England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 21st November 2001

1. LORD JUSTICE KEENE: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal on 20th June 2001 whereby it dismissed an appeal by Mr and Mrs Messer against a decision of an employment tribunal, sitting at Southampton. Mr and Mrs Messer had been employed by the respondent company as joint managers of one of their newsagent shops. The shop in question was located in Liphook, Hampshire and had been managed by the applicants since about November 1997. Their employment by the respondents ended on 3rd May 2000, but Mr and Mrs Messer claimed they had been unfairly constructively dismissed.
2. What happened was that there had been changes to the opening hours of the shop required by the company but with which Mr and Mrs Messer, the applicants, were not happy. Various meetings took place between them and the company management as a result of which it seems some form of agreement was reached on 18th and 19th April 2000. That was the finding of the Employment Tribunal. On 20th April 2000 the applicants sent a letter of resignation to the respondents and adhered to this position despite some efforts by the company's management to persuade them to change their minds.
3. The Employment Tribunal considered whether these circumstances gave rise to constructive dismissal within the meaning of Section 95 (1) (c) of the Employment Rights Act 1996. It concluded that there was no fundamental breach by the employer of the contract of employment and that the applicants had resigned voluntarily. Its reasoning was that although the company had required the applicants to extend the opening hours of the shop of which they were joint managers, nevertheless, as a matter of fact, that did not involve anyrequirement on them to be employed in a different capacity or to work any greater number of hours in any one week, nor did it involve any reduction in their remuneration because provision could have been made for the working hours of themselves and their staff to be re-organised so as to accommodate the longer shop opening hours without any actual addition to the working hours required of Mr and Mrs Messer.
4. The Employment Appeal Tribunal upheld the approach and conclusions of the Employment Tribunal.
5. Mr and Mrs Messer now contend that those decisions were wrong in law. It is said that they were being required either to work extra hours for nothing or that one of them would have to leave the company and an assistant manager would be employed instead. Mr Messer, who has taken the lead in addressing me on behalf of him and his wife this morning, argues that the extensions of hours sought by the company were unlawful in the light of the working time regulations and the minimum wage regulations. It is submitted by him that he and his wife were being required to work the longer shop opening hours. He draws attention to one of the terms of the contract between the respondent and Mr and Mrs Messer which is Clause 2, under the heading "Hours of Work":

"Managers are required to work the hours as laid down by the company in accordance with the trading hours of the branch. The nature of the job does of necessity involve additional hours especially when difficulties occur in the branch. The managers' salaries take this into account and no further payment for additional hours will be made. The day off facility is not guaranteed and provision for extra payment or time off in lieu is available, this being the only exception."

6. Consequently, it is said by Mr Messer that the company was, in effect, ordering him and his wife to work extra hours for nothing. Mrs Messer has drawn attention also to the schedules of hours put forward by the company as ways in which the extended shop hours could be accommodated.
7. Both Mr and Mrs Messer clearly feel that they have been very harshly treated by the respondent company and, in effect, that they have not had a fair deal from the Employment Tribunal and the Employment Appeal Tribunal. Looking at the contract, as I have already quoted from Clause 2, it does indicate that the applicants could be required to work longer hours. This was described below as being harsh but the comment was made that this sort of employment - running newsagents - is itself often a relatively harsh activity. It was open to the company and Mr and Mrs Messer to agree that the two of them need not work the extended shop opening hours so that there could be some variation in the way the shop opening hours were covered. The question essentially was whether Mr and Mrs Messer were being required by the company in this new situation to work longer hours and, if so, whether that amounted to a fundamental breach of the contract. The Employment Tribunal found as a fact, as the Employment Appeal Tribunal rightly observed, that the company in proposing an extension of the trading hours of the shop did not require Mr and Mrs Messer to work more hours per week, although it might have been necessary to the extent that other staff could not cover the extended trading hours, and that the applicants would have to work on occasions until 6 pm on weekday evenings and Sunday afternoons.
8. Consequently, the Employment Tribunal found that the company's proposals did not constitute a breach of Clause 2 of the employment contract. It is clear from reading the Employment Tribunal's extended reasons that the company's management put forward a number of proposals as to how the extended shop opening hours could be covered. Principally, it seems the company was suggesting re-scheduling the rotas for the staff. That is borne out by the schedules drawn to my attention today. One of the options suggested by the company was that of employing an assistant manager, but the Employment Tribunal found there that the applicants were not justified in regarding the company's proposals as an attempt by the company to oust Mrs Messer from her position as joint manager. The Employment Tribunal said:

"The replacement of Mrs Messer by an assistant manager was one of several alternatives suggested by Mr Sherriff,"

(who was one of the managers of the respondent company)

"but only in an attempt to meet the applicants' requirements."

9. In short, there were several possibilities being discussed and investigated as to how the longer shop opening hours could be covered.
10. Moreover the Employment Tribunal found, as I indicated earlier, that in effect an agreement had been reached between the company and Mr and Mrs Messer as to how the difficulties which they had been discussing could be resolved. This included an increase in the money to be paid in terms of the wage budget which had been requested by Mr and Mrs Messer. The company eventually agreed that an extra £9.00 per week would be added to their wage budget, but that again was a finding of fact with which this court cannot interfere.
11. In those circumstances when one turns to the fundamental issue - which was was there a fundamental breach of contract by the company - it seems to me that there is no possibility at all of the Court of Appeal concluding that the company was in fundamental breach. The contract was very wide in its terms. Moreover the findings of fact arrived at by the Employment Tribunal do not form any basis for an argument that there was a fundamental breach by the company.
12. The Court of Appeal is in no position to arrive at different findings of fact from those arrived at by the Employment Tribunal. That tribunal heard the witnesses; it heard the evidence. Its findings of fact provide the basis on which any argument of law has to proceed.
13. In those circumstances, I can see no real prospect of an appeal in this case succeeding. It would not be a kindness to Mr and Mrs Messer to grant them permission to appeal now and to let this go to the full court if, at the end of the day, they are only likely to lose and indeed be burdened with an order for costs against them as well as having failed in their appeal. It follows from what I have said that, because there is no real prospect of success, this application for permission to appeal will have to be refused.
14. Nonetheless, I am grateful to Mr and Mrs Messer for the very careful and civilised way in which they advanced their arguments today. It has made my task in deciding this a great deal easier.
Order: Application refused