Kathleen Alice Myles against the decision of the Industrial Tribunal, sitting at Stratford on 3 April 1996 under the chairmanship of Mr Heggs.  Mrs Miles complained to the Industrial Tribunal that she had been unfairly dismissed and that she wished to be awarded compensation.

	The facts are shortly as follows.  She began her employment with the Respondents, Initial Cleaning Services, a well known Company with large contracts, on 28 March 1988.  She was employed by them at Colchester as the supervisor of 20 or so cleaners, who worked at a well known department store in Colchester.

	The contract in Colchester alone was worth something of the order (we have been told) of £70,000 a year to Initial Cleaning Services, but that was only the beginning of the story, so far as commercial considerations are concerned, because this well known department store had many branches and the contract with that store, as a whole, was the most important single contract of Initial Cleaning Services, a contract of the order of £5½ million a year in value.

	So plainly, even by the standards of the Respondents, it was a most important contract which must be preserved, so far as they possibly could do so.  The employment continued, as I say, until there came a complaint from the customer.  This was on 22 August 1995 and the customer’s Finance and Operations Manager, who was stationed in Colchester, but apparently may have had wider responsibilities for other stores as well, made a complaint.  He asked the Initial Cleaning Services Manager to come and look; he had a video showing three of the cleaners, employed by the Respondents at the store, just standing around talking when they should have been working, said the Finance and Operations Manager.  Mrs Hughes, the Contract Manager, did attend.  

	Mr Standring, who appears (if we may say so) to have taken a fairly high line on this, said he wanted those three cleaners warned and he wanted the supervisor, that is Mrs Miles, removed from the store; he did not want her there any more.

	Some points are obvious at this stage.  First of all, the store Manager is clearly entitled, in the absence of a contract expressly preventing him from doing so, to ask anybody to leave his store, whether it is a customer or a person who is there doing contract work or anything else.  It is, of course, the commonest thing for a commercial contract (and I am thinking particularly of building contracts) to provide that the architect can require any operative, of any contractor or sub-contractor, to leave the site forthwith and not to return.  It is the prerogative of a land owner or occupier to say that somebody else must leave.

	The Industrial Tribunal dealt with this matter at some length.  The employers, the Respondents, were not in any way satisfied; notwithstanding that they had seen the video of the three ladies standing around, they were not in any way satisfied that Mrs Miles was guilty of any wrongdoing or neglect of her duties.  They sought explanations and they held meetings.  Mrs Hughes, the Contracts Manager, found the situation so strange that she thought that if she simply neglected to observe Mr Standring’s request for a few days, he might very well alter his mind when he had cooled down a bit and thought about it a bit, because it seemed to her so unreasonable and wrong, but she was unhappily mistaken about that.

	The net result of all this (I am going to refer to the Industrial Tribunal’s decision in a few minutes, who sum it up better than I should) was that the customer continued to be adamant, in the person of their Manager, that Mrs Miles must be removed.  In those circumstances, as envisaged by the booklet which the Tribunal was satisfied formed part of the contract of employment, the employers sought to find whether there was other alternative employment which they could offer Mrs Miles.  She had to be removed from the customer’s store, could she take other employment?  They could not find any other employment, within a reasonable radius, as a supervisor.  They did go a long way.  They offered her employment at the same salary as she had been receiving, or the same earnings as she had been receiving, in two near-by premises where they also had contracts, but it was not work as a supervisor and Mrs Miles, not unreasonably, was not content to work as a manual operative, as a cleaning woman.  She was conscious that her position had been the highly responsible one of supervisor and she was not prepared to accept employment as a mere operative.

	So the employers, having no work for Mrs Miles, had to dismiss her and did dismiss her, precisely as envisaged in their handbook, saying, in effect, “We have no alternative”.  We must look and see what happened about that.  She presented her complaint to the Industrial Tribunal and it was the duty of the Industrial Tribunal to enquire into it.  

	Mr Beck, who has appeared before us today, has invited our attention to the provisions of the Employment Protection (Consolidation) Act 1984, which was then in force.  It is section 57 of the Act; the general provisions relating to fairness of dismissal:

“... it shall be for the employer to show -
(a)  what was the reason (or, if there was more than one, the principal reason) for the dismissal, and
(b)  that it was a reason falling within subsection (2) [that does not apply here] or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.”

	When the employer has shown that, then:

“... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether, [in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]”

	Mr Beck is quite right to invite our attention to that and that, of course, was the essential question; the essential provision which the Industrial Tribunal had to consider.  So we have to look and see what they found.

	We would say first that the Industrial Tribunal is the sole judge of fact.  It is not for us to say what our findings of fact would have been, or whether we agree with what the Tribunal said happened, or whether another Tribunal might have reached the same decision or otherwise; all those questions are beside the point.  The Industrial Tribunal is the industrial jury and Parliament has expressly said that only questions of law are for us, not questions of fact.  

	The Tribunal set out the facts.  They say that this customer was the employer’s single most important customer and they set out the facts which I have already referred to concerning that.  They set out the relevant provision of the employees handbook:

“In the event of a client insisting that an employee be removed from site, the circumstances will be investigated and the employee will be given an opportunity to put forward his/her arguments on the case.  Where possible, suitable alternative employment will be arranged but should this not be feasible, then the employee will be dismissed with notice.”

	And they go on:

“5.  Mrs Myles performed her duties satisfactorily and the respondents had no cause or wish to dismiss her.  They were unaware that their customer had any cause to complain about the cleaning service provided:  indeed, in October 1995 [shortly after Mrs Myles’ dismissal] the Colchester store received the respondents’ cleaning operatives’ award, recognising the best attendance and least number of complaints over a 4 month period ...”

	And they go into the history of it.  They report this complaint by Mr Standring, the customer’s Manager, and how he wanted the cleaners warned and Mrs Miles removed.

“6. ... Miss Hughes pointed out that the Colchester store is a large 3 storey building and that it was impossible for Mrs Myles to be in all places at the same time.  Mr Standring would not be dissuaded and maintained that there could be no excuses and that it was Mrs Myles’ job to continuously walk round the store and ensure that everyone was working.  He insisted upon her removal from the store.”

	It is not for us to say whether Mr Standring was being reasonable or unreasonable, but it was plain that that was what the customer was insisting on, and it was also plain that Mrs Hughes was inclined to think, at any rate, that that was quite unreasonable in the circumstances.  There was something in the nature of a courteous argument between the two of them.

	Then the Tribunal say at paragraph 7:

“Upon the advice of Mrs R.Wheeler, the respondents’ Human Resources Director, Miss Hughes met Mr Standring again on Saturday 2 September 1995 in an endeavour to persuade him to change his mind.  Mr Standring was adamant in his refusal to permit Mrs Myles to continue working in the store.  He expressed the belief that she could not control the cleaning operatives and stated that it was the third occasion on which he had cause to complain about her.  He referred to a conversation with Mr Pearce [Customer Services Manager of the respondent Company] in 1994 when he had commented upon Mrs Myles’ apparent inability to prevent the cleaners from standing around talking.  Miss Hughes recalled the incident because it had resulted in her having an informal conversation with Mrs Myles at the request of Mr Pearce.  Miss Hughes stressed in evidence that this was the only occasion on which she had occasion to speak to Mrs Myles regarding her performance, that she had never received a formal complaint from the customer, and that in her opinion Mrs Myles consistently performed to a good standard.  Miss Hughes asked Mr Standring for written confirmation of his request.”

	It is fairly clear from this that we are dealing here with a gentleman, Mr Standring, who had very different ideas about management styles from Mrs Hughes.  So far as Mrs Hughes was concerned, no doubt so far as the Respondents were concerned, their task was to carry out their contract properly and to make sure that the store was kept clean, and kept properly clean at all times, and they were very happy with Mrs Myles’ performance.

	Mr Standring was that type of manager perhaps (if one likes, I do not criticise him in his absence) of a more militaristic or formal frame of mind, who likes to see everybody busying themselves about their task.  Indeed, there was some justification for criticism on this particular day because in fact, on this occasion, on Mrs Myles’ own account, she was short-staffed and here were three ladies apparently standing around and Mrs Myles herself had, apparently, been doing the job which one of the ladies should have done upstairs and was not there to set them about their duties.  So there was some ground for criticism, but certainly Mrs Hughes did not think there were enough grounds for what Mr Standring was saying and neither did her fellow-managers; her colleagues more senior than she was.

	So there it was.  They tried (as I say the Tribunal set this out) to find another job, they could not find another suitable job.  Mrs Miles was not prepared to accept a manual job.  She had to be dismissed.  She exercised her right of appeal on the ground that she had done nothing wrong, nor had the Respondents accused her of doing anything wrong.  The appeal was heard by Mr Gilbey and Mr Gilbey, prior to the appeal, wrote to Mr Standring and asked him to confirm in writing the reasons for his request that Mrs Myles be removed.  There was a letter eventually from the customer, which we will look at, on 12 October 1995 and that is to be found at page 12 of the bundle which has been added to our bundle.  It is on the writing paper, of course, of the big store group and it is signed by Mr Standring:

“I refer to our telephone conversation [writes Mr Standring] when you requested written confirmation of the reasons for withdrawal of Store approval for Mrs Kay Myles.  I should add that the area Supervisor/Manager Teresa Hughes had been made well aware of the growing problem over the last 3 months prior to our decision and should have communicated the details to you.
It is our considered opinion that Mrs Myles had failed some considerable time ago to be an effective Supervisor.  This issue had been taken up with her on three previous occasions in the presence of a member of Management of your organisation.  Each time there was a slight improvement for a short period of time before the situation reverted to what had by now become normal.
Events were brought to a head by Mrs Myles failure to meet certain standards of performance requested not only of her personally but from the whole team which she ? supervised.  When we were confronted with the same tired excuses and bearing in mind that we have video footage as evidence we decided that enough was enough and withdrew store approval.  We did so having first sought guidance and approval of the senior executives within our organisation who have specific responsibilities for the areas in question.”

	Mr Gilbey, the Regional Director of the Respondents, heard the appeal and felt obliged to dismiss it.  Neither he nor anybody else adopted the criticisms made by Mr Standring but that, so far as they were concerned, was not the point.  Mrs Myles could not return to her job at the customer’s premises.  They thought that Mrs Myles was a good Manager but they, in the circumstances, had no alternative, because they had no work for her, to dismissing her and so it came before the Industrial Tribunal.

	The Industrial Tribunal considered the reason for dismissal and they say as follows, in paragraph 13:

“(a)  The respondents were satisfied with Mrs Myles’ performance as a cleaning supervisor and the fact that their customer required her to be removed from her post in their department store in Colchester is not, in itself, a sufficient reason for dismissing her [a very important finding].  It depends upon what steps the respondents took, or could reasonably have been expected to take in consequence of the customer’s requirement to remove her from their premises [that seems to us to be entirely correct].”

	So they go on to look at all the circumstances.  They record Mrs Hughes’ attempts to secure that Mrs Myles remained in her job.  And they go on as follows:

“(d)  ...  Mr Beck suggests that the customer’s requirement that Mrs Myles should be removed from their store in Colchester was unjust and unfair to her and that the respondents should have done more than they did to take up the matter with their customer at a higher level of management.  As Finance & Operations Manager of the customer’s stores at Colchester, Cambridge and Chelmsford, Mr Standring was a senior manager.  It is a counsel of perfection to suggest that the matter should have been taken up at a higher level and in the particular circumstances it would have imposed an unreasonable burden upon the respondents who had already done everything which they possibly could to secure a reversal of the decision at local level. ...”

	And they go on to consider the letter which I have already read and they say:

“It is accordingly apparent that the customer’s senior managers would inevitably have upheld the decision of the local manager, regardless of the consequences to Mrs Myles, while by pursuing the matter further the respondents would risk undermining their working relationship with one of their best customers responsible for an annual turnover of £5.3 m. ...”

	That is the view of the Industrial Tribunal.  It was for them to say whether they took that view; it is a readily understandable view.  We are asked to say, by Mr Beck, that that is a perverse view to take and wrong in law, and he refers us to a case.

	Pausing at that point, before we go to that authority on which Mr Beck relies, here was a Manager taking a very high line and saying, “I want this woman removed”.  It is said that the line he was taking was obviously dishonest and it is said by Mr Beck, although this is challenged to some extent, that when a representative (I think Mr Gilbey who was giving evidence before the Industrial Tribunal) was asked, “What was said in this letter was untrue, a pack of lies?” he said, “Yes, it was”, but the fact is that it was not.  Mr Standring had made a complaint earlier, as Mrs Hughes recorded.  What was being suggested was that the employers should go over the head of Mr Standring, presumably to a member of the Board of this store.  In those circumstances, to say the least of it, what seems to be the common-sense comment is this.  They would inevitably be saying, “Choose between our view of what is right and just - we think that Mrs Myles is a good cleaning manager and has not done anything wrong - and that of your own fairly senior manager, in charge of an important store at least, and perhaps of other stores too”.  They would be taking a colossal risk.  The big store company, the customer, might very well take the view that they were being asked to choose between their own trusted manager and a cleaning firm and what might be expected then?  The answer might be a very serious one for the cleaning company.  It might, of course, be that Mr Standring would be disowned by his own management.  That was another possibility, but the Tribunal had to assess that.  The question under Section 57 is:  “What was it reasonable for the employers to do?”  That is question of fact and that is a question of fact for the Industrial Tribunal and not for us.  

	The Tribunal go on to consider various other matters and the contents of the handbook and so on and they come to their conclusion.  They say:

“(g)  We are conscious of the fact that Mrs Myles considers that she has been unjustly treated [and unjustly, of course, by the manager of the store, Mr Standring]. ...”

	They consider the employer’s position and they say:

“Under the circumstances we [the Industrial Tribunal] do not think that there was anything more which they could reasonably have done.”

	On the face of it, that is a matter for the Industrial Tribunal.

	Plainly, Mrs Myles felt very hard done by, unjustly treated and plainly, Mrs Hughes and the Managers senior to her in the Respondents felt just the same, but the question was not Mrs Myles’ feelings, however just they may have been, or Initial Cleaning Services’ feelings, but what could they reasonably be expected to do?  The Tribunal had a view about that.  After hearing all the evidence, including the evidence about which Mr Beck has told us, namely, that this explanation given by Mr Standring was over-stated, or perhaps even actually disingenuous.  They considered that.

	What Mr Beck has asked us to do is to say, “That is wrong in law.  The cleaning Company, the Respondents, should have gone over the head of Mr Standring, perhaps to his Board, perhaps to the next manager up, the Managing Director perhaps and said, ‘This is an unreasonable decision.  Please reverse it, or at any rate give us frank reasons for it’ ”  And, says Mr Beck, that is the result of a decision of the Employment Appeal Tribunal, our own Tribunal sitting in Scotland under the chairmanship of Lord Coulsfield.  Mr Beck says that the decision of the Tribunal in this case is absolutely contrary to what was decided both by the Industrial Tribunal in that case and by our own Employment Appeal Tribunal.

	We look at that case and we see what happened.  In that case the employee, who was employed by the Respondents, who were contractors, was employed as a chargehand rigger on a North Sea oil rig operated by one of the oil giants, as they are called, one of the huge international oil companies.  They expressly reserved the right to say that any of the contractor’s personnel could be removed.  This particular employee was, in effect, ordered off the rig by the oil company.  No reason was given.  There was no alternative work for him.  The Respondents’ managers discussed the matter.  An Operations Manager was brought in.  There was contact with the Advisory Conciliation and Arbitration Service.  They accepted that the correct procedure was to make the Respondent redundant and he was told that he was redundant.  The Manager saw the representative of the oil giant, asked him to reconsider the position; tried to arrange a further meeting between the oil Company and the Manager of the Respondents; attempted to persuade them to reconsider the matter; suggested they might take the operative back with a written warning, but they still refused and they did not, at any time, give a reason for their decision.

	So again, it was a question of fact for the Industrial Tribunal in that case to decide whether the employers had acted reasonably or unreasonably in dismissing him.  The facts, of course, were different.  The facts in every case are different, or likely to be different.  The Tribunal had to consider in particular the fact that no explanation had been given.  What did they say?  They said:

“In this case in our opinion [said the Tribunal] the respondents did not carry out sufficient investigation to ascertain the reason for ... [the oil company’s] insistence that they would not allow the applicant back on their platform.”

	They said that, under the terms of the contract with the oil company, the oil company

“would have the right upon reasonable notice in writing to require the removal and replacement of any of the respondents’ personnel.  The respondents in this case did not endeavour to obtain such notice in writing and we would have thought that it was encumbent upon them, at least, to make this request, to enable them to explain ... [the oil company’s] reasons, to the applicant.  In these circumstances we were satisfied (whilst appreciating the difficulties) that the respondents had not carried out the duties placed upon them either to have explained to employees that there was always a possibility of such dismissal or making a wholehearted endeavour to discover the reasons for ... [the oil company’s] refusal.”

	So the facts were different.  The Industrial Tribunal considered the question as one of fact.  Had the employers made a wholehearted endeavour to discover the reasons for the refusal?  Had they asked the oil company to give written notice in accordance with the contract which might well have disclosed the reasons?

	The Industrial Tribunal, who had the sole responsibility for the facts, thought that in those circumstances the employers had not done enough.  Since it was a question of fact, it goes without saying that another Industrial Tribunal, differently composed, might have reached the opposite conclusion and might have said, “They might have done more, but nonetheless we think they had done as much as was reasonably required”.  So, as I say, the Industrial Tribunal in Scotland reached that conclusion.  The question for Lord Coulsfield’s Tribunal, the Employment Appeal Tribunal sitting in Scotland, was whether, as a matter of law, that was wrong.  Lord Coulsfield’s Tribunal went through the facts again.  They considered the authorities.  They said that to this day the employers did not know why the oil company had insisted on this.  They say:

“The Industrial Tribunal had satisfied themselves that enough had not been done by the employers.”

	And they go on to say:

“In any event the Industrial Tribunal, in accepting that the employers had not done enough, had not fallen into any error of law.”

	And they went on to consider the matter, as I say, at considerable length.  They considered other cases and they said that there were other authorities supporting the proposition that, unless the reason could be discovered, the dismissal could not be reasonable.  They did not go as far as that.  They said:

“The Industrial Tribunal have recognised the difficulties in which the employers were placed by ... [the oil company’s] refusal to give any explanation for what they had done, or to reconsider their decision:  but they [the Tribunal] have held that there were steps which could have been taken by the appellants, namely, to insist upon written notice in accordance with the terms of the contract, and to make a formal request for the reasons for ... [the oil company’s] action.
In our view, therefore, the Industrial Tribunal did not fall into any error of law, and the decision which they reached was a decision made upon the facts and circumstances of the particular case.  It follows that the appeal will be dismissed.

	As I have said, it would have been perfectly open to the Tribunal in that case to reach the contrary conclusion and we think (with all respect to Lord Coulsfield) that it might very well have been difficult, if not impossible, for the Employment Appeal Tribunal in Scotland to say that their decision was wrong.  It was a matter for the Industrial Tribunal.

	Here the facts, of course, of this case are quite different.  The store company had not merely given the reason, but reiterated it and insisted dogmatically on it.  It was true that the employers disagreed with that and had done all they could, in the view of the Tribunal, to try and make the store company, the customer, alter their decision, review it and look into the matter again.  So the facts were utterly different and the Tribunal asked themselves the question:  “Was there anything more that the employers could have done?”  The answer was “Yes”.  Hypothetically, they could have gone over the head of the Manager, Mr Standring, and gone over his head to some very senior people in the store company, perhaps to the Board, on behalf of Mrs Myles and said, “You should reverse this Manager’s decision”.  It was plainly Mr Standring who had responsibility for conditions in the store, he was the Finance and Operations Manager.  To go over the head of a person in that position is a very serious step to take and the employers had to think, not merely of Mrs Myles, but of contracts involving literally hundreds and hundreds of their own employees.  Suppose, as was only too possible, the store company had said, “We are supporting our Manager in this and if our store Manager here, in Colchester, is going to have as much trouble as this when he does something which he is plainly entitled to do and in his own conscience thought it right to do in the interests of the store company, this sort of thing is going to happen elsewhere.  This cleaning company are going to seek to quarrel with managers elsewhere.  If that is going to happen then we think we had better find another cleaning company” and that would undoubtedly have imperilled the jobs, as I say, of literally hundreds of the employees of the cleaning company; £5½ million of work per year clearly involves not merely the interests of the Respondents, but of their employees.  

	It is not for us to weigh these matters up.  It is for the Industrial Tribunal to weigh them up.  They must say to themselves, “We are not the employers.  The employers must take such action, of course, as they think right and just.  They have done.  Do we feel obliged to say that they should have gone further; that we think that any reasonable employer would have gone further, in view of their feeling of injustice?”.  The Industrial Tribunal (the Tribunal of fact) has said, “No, we do not.  We are satisfied that, as a matter of common-sense and reason, the employers had gone as far as they could reasonably be expected to do.  It is not our duty to insist on perfection (said the Tribunal) and what is being urged on us on behalf of Mrs Myles is a counsel of perfection and so we reject that”.

	Mr Beck has said to us today that, in saying that, the Industrial Tribunal were describing rules of law laid down by the Employment Appeal Tribunal in the case in Scotland as being a counsel of perfection.  For the reasons which we have endeavoured to indicate, that shows a misunderstanding of the Scottish proceedings, both before the Industrial Tribunal and before Lord Coulsfield and if that submission were made to us by a lawyer, we would feel obliged to say that it was an abuse of the doctrine of precedent to make such a submission.  We have tried to explain, for the benefit of course of Mr Beck, but much more important for the benefit of Mrs Myles and of the Respondents, why we think that that is a misconceived and wrong submission.  

	We think that there was here no error of law that we can detect in this Industrial Tribunal’s decision.  We think that it was one which they were entitled, as a matter of law, to reach and that it was not perverse.  Incidentally (and this is somewhat beside the point) we think that there are many, many things that can be said, and were said, by the Industrial Tribunal in support of their decision, which showed it to be an entirely rational decision with which we might very well agree, if we were trying the case, but that is not the point.  What we are satisfied of is that there is here no error of law which we can detect and being restricted by Parliament considering errors of law, we have been driven to the conclusion that we cannot interfere with this decision and the appeal must be dismissed.

	We wish to associate ourselves with the feelings of sympathy for Mrs Myles, which were expressed both by her employers and by the Industrial Tribunal.  It does appear to us that both in the view of her employers and of the Industrial Tribunal there was no just criticism which could be made of Mrs Myles and that, indeed, she was carrying out her duties in a satisfactory way.  The fact is though that the circumstances in the present case made those matters, though important, not decisive of the case and the Industrial Tribunal were compelled to give effect to what is said in Section 57 of the Employment Protection (Consolidation) Act 1984 which was then in force.  It is perfectly true that Parliament might have gone further than it did in that Act and might have said in circumstances such as this, “Not only must the employer act reasonably, but the customer must act reasonably”.  That has never been said by Parliament.  Parliament may one day say that, but Parliament has not said that, so in those circumstances, as we say, with regret, the appeal falls to be dismissed and that is all we can properly say on the topic.