Appeal No. UKEAT/0242/06/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 July 2006
Judgment handed down on 18 December 2006

Before
HIS HONOUR JUDGE SEROTA QC
MR B BEYNON
MRS J M MATTHIAS

MR D J WISE	APPELLANT

LONDON BOROUGH OF REDBRIDGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr David John Wise
(the Appellant in Person)	
For the Respondent	Ms Martina Murphy
(of Counsel)
Instructed by:
London Borough of Redbridge
128-142 High Road
Town Hall
Ilford Essex
IG1 1DD	

Summary
Contract of employment – Implied term/ variation/ construction of term
Unfair dismissal – Procedural fairness/ automatically unfair dismissal
The decision of the Employment Tribunal that there was an implied mobility clause in the Claimant’s contract of employment was correct.  The implication of such a term was both obvious and justified by custom and practice.  The contracts of all other employees of the Respondent contained such a term, which had been agreed with relevant Trades Unions and the Claimant’s contract had been left partially blank and incomplete.

In the circumstances the decision of the Employment Tribunal dismissing the claim for unfair dismissal could not be faulted.

Categories 9K, 1 1E

HIS HONOUR JUDGE SEROTA QC

Introduction
1.	This is an appeal from a decision of the Employment Tribunal at Stratford entered onto the register on 1 August 2005 after a 7 day hearing.  The Chairman was Mr John Scannell.  The Employment Tribunal found that the Claimant had not been unfairly dismissed.

2.	These proceedings have a tangled procedural history.  The Claimant was dismissed on 4 February 2002 from his position as a warden at Hainault Country Park.  His originating application was presented on 22 April 2002.  The first hearing for directions was fixed for 4 October 2002.  On 8 October 2002 the parties were informed that the case had been fixed for a 2 day hearing commencing 19 December 2002.  On 19 December 2002 the hearing was adjourned at the Claimant’s request to 20 March 2003.  On 20 March 2003 the Defendant took the point that the Claimant lacked sufficient service to enable him to commence the proceedings.  This point took the Claimant by surprise and the Employment Tribunal found against the Claimant who appealed.  On 9 October 2003 the Claimant’s appeal was allowed by the Employment Appeal Tribunal and the case remitted for hearing by a differently constituted Employment Tribunal.  On 21 December 2003 the Claimant sought to amend his originating application to raise allegations of victimisation; the Employment Tribunal refused permission to amend on 19 January 2004.  On 7 March 2004 the Claimant sought an extension of time in which to appeal; his application was refused on 25 May 2004 by the Registrar.  On 24 January 2005 the Claimant (we are bound to say in somewhat offensive terms) sought an oral hearing.  On 8 February 2005 the Claimant complained to the Employment Tribunal about alleged bias on the part of the Chairman, Mr Scannell of the Employment Tribunal.  Mr Scannell had refused to set a preliminary hearing to consider the victimisation claim.  On 16 February 2005 HHJ McMullen QC determined the appeal under rule 3(6) of the Employment Appeal Tribunal rules of procedure.  On 9 October 2005 Rimer J rejected an application under rule 3(10) to reconsider the decision of HHJ McMullen QC.  

3.	The present Notice of Appeal was received on 9 September 2005 and was disposed of by Elias J under rule 3(6) on 15 November 2005.  On 21 December 2005 the Claimant decided rather than proceed with a hearing under rule 3(10) he wished to deal with his appeal by means of a revised Notice of Appeal.  This was considered by HHJ Reid QC on 30 January 2006 on paper and rejected.  However, on 19 April 2006 Cox J allowed an application under rule 3(10) and permitted a modified Notice of Appeal on limited grounds to go forward.  That is the Notice of Appeal with which we are presently concerned.  We note that at the hearing before Cox J the Claimant had the benefit of being represented by Mr Declan O’dempsey of Counsel who appeared under the ELAAS Scheme.  We have set out the procedural history at some length to explain the delay between the originating application, the hearing and the appeal.

The factual background
4.	We limit reference to the factual background so as to have regard only to those matters that are relevant to the Notice of Appeal that we have to consider.

5.	The Claimant was employed as a warden at Hainault Country Park from about April 1984.  So far as we can tell jobs of wardens and park keepers were regarded as identical by both the Respondent and Trades Union representing the Respondent’s employees.

6.	We believe that the Hainault Country Park was not originally operated by the London Borough of Redbridge but it took over responsibility of the park and its employees some time in the late 1980’s.
7.	We have, in our papers, 2 contracts of employment made between the Respondent and the Claimant, who was formerly known as Shroeder, but has since changed his name to Wise.  The first of these is signed by the Claimant and is dated 28 March 1986.  It records that he is employed as a “forester “1””; the form is printed with spaces to be manually completed, for example to show the name of the employee, the description of his employment, the date of commencement of employment and the identity of any relevant national negotiating body.  Similarly there is provision for insertion of particulars as to rates of pay, persons responsible for grievance procedures, and so on.  However, at the end of the contract there is an additional clause 14 typed in:-

	“You will be employed at Hainault Forest or any such other place of employment in the authority’s service as may be required.”

8.	The second contract that we have is unsigned and undated, it appears to have been issued on 4 July 1990, it is in substantially similar terms to that of the agreement of the 27 March 1986 and the Claimant is now referred to as a “Countryside Warden”.  Paragraph 14 of the 1986 contract is not replicated.  There is, therefore, neither an express mobility clause in the second contract nor is there any written contractual provision as to the place of the Claimant’s employment.

9.	Difficulties arose between the Claimant and the Respondent in about 1998 when a Mr Paul Browne became the Claimant’s line manager.  Issues soon arose as to whether or not the Claimant should carry out patrols singly or only with another employee.  The Respondent wished to introduce a system whereby wardens would carry out patrols on their own.  The Claimant raised safety concerns and refused to patrol on his own; a patrol carried out by one warden alone was referred to as a “split patrol”.  The Claimant’s conduct led to his suspension in September 1999.  While other employees objected to the new scheme, only the Claimant displayed opposition, in such a way as to amount to unacceptable conduct requiring disciplinary action.  Indeed single patrols were accepted by the Trades Unions representing Mr Wise and his fellow employees.  The Claimant’s conduct was extreme and the Employment Tribunal, at paragraph 14, accepted the evidence from Mr Browne that from the commencement of his time as the Claimant’s manager in 1998 until January 2000, the Claimant had breached discipline and procedure on at least 15 occasions, none of which related to the issues of split patrols and that the Claimant had taken it upon himself to challenge long established practices and functions over which Mr Browne had no influence, such as the necessity to sign in and to wear the correct uniform.  This was seen by management as an attempt to specifically undermine Mr Browne’s authority as Mr Wise’s manager.  There followed a history of dispute, principally because Mr Wise resolutely refused to carry out instructions to patrol on his own.  This led to a series of disciplinary hearings.

10.	A disciplinary hearing took place on 25 September 1999; on this occasion no disciplinary sanction was applied.  On 10 November 2000 a second disciplinary hearing took place.  Although it was accepted that the Claimant had legitimate safety concerns in relations to single patrols and had failed to approach the problem through an agreed mechanism, no disciplinary sanction was deployed in this regard.  However, the Claimant was given a verbal warning about his future conduct having regard to allegations that he regularly failed to recognise the authority of his manager, Mr Browne.  The Claimant was warned that the likely consequence of further misconduct would be more serious disciplinary action.  Mr Cuthell, the head of Cleansing and DSO services who chaired the second disciplinary hearing was particularly concerned about the clear animosity the Claimant had shown towards Mr Browne.  The Employment Tribunal had this to say at paragraph 16:-

	“This Tribunal has also noticed the clear animosity which Mr Wise to this day shows towards Mr Browne.  This animosity is clearly shown in a letter produced by Mr Wise himself.  It shows that even in October 1998, in a letter to Mr Browne, Mr Wise was being rude, if not down right insubordinate.  This was only 2 months after Mr Browne had started.  It is also apparent from Mr Wise’s resignation letter in February 2002 that he had had no respect for Mr Browne from the very first time he had set eyes on him.”

11.	On 31 October 2000 a third disciplinary hearing took place as a result of the Claimant again refusing to carry out single patrols.  The Employment Tribunal considered that the Claimant had been given a lawful and reasonable instruction which he should have obeyed.  He was given a 2 years written warning and appealed within the Respondent’s internal disciplinary process.  His appeal was unsuccessful.

12.	Mr Wise continued to refuse to carry out patrols on his own.  There followed an attempt to move the Claimant to Valentine’s Park but the Claimant refused to go; he maintained that the proposed transfer was punitive.  The Respondent was unwilling to have the Claimant return to Hainault Park when he refused to undertake single patrols.  The Employment Tribunal found at paragraph 19, “that while at Valentine’s Park the Claimant would undertake duties similar to those he was required to carry out at Hainault Forest Country Park.”  

13.	He was subjected to a further disciplinary hearing for refusing to carry out single patrols, but he did work for approximately 1 week at Valentine’s Park, mainly working on his own but he went sick after 1 week and did not return to work prior to the disciplinary hearing which was held on 2 and 4 July 2001.  The result of the disciplinary hearing was that the Respondent took the view that the Claimant’s conduct in refusing to carry out lone patrols at Hainault Park was so serious as to warrant his dismissal and he was dismissed with 12 weeks notice, the last day of employment being 30 September 2001.  During that period the Claimant was to be required to work at Valentine’s Park.  However he remained on sick leave and returned to work at neither Valentine’s Park nor Hainault Country Park.  The Claimant appealed against the decision to dismiss him and his appeal was heard by a Members’ appeal panel on 20 November 2001 which allowed his appeal against dismissal and provided he should be reinstated.  The Respondent’s chief leisure officer, Mr Nigel Burch wished to consider the appropriate way forward after the decision to reinstate the Claimant.  He took advice from the Respondent’s human resources department which advised that it was permissible to transfer the Claimant to another park where he would retain the same title as he had at Hainault Forest and where he would be carrying out essentially the same duties under exactly the same terms and conditions.  Mr Burch was also informed that when the Claimant had worked at Valentine’s Park he had worked well there and seemed happy to lock up the park gates on his own.  Accordingly, Mr Burch wrote to the Claimant instructing him to return to work on 26 November at Valentine’s Park.  The Employment Tribunal was satisfied that the reason that the Claimant was asked to work at Valentine’s Park was because it was felt his relationship with Mr Browne had completely broken down.  Mr Burch considered it would have been improper to return the Claimant into a working environment knowing that there was a real risk of further difficulties arising for the Claimant Mr Browne and the Park itself.  The Employment Tribunal found at paragraph 24:-

	“Valentine’s Park is a pleasant working environment and the duties were not dissimilar to those Mr Wise would have carried out at Hainault Forest Country Park.  Mr Wise would have retained both his job title and his current wages had he reported for work at Valentine’s Park…..Work at both parks involves litter picking, generally keeping an eye on things, opening and closing gates and dealing with public enquiries.  The only difference at Hainault Forest was that, in addition to those duties, it involved actual physical work such as fence repairs, work to trees and other matters.”

14.	The Claimant, however, refused to work at Valentine’s Park and did not report for duty there.  The stalemate continued until after Christmas 2001 when Mr Burch on 9 January 2002 considered he had no option but to suspend the Claimant’s pay.  The Claimant was told his pay would be reinstated with effect from his first day of service at Valentine’s Park.  All attempts to negotiate a satisfactory outcome broke down because the Claimant insisted on returning to Hainault Park.  He did at one time suggest he was willing to carry out single patrols but he told the Employment Tribunal that he was bluffing – see paragraph 26.  Indeed he actually reported for work at Hainault Forest Country Park on 24 January, contrary to Mr Burch’s instructions and he refused to work at Valentine’s Park.  On 4 February 2002 he resigned and claimed he had been constructively dismissed and that his dismissal was unfair.  

15.	We note before leaving the factual background that the Claimant accepted that park keepers from other parks would, when occasion arose, be required to work at Hainault Forest Country Park.  

16.	Mr Wise submitted to the Employment Tribunal that throughout the history of the matter since 1998 he had been the reasonable party.  The Employment Tribunal disagreed and concluded “indeed, we think that the situation is the other away round”.

The decision of the Employment Tribunal
17.	We have summarised the factual background as established by the Employment Tribunal.  The Employment Tribunal went on to correctly direct itself in relation to constructive dismissal and rejected all the Claimant’s allegations as to unjustified disciplinary hearings and punishments and extremely unfavourable treatment at the hands of his managers.

18.	The submissions in the present appeal have largely centred on the decision to transfer the Claimant to Valentine’s Park.  The Employment Tribunal had this to say at paragraph 40:-

	“In our judgment the instruction to work at Valentine’s Park was a legitimate instruction.  Though the second contract did not contain an express mobility clause, in our judgment such clause was implied, both due to custom and practice and to give business efficacy to the agreement.  We accept the evidence of the Respondents that it was standard practice to move park-keepers within the Borough from one park to another.  Also we think if the officious bystander had been asked whether the second contract should contain such a term, knowing of the first, he would have said “of course”.  Neither Mr Wise nor his union representative had ever challenged the right to send him to Valentine’s Park.  The objection which Mr Wise made was that it was a punishment and not that there was no right to send him there.  Even if there were not a term as to mobility, we do not consider that the direction to work at Valentine’s Park was a breach of contract.  Mr Wise had refused to recognise the authority of Mr Browne from as long ago as 1998.  It was Mr Wise’s conduct which had brought about the irretrievable breakdown in the relationship between him and Mr Browne.  In our judgment the Respondents would have been entitled to require Mr Wise to move to another park within the borough rather than impose a more severe punishment upon him such as dismissal.”

19.	The Employment Tribunal also found at paragraph 41 that after his suspension the Claimant had affirmed his contract of employment by attending at Hainault Forest Country Park on 24 January.

The grounds of appeal
20.	The grounds of appeal as limited by Cox J were as follows.

(1) That the Employment Tribunal was wrong to find that there was an implied mobility clause in the Claimant’s contract of employment.  There was no evidence as to custom and practice and the implication of such a clause was not necessary for the purposes of business efficacy and that officious bystander test was irrelevant.

(2) The Employment Tribunal had incorrectly applied the law as to waiver.

(3) The Employment Tribunal failed to consider the risk to the Claimant at Valentine’s Park.

(4) The Employment Tribunal took account of an irrelevant consideration, namely, that the Claimant had failed to recognise the authority of Mr Browne in determining whether the instruction to work at Valentine’s Park was a legitimate instruction and (5) the Employment Tribunal was wrong when considering whether the Respondent had been in breach of the implied term of trust and confidence, it took account of earlier breaches by the Claimant.  

Consideration of the grounds of appeal
(1) implication of terms
21.	Terms may be implied into a contract to give effect to the presumed intention of the parties.  The general rule is that terms may be implied to give business efficacy to a contract if the implication of the term is necessary to give business efficacy to the contract.  Necessity rather than reasonableness is the touchstone.  Alternatively a term may be implied where it represents the obvious but unexpressed intention of the parties.  The law in this regard is not in dispute and reference can be made to the current edition (29th) of Chitty on contracts paragraph 13-04-13-09.

22.	So far as relevant to this case a term may be implied where it is obvious, and also where there is a general usage or custom provided that that usage or custom is not inconsistent with the terms of the contract.  The usage or custom must be notorious, certain and reasonable and more than a mere trade practice.  Helpful discussion as to the implication of terms as a result of custom or practice and to contracts of employment is to be found in Henry v London General Transport Services [2001] IRLR 132.  Once it is established that there is a reasonable, certain and notorious practice, it is to be presumed that the term thus supported represents the wishes and intentions of all parties concerned; see Lindsay J at para 30.

23.	It is perhaps significant to point out that until the service of further and better particulars on 27 August 2002, no point was ever taken by the Claimant or by his Trades Union, and there was no contractual right to transfer the Claimant from Hainault Country Park to Valentine’s Park.  At no time during the course of the disciplinary proceedings or prior to his resignation had he or his Trades Union ever sought to argue that the Respondent was not entitled to transfer him.  This obviously has a bearing on issues as to the notoriety of the relevant custom and practice.

The Claimant’s submissions on the implied term
24.	In his skeleton argument the Claimant sought to reopen the question as to whether he had been in breach of contract in refusing to carry out single patrols.  This is an argument not open to him on the Notice of Appeal as allowed by Cox J.

25.	He also has sought to exclude reference to the 1986 contract claiming that it had been doctored.  Again this is not an argument open to him on this appeal.

26.	 Mr Wise then submitted there was no sufficient evidence of any custom and practice as no Country Park Warden had ever been moved.  The Employment Tribunal had found that it was standard practice to move park keepers, but this did not apply to his position as he was not a park keeper.  He drew attention to the witness statement of Mr Burch to the effect that the Respondent was considering changes to produce a more flexible work force as showing that Mr Burch did not consider there to be flexibility at the time of his transfer to Valentine’s Park.  Mr Wise also submitted that “if there was a mobility clause it could have no effect because Hainault Forest Country Park was the only place that employed wardens and there was no cross over between wardens and park keepers”.  Mr Wise accepted that he had not raised the absence of the contractual right to transfer him during the course of his employment with the Respondent.  When asked why this was he said that this was because “he had better reasons for objecting to the move, i.e. there were no grounds to move me.”

The Respondent’s submissions on implied terms
27.	Ms Murphy, who appeared on behalf of the Respondent, submitted that there was ample evidence on the facts to support the Employment Tribunal’s conclusions.  The Employment Tribunal at paragraph 40 had accepted that it was standard practice to move park keepers within the borough.  Mr Burch had given evidence, he had been advised by the personnel department, it was permissible to transfer Mr Wise to another park where he would retain the same title as he had at Hainault Forest and where he would be carrying out essentially the same duties under exactly the same terms and conditions.  He considered it was clear that country wardens could be deployed elsewhere where there was a service based need to do so; that evidence was neither contradicted nor challenged.

28.	Mr Robins, the Respondent’s employment relations manager, gave evidence that mobility was a standard arrangement within Redbridge; that evidence was neither rebutted nor the subject of cross examination.  Mr Buttress, the Parks and Countryside manager had given evidence that he considered the Claimant could be asked to work anywhere within the borough and had indeed written to the Claimant to that affect.  Mr Browne had given evidence that he understood it was possible to move countryside wardens to other parks as park keepers had been moved to the country park on previous occasions and Mr Wise had himself been advised to work at Valentine’s Park instead of Hainault Country Park.  Further he had said:-

	“Given the nature of the role of park keepers and wardens, it is essential that they can be transferred to any park to ensure that all of the borough’s parks can operate properly at all times.”

29.	At no time did the Claimant suggest that his contract of employment was different to that of his colleagues.  Neither the Claimant nor his union representative ever asserted that there was an absence of a contractual right to move the Claimant as a service need arose.  Accordingly both the business efficacy test and the officious bystander test would be met.  

Ground 2 waiver
Claimant’s submissions
30.	Mr Wise submits:-
	“It is argued that the ET were drawn away from the poignant issues i.e. the reasons behind Mr Wise’s non-acceptance of the variation of his contract, which after all he was dismissed over.  It is submitted that the ET erroneously focused upon a recent fabricated, exaggerated, dubious issue of incompatibility which was suddenly raised by Mr Burch minutes after the Claimant’s (as I see) reinstatement and is nothing more than red herring as far as the unfair dismissal was concerned.  

He relied upon Post Office v Roberts [1980] IRLR 347, a decision of the EAT to the effect that continuing to work while complaints are investigated cannot amount to a waiver.  There was in any event, a continuing breach by the Respondent in relation to the unacceptable variation of his contract.  Had the Claimant not attended he would have been kept in limbo without pay.  It was unreasonable for the Respondent to behave in the way that it had.

The Respondent’s submissions on waiver  
31.	It was submitted that the waiver point only arose if the Claimant’s submissions in relation to the implied terms succeeded.  In relation to waiver the Claimant had not only presented himself for work on 24 January 2005 at Hainault Forest Country Park (contrary to instruction) but also attended the disciplinary hearing the following day.  Further even had there been breaches of contract on the part of the Respondent in relation to the implied term of trust and confidence, the Claimant’s pay was suspended on 9 January 2002 and his resignation was on 4 February 2002.  The Employment Tribunal found that there was a contractual entitlement to suspend pay.  The attendance at Hainault Forest Country Park was on 24 January.

Ground 3 
Failure to consider risk
32.	The Claimant’s submissions were directed to his complaints that the Respondent should not have disciplined him for his conduct at Hainault Forest Country Park for refusing to undertake single patrols and in relation to his complaints about the conduct of Mr Browne.  The Employment Tribunal, it is said, should have had regard to his safety concerns.  In his statement prepared for the disciplinary proceedings on 26 June 2001 (Claimants bundle page 81) he had said:-

	“There is an horrendous history of assaults and associated problems of control within the other parks in the Borough of Redbridge, of which can only get worse.”

He accepted he had told the Respondent that he was willing to undertake single patrols, but he told us that he was only prepared to undertake single patrols at Hainault Forest Country Park.  (We note that he told the Employment Tribunal that what he had told the Respondent was a “bluff”.)

33.	He challenged the legality of collective agreement dealing with single patrols that had been approved in negotiations between the Trades Unions representing the Respondent’s employees and the Respondents.  We note at this point in time that the Employment Tribunal at paragraph 9 had found that senior branch officials of both unions involved had endorsed the split patrolling practice as negotiated with various revisions and compromises.  The Claimant was the only person who had rejected the change to working practice and submitted that these were not normative agreements but were agreements “to an utter degrading of safety and increased danger to the warden’s job”.  In his skeleton argument at page 18 Mr Wise states that the changes in working practice were brought about by way of “deceit/threats and use of disciplinary action against him” and that actions were taken against him to serve as a warning and example to others “during the process of forcing the changes through, the applicant contends that such actions represented at the time an unlawful action…”. 

Failure to consider risk, Respondent’s submissions
34.	It was submitted that the changes in working practice had clearly been agreed by the Trades Unions.  It does not appear to have been argued before the Employment Tribunal that there was a safety issue.  The recommendations in relation to single patrols had already been put in place; see the decision of the Employment Tribunal at paragraph 26.  The breach now alleged was not referred to in the Claimant’s further and better particulars.  His objection to the move was not on health and safety grounds but that it was a punishment; this is apparent from the decision of the Employment Tribunal at paragraph 40.  He told the Employment Tribunal that it was retaliation.  There was, accordingly no issue before the Employment Tribunal as to whether asking the Claimant to work at Valentine’s Park raised any issues as to a health and safety risk.  Single patrolling was a recognised practise at Valentine’s Park and had been approved by the Trades Unions.  The Claimant had worked at Valentine’s Park for 1 week without any complaints as to health and safety and had put forward no case to the Employment Tribunal that there were health and safety issues at Valentine’s Park.  

Ground 4 
The Employment Tribunal was wrong to take into account the breakdown in relationship between him and Mr Browne
35.	Mr Wise submitted that the refusal to accept changes in working practice was not evidence of or equivalent to a breakdown of his working relationship with Mr Browne.  He complains he was subject to a disciplinary sanction that altered his job description.  He maintains that the Respondent failed to comply with disciplinary procedures and that his move was “capricious” and therefore wrongful; he referred to the decision of White v Reflecting Roadstuds [1991] IRLR 331.  The evidence, submitted Mr Wise did not justify the findings.  He made various submissions in relation to the evidence and submitted that the findings were wrong.  We do not propose to set these out because they are outside the terms of his Notice of Appeal as permitted by Cox J.

36.	He referred to a letter dated 25 April 2001 from Mr Buttress, which Mr Wise pointed out, informed him that he could return to Hainault Forest Country Park at any time if he agreed to carry out his single person patrols.  We note, however, that the letter continued:-

	“For you to return to the Country Park while still refusing to carry out this duty however, will I feel provoke tension at the park, which at this stage I wish to avoid.”

37.	Mr Wise referred to the decision in Turner v Vestric [1981] IRLR 23 and submitted that the Respondent should have taken steps to improve the Claimant’s relations with Mr Browne.  We do not see how this is of real assistance because this is not a case in which the Respondent dismissed the Claimant and the Employment Tribunal had found that the reasons for separating the Claimant from Mr Browne were valid.  Mr Wise then went on to point out that in his evidence Mr Buttress had made clear that the decision to move him was based on his refusal to do single patrols.  We pointed out to the Claimant that the Trades Unions, and everyone else had agreed that such patrols were appropriate but he alone had refused.  He responded that it was necessary for the matter to be investigated because the Employment Tribunal had blackened his character and sought to psychoanalyse him.  

Respondent’s submissions on relationship between Claimant and Mr Browne and its relevance
38.	It was submitted the Employment Tribunal found that the Respondent was entitled to move the Claimant to Valentine’s Park.  It also considered whether in the absence of a mobility clause it would have been a breach of contract to transfer the Claimant to Valentine Park and it found that it would not.  The Claimant’s case throughout was that the move was a punishment.  It was not alleged by him at the time of the instruction that it was unsafe.  It was accordingly necessary for the Employment Tribunal to consider why the Claimant was moved to Valentine’s Park and it commented on why it found the relationship between Mr Browne and the Claimant had irretrievably broken down.  The Claimant’s attitude to Mr Browne was part of the Respondent’s reasoning in deciding whether he should be transferred.  It was not an issue on the Claimant’s own case which was that it was a punishment.  The Employment Tribunal was entitled to consider the Respondent’s reasons for the transfer not being a punishment.  This did not mean that the Employment Tribunal failed to focus on the Respondents alleged breach of contract. 

39.	Even if it were a breach of contract to move the Claimant to Valentine’s Park, the Claimant’s evidence was that he was simply bluffing when he said he was prepared to accept single patrols at Hainault Forest Country Park.  Accordingly the Respondent would have had to impose a more severe sanction such as dismissal which the Employment Tribunal found that the Respondent had tried to avoid by the transfer of the Claimant.  The relationship between the Claimant and Mr Browne had completely broken down.  It was not simply a question of the Claimant refusing to accept Mr Browne’s authority.  This was apparent from paragraph 23 of the decision.

40.	It was just not open to the Claimant to challenge the reason why the Respondent had decided to send him because findings had been made by the Employment Tribunal which were justified on the facts.  Further, it was difficult to see, so it was submitted, why the breakdown in relationship between the Claimant and Mr Browne should have been irrelevant to the decision to transfer the Claimant to Valentine’s Park. 

Ground 5
The Employment Tribunal was wrong to consider earlier breaches of contract by the Claimant and should have concentrated on whether the Respondent was in breach of the implied term trust and confidence
Claimant’s submissions
41.	Mr Wise again complained of breaches of contract by the Respondent and maintained that it was the Respondent that had broken the duty of trust and confidence by making it impossible for the Claimant to do his work.  The breaches included suspension of his pay, delay in dealing with disciplinary proceedings, failure to provide him with a safe system of work and various other matters.  All of these matters are outside the scope of the Notice of Appeal and are contrary to findings of fact made by the Employment Tribunal.

Respondent’s submissions
42.	It was submitted the Employment Tribunal did not take into account inappropriately or place significant weight on the Claimant’s prior breaches of contract in determining whether the Claimant was in fundamental breach of his contractual obligations.  At paragraph 44 of this decision the Employment Tribunal was responding to Mr Wise’s submissions that since 1998 he had been the reasonable party and the Respondents the unreasonable party.  The Employment Tribunal concluded that the true position was the other way around.  On the findings made by the Employment Tribunal the Respondent had not been in breach of contract but the Claimant had been.  Even had the Claimant not affirmed the contract, there were no earlier breaches of contract for him to rely upon.  It was also pointed out to us that the reason the Claimant gave for his resignation was not by reason of any breach of contract but because he did not want a further disciplinary hearing; see the finding of the Employment Tribunal at paragraph 39.

Conclusions
Ground 1 
Construction of the agreement
43.	It seems to us that it is necessary in any event to imply some term into the 1990 agreement which is incomplete and unsigned and does not identify where the Claimant was to carry out his work.  Some term therefore, must be added.  The uncontested evidence was that mobility clauses were contained in the contracts of all the Respondent’s employees.  It was, in our opinion and in any event, there was ample evidence to support the finding of the Employment Tribunal as to custom and practice.  It is clearly of significance that at no time until relatively late in the proceedings before the Employment Tribunal had the Claimant or any Trade Union representative on his behalf ever suggested there was no contractual right to move him.  It was clear on the evidence that park keepers and rangers or wardens were treated as interchangeable by both the Respondent and Trade Unions, and against that background it seems to us that had an officious bystander been asked what the terms were of the Claimant’s contract, so far as concerned mobility, he would have said “as in the previous contract” and in accordance with the contracts of all other employees. 

44.	In our opinion the right to transfer the Claimant arose not only because it was obvious but also by virtue of custom and practice.  That was the intention the parties having regard to the background we have mentioned and in particular the evidence that mobility was the standard practice.  The decision of the Employment Tribunal in this regard was correct.

Ground 2 
Waiver
45.	Strictly speaking, this ground of appeal does not arise because we are satisfied there was no breach of contract.  Had we taken a contrary view we would be minded to accept the Respondent’s submissions in this regard and conclude that the matter had been dealt with correctly by the Employment Tribunal.

Ground 3 
Failure to consider risk
46.	Again we agree with the Respondent’s submissions.  The Claimant’s submissions were not relevant to issues raised in the Notice of Appeal.  We are not concerned with the reasons for his dispute with his team leader Mr Browne.  The nature of his dispute with Mr Browne has been the subject of findings of fact by the Employment Tribunal and it is not for us to revisit these matters.  Further, we are perfectly satisfied that the safety issues had been addressed, as found by the Employment Tribunal.  The way in which split patrols were to be carried out had been agreed by the Trade Unions and there is an express finding by the Employment Tribunal that recommendations made in relation to lone patrolling had all been honoured; see paragraph 26 of the decision.

Ground 4 
Relevance of Claimant’s refusal to accept the authority of Mr Browne
47.	We again broadly accept the Respondent’s submissions.  The Claimant’s case was that he was transferred by way of a punishment.  It was accordingly necessary to ascertain why the Respondent had been sent to Valentine’s Park and the Employment Tribunal commented on why it found the relationship had irretrievably broken down.  It was satisfied that the transfer was not a punishment and accepted the Respondent’s reasons for the transfer and its entitlement to redeploy the Claimant.  The Respondent was entitled to redeploy the Claimant.  It is difficult to see why his relationship with Mr Browne was in any sense irrelevant, bearing in mind his continued refusal to accept Mr Browne’s authority or to undertake single patrols.  In any event as the Respondent pointed out if he had not moved to Valentine’s Park it is likely that there would have been a more severe punishment, such as dismissal.

Ground 5 
Relevance of whether the Claimant was in prior breach of contract in determining if the Respondent had undermined the relationship of trust and confidence
48.	Broadly we accept the Respondent’s submissions.  We are unable to accept that the Employment Tribunal relied upon any prior breaches by the Claimant.  However, even if it did surely the conduct of the Claimant must be relevant in determining an issue as to whether the Respondent was in breach of its duty by undermining the relationship of trust and confidence.  After all, the Claimant had continued a long running and unmeritorious campaign against single patrols and on the findings of the Employment Tribunal had been persistently in breach of contract.  On the findings of the Employment Tribunal it was the Claimant who was in breach of contract not the Respondent.

49.	For these reasons none of the grounds of appeal succeed and the appeal is therefore dismissed.