Dobie v Burns International Security Services (U.K.) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE PARKER,THE MASTER OF THE ROLLS |
| Judgment Date | 14 May 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0514-1 |
| Docket Number | 84/0196 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 1984 |
[1984] EWCA Civ J0514-1
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Slade
and
Lord Justice Parker
84/0196
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice.
MR. TIMOTHY KING (instructed by Messrs. E. Rex Makin & Co.) appeared on behalf of the Appellant.
MR. DAVID GEEY (instructed by Messrs. Bermans) appeared on behalf of the Respondents.
This is an appeal by Mr. Dobie from a majority decision of the Employment Appeal Tribunal which itself affirmed the unanimous decision of the Industrial Tribunal sitting in Liverpool that he had not been unfairly dismissed.
The basic facts were as follows. Mr. Dobie was employed by Burns International Security Services (UK) Limited, the well known security company, as a senior security officer at Liverpool Airport. Liverpool Airport itself is a municipal airport owned and controlled by the Merseyside County Council.
Under the contract between Burns and the airport authority it was provided that:
"The Contract shall be terminated at any time for failure to provide the standard of service required by Merseyside County Council. No compensation shall be paid for such termination."
And that:
"Merseyside County Council reserves to itself the right to approve, or otherwise the employment or continued employment of any member of the Company at the Airport."
Friction arose between Mr. Dobie and the chief security officer, who was an employee of the county council. There were two incidents, the details of which do not matter for the purposes of this judgment. I am entirely prepared to assume that they arose through no fault of Mr. Dobie. The Merseyside Council said that he must be withdrawn from service at the Liverpool Airport. That created a problem because, although Burns are a national organisation, it appears that there was no other comparable work in the area. In those circumstances, Burns decided to offer him an alternative but lower paid job in the neighbourhood but not at the airport.
As a matter of law—and it is not disputed—that offer of alternative employment at a lower wage in a different place amounted to a dismissal, although of course it would have been open to Mr. Dobie to have accepted that as a variation of his employment and he could have negotiated whatever terms he could have obtained from the firm. However, that was a dismissal, and the sole issue before the industrial tribunal was whether that was an unfair dismissal giving rise to a right to compensation under section 54 of the Employment Protection (Consolidation) Act 1978.
In answering that question, the industrial tribunal had to follow the well known procedure which is laid down by section 57, as amended. Section 57(1) provides that:
"In determining for the purposes of this Part, whether the dismissal of an employee was fair or unfair, 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) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."
It is common ground that the reason for the dismissal was that the Merseyside County Council were refusing to allow Mr. Dobie to continue to work on the airport and that Burns had no other directly comparable employment to which they could switch Mr. Dobie following that refusal. That was the reason. They next had to consider whether it was a reason which complied with section 57(1)(b). It was not a reason which fell within subsection (2). Most cases do fall within subsection (2). They relate, for example, to the capability or qualification of the employee or to the conduct of the employee and so on. This was an unusual case in which the employer was contending that this was "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."
In fairness to the industrial tribunal, let me say at once that I think this is a difficult statutory provision in the absence of rather careful study. I say that for this reason: certainly a layman might think that if the reason for the dismissal was substantial and of such a kind as to justify the dismissal of an employee holding the position which that employee held, that would be the end of the matter. Clearly the dismissal had been justified; it could not have been unfair.
The tribunal did not directly fall into that error, but certainly it was in the nature of an elephant trap which was awaiting them. Let me therefore spend just one moment in explaining how I construe that paragraph. I construe it as requiring the tribunal to consider the reason established by the employer and to decide whether it falls within the category of reasons which could justify the dismissal of an employee—not that employee, but an employee—holding the position which that employee held. Thus different types of reason could justify the dismissal of the office boy from those which could justify the dismissal of the. managing director.
The industrial tribunal—not very surprisingly, I think—came to the conclusion that the pressure being exerted by the Merseyside County Council could have justified the dismissal of Mr. Dobie. But they then directed themselves as follows. They said:
"This is a case in which it is, perhaps, necessary to stress at this early stage what the functions of this Tribunal are; what it can do and what it must not attempt to do. The test which the Tribunal has to apply is, in the words of the Statute, whether the employer acted reasonably, and Section 57(3) of the Act…clearly directs the Tribunal to focus its attention on the conduct of the employer and not on whether the employee suffered any injustice; and the question has to be answered by reference to the circumstances known to the employer at the time of dismissal."
I then therefore turn to see what section 57(3) says. Section 57(3), which has been amended by the 1980 Act, reads as follows:
"Where the employer has fulfilled the requirements of subsection (1), then, subject to sections 58 to 62, 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."
On the face of it it is an astonishing proposition that in determining that question, namely whether the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee, in determining that question in accordance with...
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