United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 288_93_1606

Appeal No. EAT/288/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16th June 1993

Before

HIS HONOUR JUDGE N HAGUE QC

MR A C BLYGHTON

MR K M HACK JP

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MR R E OBENG          APPELLANT

FANCY THAT OF LONDON LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR C HILLIMAN

(Representative)


 


JUDGE N HAGUE QC: This is the preliminary hearing of an appeal brought by Mr Obeng against a decision of an Industrial Tribunal sitting at London (South) entered on the register on 15th February 1993. The Respondents to the appeal are a company called Fancy That of London Limited which formerly employed Mr Obeng.

The ground of the decision of the Industrial Tribunal was that there had been no constructive dismissal under Section 55(2)(c) of the Employment Protection (Consolidation) Act 1978. They found that there had been no breach of Mr Obeng's contract by his employers, or if there was a breach it was not a fundamental breach of a kind which entitled Mr Obeng to terminate his contract. Therefore, they found he had not been dismissed, and of course it is essential for any claim for unfair dismissal that the applicant has been dismissed.

By way of a preliminary it is important to point out that Parliament has decided that there is only an appeal to this Appeal Tribunal on a point of law. Findings of fact by an industrial tribunal cannot be challenged except before this Tribunal in very rare circumstances. For better or for worse, both employers and employees are fixed with the findings of fact made by an industrial tribunal.

The first such finding of fact made by the Industrial Tribunal in this case was that, although he said he had been promoted to a manager (and that was put into his Originating Application) Mr Obeng had only been promoted to what was called "a manager designate" which meant that he was appointed a manager but only on a trial basis, and there was no evidence to suggest that that status had changed and that the condition that he was only there on a trial basis had been removed.

In January 1992 various events occurred which are set out in some detail in the Industrial Tribunal's Reasons for their decision. The differing accounts given of those events are related by the Tribunal. At the end of the day, however, the Tribunal, as they were entitled to do, preferred the evidence of the representatives of the employers, Mr Shahtouri and Mr Ficken, to the evidence of Mr Obeng. For the reasons we have given we cannot possibly interfere with that. The critical issue was what happened at a meeting on the 29th January 1992 between Mr Obeng and Mr Ficken. What the Tribunal said happened was this, and we quote from paragraph 11 of the decision:

"[Mr Obeng] was told simply that he was to go for retraining by Mr Shahtouri at the Respondents' Westminster shop. That was a larger shop with more assistants than the one which Mr Obeng had been managing, and, inasmuch as Mr Obeng was a Manager Designate on a trial basis, albeit that he had been in that position for some 18 months, we hold that the Respondents were entitled to require him to retrain in that way. Certainly, the Respondents' decision and intimation thereof to Mr Obeng was not, as we find, a fundamental breach of contract of such a nature that it would entitle Mr Obeng to treat the contract of employment as at an end."

So he was told he would have to go for retraining. On the 3rd February, it appears, though this is not made very clear in the actual decision, that Mr Obeng indicated that he was no longer willing to be employed on that basis and therefore terminated his contract of employment.

Mr Hilliman, who represented Mr Obeng below and appears for him today, has very helpfully and clearly set out Mr Obeng's contentions. He says that there are errors of law in those findings, and in particular there are two errors of law he points to. The first error, he says, is that it was wrong to say that the requirement of retraining was not a breach of contract, in other words, it was wrong to say that the contract permitted the employers to require Mr Obeng to undergo a further period of retraining. The second point is Mr Hilliman's that it was wrong in law, assuming that that was a breach of contract, for the Tribunal not to find that it was a fundamental breach of contract.

There is, in our view, an insuperable difficulty facing Mr Hilliman on those two contentions. The difficulty is that in a number of cases, and we refer in particular to Pedersen v. Camden London Borough Council [1981] ICR 674 and Woods v. W M Car Services (Peterborough) Limited [1982] IRLR 413, the Court of Appeal has held that whether the facts found by a tribunal amount to a breach of contract, and also whether a breach of contract is a fundamental breach of a kind entitling the employee to terminate the contract, are both matters of fact for the Industrial Tribunal and that it is not open to this Appeal Tribunal, or indeed the Court of Appeal itself, to interfere with the findings of the Industrial Tribunal in that respect. In our judgment the foregoing is fatal to Mr Hilliman's contentions. It is simply not open to this Appeal Tribunal to question those two particular findings set out in paragraph 11 of the Industrial Tribunal's Reasons. Even if we were to disagree with those findings (I am not saying we do by any stretch of the imagination) it would still not be open to us to reverse the decision of the Industrial Tribunal on that ground.

Mr Hilliman has put forward another point. He says that there was one witness called on behalf of Mr Obeng who gave evidence for three hours who is not mentioned in the Tribunal's decision. From the Appearances which are in our bundle, that witness appears to have been Mr Okudzeto. However, in paragraph 8 of their Reasons the Tribunal do say:

"A great deal of evidence was given in this case about many matters which, in the event, we have not considered to be of importance."

So they obviously did consider the evidence but determined that it was not of importance, in particular on the essential point which they say they have to determine, i.e. whether or not the employers committed a breach of contract and if so whether it went to the root of the contract.

Two other matters Mr Hilliman raised which we should briefly refer to. One is that it is clear from the documents and from what Mr Hilliman told us, that the hearing before the Tribunal extended over three days and not only over the two which are referred to in the decision. Secondly, it does appear, again from the documents and also from what Mr Hilliman told us, as we have already mentioned, that he appeared on behalf of Mr Obeng at the Tribunal, and the decision of the Tribunal puts under "Appearances For Applicant" the words "In person". Those are errors, we think, only of an administrative nature in the decision. With all respect to Mr Hilliman, they are not central matters and we do not think it is possible sensibly to argue that they invalidate the findings, and in particular the clear findings of fact which, for the reasons we have given, are really decisive of this case against Mr Obeng.

For those reasons we think this appeal must be dismissed.