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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cruse v. Omega Selection Services Ltd [2001] UKEAT 1334_00_0405 (4 May 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1334_00_0405.html Cite as: [2001] UKEAT 1334__405, [2001] UKEAT 1334_00_0405 |
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At the Tribunal | |
Before
MRS RECORDER COX QC
MR B M WARMAN
MR R SANDERSON OBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
No appearance or representation by or on behalf of the Appellant |
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MRS RECORDER COX QC
"the applicant's principal job was to be work upon a consignment of Rolls Royce oil pumps recently received for refurbishment, but …."
Quoting directly from the Chairman, in his Reasons:
"I was satisfied on a balance of probabilities that there was general discussion as to other sorts of work which the applicant might be also be required to do. It was clear that Mr Davis anticipated that the applicant would join in with the general housekeeping work which had to be done in an engineering works and that he made some very general comment about it, but I was also satisfied on a balance of probabilities that he did not make it clear to the applicant that such housekeeping work would specifically involve sweeping floors, emptying bins, and generally cleaning work areas."
" the applicant might have made some comment under his breath, which Mr Davis regarded as a derogatory comment, although he could not be sure as he had not heard it clearly. He later asked the applicant to repeat what he had said, but the applicant declined. That morning [24 May] the Applicant had been asked by Mr Davis to take one of the Rolls Royce pumps and make a start on preparatory work preliminary to stripping it down, and working upon it properly"
and the Chairman said that he was:
" satisfied, on the evidence that had there not been an incident later that morning, as a result of which the applicant left the factory, the applicant and Mr Davis would have embarked upon that sort of work on the pumps which the applicant had understood he had been recruited to carry out."
"Mr Davis had had occasion to remonstrate with the Applicant"
over some matter and Mr Davis
"was also concerned to note that the Applicant had brought with him an electric kettle, which he proposed to use to make his own hot drinks."
" making queries about wage rates and so on, and so he asked the applicant if he had a difficulty in working at the company. The applicant said there was no difficulty, but then when Mr Davis referred to the kettle, the applicant became annoyed."
" rather cut Mr Davis short, and did not give him an opportunity to explain what his concern was. The applicant, I found, was disgruntled at the fact that he had spent the last 2 days on work which he regarded as beneath his skill level; suspicious about the amount that he was being paid, as opposed to the amount being paid to the respondent for his services; and having seen other people with electrical equipment of their own, which was apparently being used in the factory with impunity, I found that he concluded he was not prepared to accept the situation anymore, and he then left. Mr Davis then telephoned Mr Beresford, and told him what had happened, as he saw it; the applicant subsequently telephoned Mr Beresford, and in the course of the conversation, confirmed that the incidents reported to Mr Davis had taken place…"
although at this stage, he:
"tried to get across that he was generally unhappy about the way events had transpired at the company, and made a number of complaints about what had happened".
It seems that that was not a productive conversation, because it ended fairly abruptly and subsequently,
"Mr Beresford returned the applicant's CV, making it plain by so doing that he was not intending to keep the Applicant on his books any longer."
"although the applicant was employed primarily to work on the Rolls Royce pumps it was not intended or agreed that he would be engaged exclusively upon that work and I do not regard it as a repudiatory breach of contract for an employer (acting by his agent in this case) who is temporarily unable to give the instruction to a new employee that he wishes to give, to give that employee other less skilled work on a purely temporary basis, so long as he continues to pay him the contractual hourly rate. Although I can envisage certain circumstances in which an employer may be in repudiatory breach of contract where it consistently denies a highly skilled man the opportunity to exercise his craft and insists on his performing menial duties, such a situation is very far from this case. The applicant knew that this was a temporary difficulty caused by Mr Davis's commitments elsewhere; and by the time that the applicant elected to leave, he had already begun the preparatory stages prior to doing the work on the pumps which he had expected to do."
"What triggered the Appellant's decision to leave was his taking exception to Mr Davis's attitude on other matters
16. I am not therefore satisfied on a balance of probabilities that there was any breach of contract here for which the respondent is vicariously liable."
The Appellant's claim was therefore dismissed.
the Chairman observed in paragraph 13 of his Decision:
"13 It has been remarked on a number of occasions that this is an area in which the law is by no means clear. Workers such as the applicant are in an anomalous position in that they do not have clearly expressed contracts for services but equally do not feel themselves to be self-employed."
However the Decision, on that part of the case, was clearly in the Appellant's favour, so we shall concentrate on the arguments that there is an error of law in the finding that there was no breach of contract here. It seems to us for the reasons given above, that the Chairman, as he was entitled and is indeed required to do, hearing all the evidence and weighing up the competing contentions, clearly preferred the Respondent's case to the Appellant's.