Appeal No. EAT/1375/01/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 February 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR P GAMMON MBE
MR D NORMAN

MRS A GRANT	APPELLANT

PICKERING INTERFACES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS N CUNNINGHAM
(of Counsel)
Free Representation Unit
4th Floor
Peer House
8-14 Verulam Street
London WC1X 8LZ	
For the Respondent	MR M LANE
(of Counsel)
Instructed By:
Messrs Marshall Sutton Jones
Solicitors
9 Trinity Street
Colchester
Essex CO1 1JN	

MR JUSTICE BURTON (PRESIDENT):

1	This is the hearing of an appeal by Mrs Grant, who at the time of her dismissal by the Appellant had not yet become Mrs Grant, against the unanimous conclusion of the Employment Tribunal at Bury St Edmunds on 11 September 2001, that she was not unfairly dismissed by Pickering Interfaces Ltd, the Respondent, and that her complaint of discrimination on the grounds that she was a part-time worker was also dismissed.

2	The grounds of appeal were amended provisionally, pursuant to an Order of the Employment Appeal Tribunal and have, in the event before us, come in the form of two paragraphs;  the first paragraph subject to five sub-paragraphs.  Of those five sub-paragraphs at paragraph 1, the third was an allegation that the Tribunal had erred in law in failing to consider the position before the employer, the Respondent in this case, made its request or instruction to the Appellant, to which we shall refer, and, in particular, in failing to consider whether the Respondent should have consulted the Appellant before making that request or instruction.  

3	This is a point that was not run below, as Ms Cunningham, who has argued the matter most ably on behalf of the Free Representation Unit, freely accepts that, in those circumstances, in order to be runnable before this Tribunal, it would have to pass the stringent tests laid down by Kumchyk v Derby County Council [1978] ICR 1116.  Ms Cunningham has accepted that it cannot surmount those tests.  It was a point which, if it had been made, would have been a matter of some contention, namely, as to whether an alleged duty to consult could arise in such circumstances, quite apart from exploration by way of evidence, and it is clearly impossible for it now to be run for the first time on appeal and so, consequently, the provisional leave which was given, in the sense that it had to be, in any event, reconsidered before this Tribunal, must result in the refusal of leave to amend in relation to that ground.

4	That left the rest of the Notice of Appeal, and no objection was taken by Mr Lane of Counsel who has appeared before us, as he did below, on behalf of the Respondent, to our granting leave to amend in respect of the balance of it.  There were, therefore, effectively four grounds of challenge to the Tribunal’s Decision, two of which were, as will appear, wholly intertwined.

5	The first ground related to the circumstances in which the Respondent was requiring the Appellant to transfer to work in the next-door premises for an associated company, and it is set out, in paragraph 1(a) of the Amended Grounds of Appeal, as follows:

“(a)	in finding that the order that the Appellant refused to obey was a lawful order under her contract, it failed to consider the relevance of evidence that the Respondent proposed to cut the Appellant’s pay and/or that it proposed to dismiss and then re-engage her.”

And, there is a sub-paragraph 1(e), which reads as follows:

“(e)	it [the Tribunal] failed to have regard to evidence that the Respondent proposed to cut the Appellant’s pay and/or that it proposed to dismiss and then re-engage her in its finding that the Appellant would not suffer a detriment by reason of the proposed move.”

This, relating to the allegation of discrimination in respect of being a part-time worker can be described in broad terms as “the terms of employment point”.

6	The second ground is constituted in paragraph 1(b) of the Amended Grounds of Appeal, and it reads as follows:

“(b)	in finding that a disciplinary hearing or any further procedure before dismissal would have been futile it relied on its erroneous finding that the order that the Appellant refused to obey was one that the Respondent was contractually entitled to give.”

That is what one might call “the variation of contract” point, to which we shall return.

7	The third ground is a direct attack on the finding that there was no discrimination in respect of the Appellant’s position as a part-time worker.  That is set out, in paragraph 1(d) of the Amended Grounds of Appeal, and it reads as follows:

“(d)	it found that there was objective justification for the Respondent to base its decision to require the Applicant to move to another department on her status as a part-time worker without identifying what the alleged justification was or giving any indication of the reasoning that led it to the conclusion that it was sufficient.”

8	Ms Cunningham accepts that, if she fails on the “terms of employment” point, then this argument is entirely moot and academic, because, in order for there to be discrimination on the part-time worker basis, there needs to be detriment, and there would have been, on the findings of the Tribunal, no detriment, so this ground would not arise.

9	Fourth, and finally, there is included in the Notice of Appeal a challenge to paragraph 21 of the Tribunal’s Decision, which is effectively as follows:

“21	We indicate that if on any of the above grounds we are wrong and that any of the applicant’s claims succeed in law, by reason of her conduct it would not be just and equitable to award any compensation.  At the risk of repeating ourselves we indicate that the employer could have dismissed and could have dismissed on the spot because of the way the applicant behaved.” [and then, for the moment, I shall leave out the details of the rest of the paragraph].

This is challenged, as follows, in the Grounds of Appeal, paragraph 2:

“2	The tribunal further erred in setting out its alternative conclusion (at paragraph 21) that the Appellant’s behaviour was such that it would not have been just and equitable to award any compensation even if she succeeded in any of her claims without giving any consideration to the fact that, on that hypothesis, her behaviour would have to be seen as a response to an unlawful and/or discriminatory demand by the Respondent.  If the Appellant wins on any of her primary grounds of appeal, therefore, the question of remedy should be considered afresh.”

10	Plainly, again, that only arises if the Appellant succeeds on one or other of the grounds.  

11	We turn to summarise the facts in the case, as found by the Employment Tribunal.  The Appellant had worked as an electronic assembler for the Respondent Company, Pickering Interfaces Limited, from November 1998.  She was about to get married, and has subsequently got married to Mr Grant, who also worked for the Respondent Company.  

12	The Respondent Company, Pickering Interfaces Limited, was, and indeed is, owned by a Mr Keith Moore as majority shareholder and Managing Director.  There is another Company, Pickering Electronic Ltd, of which he is also, in material terms, the owner.  That Company used to share, until 2000, the same building, and in 2000 moved into the next door building, and thus was physically separated in that regard but, clearly, was wholly proximate geographically.

13	Twenty-five people only, it seems, at the time were employed by the Respondent Company, while something in the region of 200 people were employed at Pickering Electronics Limited.  Unfortunately, there was a substantial downturn in the affairs of Pickering Interfaces Ltd, and economic necessity resulted, as the Tribunal found, in decisions being needed to be taken, in the interests of the business.  One of those decisions related to the Appellant.

14	Mr Johnston, the Production Manager of the Respondent, and Mr Moore decided, as the Tribunal found, to move the Appellant, on a temporary basis, across to Pickering Electronics, physically to work there;  she had worked there some ten years before.  The Tribunal accepted and found, in paragraph 6 of its Decision, the following:

“That whilst she was not in any sense a bad worker, she was somewhat disruptive, perhaps a little talkative and she was not as versatile as the other workers.”

15	She was a part-time worker, and most, or all, of the other workers were full-time workers, but the Tribunal found that it was not on that ground that she was transferred, but as was put in paragraph 18 of the Decision, “for reasons relating primarily to her abilities and her behaviour over a period of time”.  The Tribunal also found, contrary to the case that was put on behalf of the Appellant at the Tribunal by Miss Eustace, who acted on her behalf, that the proposed transfer had nothing whatever to do with her engagement to Mr Grant, and her impending marriage.  The Tribunal found, in paragraph 8:

“The applicant was seen by Mr Johnston on 30 November.  He explained to her that she was required to work for Pickering Electronics Ltd because of the downturn in orders.  She was told that she was selected because she previously worked there and she was regarded as the least able and versatile of the production workers.  It was also pointed out to her that her behaviour although not particularly bad, was significantly worse than others.”

As the Tribunal found:

“She [the Appellant] refused then, she refused during the remainder of her employment and [as the Tribunal points out] from that day to this as far as we can tell she is firmly of the view that she was entitled to refuse.”

16	She left at about 12 noon on that Thursday, and there was a further event on Friday 1 December.  The Tribunal find, in paragraph 9 that:

“She came to work and started to cause trouble.  She read a prepared statement to her workmates and generally adopted [what they described as] a high profile.  She was asked to stop.  Mr Moore was contacted and at 10 o’clock Mr Johnston and Mr Moore went with her to the canteen to discuss once more why she was required to work at Pickering Electronics Ltd.”

17	There was then a very lengthy meeting, between the Appellant and Mr Johnston and Mr Moore, which the Appellant, unknown to Mr Johnston and Mr Moore, taped.  The Tribunal was very critical of the secret tape recording, by the Appellant of that meeting, and a subsequent meeting, but, in the event, found the transcript which, so far as the first meeting is concerned, was confirmed to be accurate by Mr Johnston, helpful in reaching its conclusions that the employer had acted reasonably.  

18	We have read the lengthy transcript, at pages 61 to 65 of our bundle, and it is plain that over and over again Mr Johnston and Mr Moore are seeking to use arguments to persuade the Appellant that her interests would be best served, and she would not suffer, by moving next door to work, where she had already previously worked at electronics, and giving her every opportunity to reconsider her apparently intransigent stance, emphasising that they had no wish to spoil her imminent wedding and, indeed, just because of it, that they were hoping that she would agree and remain in their employment at the next door premises.  She refused.  She then, it appears, went over to Pickering Electronics, and had a further meeting with a Mr Graham Dale and others of Pickering Electronics, which lasted some 15 minutes, and of which there is also a tape.  

19	What occurred thereafter is summarised in paragraph 11 by the Tribunal, by reference to the Witness Statement of Mr Johnston, which they accepted, after hearing him give oral evidence both in-chief and cross-examined, as follows:

“Amanda Grant was asked to leave again, she refused stating that she would not leave until she received all her wages.  Amanda Grant was shouting and swearing obscenities at me, Keith Moore and Neil Ramsey another manager.  I asked Amanda Grant again to leave as she was upsetting all the other workers and Amanda Grant refused.  Amanda Grant demanded her right of entry to the first floor to collect her wages.  I asked her to leave the premises immediately.  This she totally ignored and proceeded on her way.  I followed her.  It was at this time that Kim Grant threatened violence to me if I went anywhere near her.  As all the parties present reached the top of the stairs I was physically jostled and verbally abused by Kim Grant.  Amanda Grant collected her wages and returned downstairs to collect her personal belongings and she went to her work desk and continued her verbal abuse.  Amanda Grant collected things from her desk in a physical manner pushing circuit boards and equipment off on to the floor and causing damage and also threw a hot cup of coffee that she had been carrying on the desk damaging more boards and cables.  Her actions were all deliberate.”

20	The Tribunal concluded, in the balance of their Decision, that in their judgment the employer would have been entitled to have dismissed on that ground, namely the ground in respect of disruptive behaviour alone, but pointed out in paragraph 14, as it is put, in fairness to Mr Lane and, indeed, to the Applicant, that that was not the way the Respondent was putting its case.  They summarised Mr Lane’s position as follows, in the last sentence at paragraph 14:

“Mr Lane confines himself to saying the reason for dismissal was the one relating to conduct and it was clearly gross misconduct in this case.”

The Tribunal’s conclusion, in paragraph 16, is as follows:

“We are satisfied that in all the circumstances of the case looking at section 98(4) of the Employment Rights Act 1996 this was a fair dismissal and manifestly so.  We do take into account the submissions of Miss Eustace but there has to be preliminary findings of fact in her favour before her submissions can succeed.  We have not found that the reason for dismissal had anything at all to do with the applicant’s relationship with Mr Grant.  The reason for the applicant’s dismissal was her refusal to obey a lawful order and her disruptive behaviour.”

21	The central paragraph, to which most attention has been concentrated before us, is paragraph 14, which begins as a reference to submissions of the parties, but, it is apparent, very quickly becomes a paragraph which contains, by reference to those submissions, the findings and conclusions of the Employment Tribunal.  We read it as follows:

“We turn to the submissions of the parties.  Mr Lane says quite simply and correctly that this is a case where the reason for dismissal is obvious.  It is gross misconduct.  She would not do as she was told.  She would not obey an order that was lawful, reasonable and in the scope of her contract of employment.  The order was clearly not unlawful.  She was not asked to do anything unlawful per se.  It was clearly overwhelming, obviously, in our view, reasonable.”

22	That, Mr Lane submits, contains two findings, of which further particulars are given in the balance of paragraph (1), that the order was within the scope of the contract of employment and (2) that in any event, it was a reasonable request, indeed, as the Tribunal finds, overwhelmingly reasonable.  The Tribunal continues as follows:

“She was in effect still working for Mr Moore.  She was working at premises next to where she was employed.  Her employer was not changing and she had worked in electronics before.  The fact that she did not want to work there is neither here nor there.  Was it within the scope of her contract of employment?  In our view yes of course, it was.  There was no reason at all why under the contract of employment she could not be asked, indeed made, to work in the premises next door, an associated company doing a similar sort of work.  The manner of her refusal was blatant, it was disruptive, it was designed to disrupt and that disruption itself would, in our view, have been ample reason to dismiss her.”

And, then the paragraph ends, by reference to the fact, as we have earlier indicated, that that point was not being taken directly by the Respondent.

23	We turn then to the grounds of appeal, as permitted to be run before us, i.e. not the one in respect of which leave to amend was refused.

The Terms of Employment point.

24	We have read out the grounds of appeal, and they depend upon an assertion that the Tribunal failed to take into account evidence that the Respondent proposed to cut the Appellant’s pay, and/or proposed to dismiss and then re-engage her.  As Ms Cunningham in the end was forced to concede that this is really a perversity argument, or nothing at all, although she did seek to put her case, as an alternative, on the basis of Meek v City of Birmingham District Council [1987] IRLR 250, an inadequate disclosure of reasoning.

25	It appears to us that this is a case in which there are plain findings of fact.  We have referred to the part of the Witness Statement of Mr Johnston, which the Tribunal specifically adopted in its Decision.  Also in that Witness Statement, and in his oral evidence no doubt, there was included a passage which confirmed, from his point of view, his intention that she would still be employed by Pickering Interfaces, and her rate of pay would stay the same and, indeed, he asserted that he had told that to her husband.  That founds, no doubt, the basis of the conclusion, in paragraph 18 of the Decision, as follows:

“The applicant’s terms and conditions were not changing at all.  She retained the same employer and she was retaining the same wages.  Indeed it was a cause of some concern that she would be rather better paid than other workers alongside her in the electronics part of the premises.”

26	The basis upon which Ms Cunningham has sought to assert that there was some evidence the other way before the Tribunal, is that which was referred to briefly at the preliminary hearing before this Appeal Tribunal, differently constituted, when the appeal was permitted to proceed.  This is, by reference, not to the transcript of the meeting with Mr Moore and Mr Johnston, who were the employing and dismissing parties, but of the second meeting, the one at which she also taped with Mr Dale and others, and it is apparent from the transcript of that other meeting that Pickering Electronics Ltd, not the employer, had indicated a concern about employing, or being asked to employ, the Appellant, because they were themselves employing people at different rates and, so far as they were concerned, the Appellant would have had to come down to the same rates as their own employees.  That was not the voice of her employer, as we have earlier indicated.  It is plain that the Tribunal accepted the evidence to the contrary of Mr Moore and Mr Johnston.  It seems that there was at least cross-examination of Mr Johnston, so far as concerns any suggestion that she might be caused to change employer, because there is recorded in the notes of evidence, which we have kindly been supplied by the Chairman, the following in relation to Mr Moore’s evidence:

“P I Ltd would remain her employer”

And also:

“We made it clear would remain employed.”

27	It would appear, therefore, that the point was put in issue, and Mr Moore repeated his position, which was accepted by the Tribunal.  In any event, if and insofar as some case was not put before the Tribunal, it would itself fall within the Kumchyk principle.  

28	We are entirely satisfied that there was a finding of fact by the Tribunal that there was to be no change of employer, and that there was to be a temporary transfer, physically, to next door, where the Appellant would be carrying on similar work, at exactly the same rate of pay and on the same conditions.  In the light of that finding, there is no case that could have succeeded at the Tribunal, and certainly none that could succeed on appeal, by way of a case that there was some repudiatory breach of contract, or that the order was unlawful on the basis that what was being threatened was a change of the terms and conditions of employment in relation to pay or conditions.  

29	Similarly, it has the effect, as Ms Cunningham has herself accepted, that there was no detriment in relation to the proposed action, such as to bring the Appellant within the ambit of the Part-Time Workers (Prevention Of Less Favourable Treatment) Regulations 2000, Regulation 5, which provides that:

“5(1)	A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker –
(a) as regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.”

30	There is, in our judgment, no way in which it could be suggested that such finding is perverse, in the light of the clear evidence available before the Tribunal, and the Tribunal plainly in our judgment gave sufficient reasons for its conclusion, those reasons being, of course, that they accepted the evidence to the effect of Mr Moore and Mr Johnston, which may not even have been in any material respect cross-examined, but insofar as it was, survived such cross-examination.  

The Variation of Contract point
31	We turn then to the second ground on which the decision is challenged, which became in the end the main course of attack.  Ms Cunningham submitted that the order, or request or instruction, by the employer, that the Appellant should work at the next door premises was not lawful, because it was not within, and thus was without, her contract of employment.

32	It is regrettable, as indeed the Employment Tribunal itself found, that the employer in this case is what one hopes to be one of those very rare surviving firms which operate without a written contract of employment, in breach of the provisions of the Employment Rights Act 1996, in that regard.  An employer who does not supply written terms of contract has only himself to blame, if he is then unable to establish what those terms are, quite apart, of course, from being proved in breach of the provisions, and thus to be looked at askance.  The Tribunal took that into account, and recognised that they were construing, unhelpfully, an oral contract of employment.  

33	What was submitted by Ms Cunningham is that, into that oral contract of employment there has to be implied, if the Tribunal is to be right in its conclusion that this instruction was within the terms of the contract of employment, an implied mobility clause, imposing upon an employee the duty to comply with a direction by the employer, even if that involves working at a different place of work.  That is, of course, normally an important protection for an employee who measures, when he or she accepts employment, how far he or she will have to travel to work, and, if there is then a change of place of working which causes a detriment in terms of ease, or indeed time, of travelling, then that is likely at least to raise an argument that the employee is not expected to comply with such an instruction.

34	Ms Cunningham submits that, if this was an instruction which was outside the terms of the contract of employment, then it was, in effect, a request for a variation.  That would create a very different animal in those circumstances, namely a refusal to comply with a request of variation, to a failure to comply with a lawful order, and one which cannot, or should not, be characterised as misconduct, gross or otherwise - even if accompanied by the kind of tantrum which, if one can use that expression in relation to what here occurred, did occur in relation to this Appellant;  particularly in the light of the apparent concession by Mr Lane, seemingly noted by the Tribunal, that the tantrum of itself, albeit that it did cause, it seems, both damage to property and disruption, and upset to fellow-employees, would not have been enough of itself to justify dismissal, and, indeed in that, even after that tantrum, the employer still gave a further opportunity to the Appellant to comply with the instruction, by sending a letter to that effect, indicating that she had until the following Thursday to attend for employment.

35	Mr Lane submits that the Tribunal found, and was entitled to find, that the instruction, or request, to work next door was within the contract of employment of the Appellant.  Alternatively, in any event, he draws our attention to authorities, to which we will turn in a moment, which show that there can still be dismissal for misconduct, in respect of a refusal of a reasonable request by the employer, even if that request is to do something which is outside, and thus would amount to a variation of the terms of, the contract.  The authorities, to which he refers us, are Aparau v Iceland Frozen Foods Plc [1996] IRLR 119, London Borough of Redbridge v Fishman [1976] ICR 569 and Farrant v The Woodroffe School [1998] ICR 184.  He submits that the case is extremely close to the facts of Farrant v The Woodroffe School, in which an Applicant, as part of a reorganisation of technical support services at the school at which he was employed, as a laboratory technician, was required to transfer from the Science Department and divide his time between other departments, and the Industrial Tribunal, as it then was, dismissed his complaint of unfair dismissal on the ground that, although the school was in breach of the Applicant’s contract of employment in removing him from laboratory work altogether, it had nevertheless acted reasonably.  Judge Peter Clark refers to the earlier decision in Redbridge London Borough Council v Fishman, at pages 194 following, and quotes the helpful dictum of Phillips P, in that case, at page 195 B.  The sentence in question from Phillips P’s judgment can be shortly repeated:

“Some dismissals are not unfair although the employer was not contractually entitled to dismiss the employee.”

Judge Peter Clark says this, at page 194 G:

“Where the conduct relied upon by the employer is the employee’s refusal to obey an instruction, the question as to whether that instruction is lawful, a critical question in a claim of wrongful dismissal, is a relevant but not decisive question when considering the reasonableness of the dismissal under section 98(4) in a case of unfair dismissal.”

The EAT in that case upheld the Tribunal’s decision that the dismissal was fair, albeit that the transfer in question, which the employee had refused, leading to his dismissal, was not one which under the contract of employment, the employer was entitled to insist upon.

36	We have read paragraph 14 of this Decision in full, and that deals, Mr Lane submits, with both of the two heads upon which he relies.  We turn first to the question as to whether this instruction was within the contract of employment of the Appellant.  We accept the submissions of Mr Lane that it elevates the question into too structured a form to put it on the basis of “is there an implied mobility clause on the facts of this case?”.  On the facts of this case it is better construed as being whether there was an implied term that the employer would be entitled to require the Appellant, while continuing to be employed on the same terms and conditions by the employer, to work temporarily at the premises next door of an associate company?  That, of course, would not be a strange term to include in a contract of employment, had one been written, by a company which had an associate company, which at the time that this Appellant was originally employed in 1998, actually shared the same building, albeit that two years later it moved next door.

37	We accept Mr Lane’s submission that, on the facts of this case, it is not a question of mobility to expect an employee to work in the next door building, and that the fundamental intent of an implied term as to mobility, or indeed the non-existence of one, is to protect an employee in circumstances such as we have earlier described.  

38	The Tribunal found on the facts of this case, in terms, that the employer was not changing;  that she had worked in electronics before, and that she was going to be still working, in effect, for the same employer, that is, Mr Moore through the Respondent Company, at premises next to where she was, and would remain employed, and their judgment was that, on their construction of the contract of employment, she was indeed obliged to comply with that instruction, and that it would not amount to a breach of her contract of employment.  We are satisfied that that was a conclusion which this Tribunal was entitled to reach in relation to the facts of this case.

39	Mr Lane’s second submission, of course, is his alternative submission in relation to reasonableness.  It is certainly true, as Ms Cunningham has implicitly said, that paragraph 14 is unfortunately rolled up, if it is intended to amount to the conclusion on reasonableness as well as on unlawfulness, but a decision of an Employment Tribunal does not have to be read like a statute or a work of art, and we are entirely satisfied that there can be spelled out, at paragraph 14, sufficient for an alternative finding that, if, contrary to its primary conclusion, there was breach of the contract of employment, and what was being here asked was a variation of that term, that was a reasonable request for them to have made, for the very same reasons as are set out at length in paragraph 14.

40	Ms Cunningham submits that, nevertheless, a failure by an employee to comply with a reasonable request to vary a contract, in what the Tribunal plainly found to be a very minor respect, no change in the terms and conditions thus arising, and simply the geographical change of working next door on similar work, would not be a dismissal on grounds of misconduct.  

41	We are satisfied that that is not right.  She submits that that would amount to a dismissal for a substantial other reason, but it is clear to us that, if one looks, for example, at Farrant v The Woodroffe School, Judge Peter Clark concluded, and in our judgment rightly concluded, that the laboratory technician in that case was dismissed, the reason being gross misconduct.  Of course, it took some time before deciding that it was a fair dismissal, given that the gross misconduct was not complying with an order, which strictly fell outside the terms of his contract of employment, but it is equally clear to us that once Judge Peter Clark and, indeed, the Employment Tribunal at first instance concluded that it was a reasonable request, albeit one which was outside the contract of employment, and therefore involved a variation, and one which the employee unreasonably refused, and that he was dismissed for that reason, that was a reason relating to conduct, and, on the facts of that case, the Tribunal had not erred in concluding that it was gross misconduct.

42	We conclude that that is exactly the same analysis as would be carried out here by the Tribunal.  We accept that they had not set it out in that kind of length, but because, in any event, we uphold their first and most simple conclusion, namely that the instruction was within the contract of employment, we are satisfied that this fall-back argument, on which it is not necessary for Mr Lane to succeed, in any event, is also one on which he is entitled to succeed and resist the appeal.

43	In those circumstances, the appeal against the dismissal of the claim for unfair dismissal must fail.  

Part-Time Worker
44	For the same reasons, as we have indicated, the claim must also fail in respect of a breach of the Part-Time Workers (Prevention Of Less Favourable Treatment) Regulations 2000.

45	We do not need to address the interesting arguments of Ms Cunningham that the Tribunal was not entitled to reach the conclusions it did in respect of this Regulation.  The first conclusion it reached was that it was satisfied that the reasons for the proposed transfer of the Applicant related primarily to her abilities, and her behaviour, over a period of time.  That, of itself, would be sufficient on the findings of fact by the Tribunal, unless said to be perverse, to mean that her appeal must fail.  

46	But, secondly, the Tribunal found that it was satisfied that, insofar as the Appellant was chosen as one of the two part-time workers, that was justified on objective grounds, and it sets out the objective grounds as being a down-turn in work, and that the Respondent did not have sufficient work.  The Tribunal concluded that that amounted to justification.  It is in relation to that argument which, of course, is academic, because she must succeed on both her other arguments in order for it to be relevant at all;  that she challenges the finding, as a matter of law.  

47	But, thirdly, the Tribunal concluded that there was no detriment, in any event, and, given the findings that we have made, that the decision of the Tribunal, in this regard, cannot be challenged, namely that there was no detriment, because there was no change in the terms and conditions including wages, then this appeal must in any event fail on that basis, as Ms Cunningham accepted in the course of argument.

Just and Equitable

48	Finally, we turn to the fall-back argument of the Tribunal, that if on any of the other grounds they were wrong, then in any event, it would not have been just and equitable to award compensation.  They set out reference both to the secret taping of tape recordings, as to which we ourselves would not have been so critical as they were, but also the behaviour in front of other workers, which was plainly a serious matter.  Ms Cunningham submits that, if she were otherwise right in respect of any of her arguments, and this had been an instruction which was outside the contract of employment and/or was unreasonable, then the response of the Appellant could have been justified, or at any rate not so seriously viewed.

49	We take the view that that would be a difficult argument to run because, of course, nothing could legitimise, even in the course of a proper stance by an employee, the causing of the kind of damage and upset, which is alleged to have taken place here.  But, Ms Cunningham submits, that if she were otherwise successful, the Tribunal would need to look at it all again.  Given that we have, in any event, found against Ms Cunningham on the other grounds this point does not arise, and we do not need to express any opinion as to what would have occurred, if she had succeeded.

50	For all those reasons, however, we are entirely satisfied that this appeal should be dismissed.