United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 167_93_1802

Appeal No. EAT/167/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 February 1994

Before

HIS HONOUR JUDGE D M LEVY QC

MISS J W COLLERSON

MS S R CORBY

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JOHN STANDING OUTSIDE CATERERS          APPELLANTS

MISS T HOLLOWAY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR I K R WILSON

(SOLICITOR)

Messrs Dean-Wilson

Solicitors

96 Church Street

Brighton

E Sussex BN1 1UJ


 


JUDGE LEVY QC: Following a hearing on 2 February 1993 before the Brighton Industrial Tribunal, there was decision of that Tribunal that the Applicant, Miss T Holloway, had been unfairly dismissed by the Respondent, John Standing Outside Caterers. There was also an order for a basic award of £620 and a compensatory award of £1,085. Below the only appearance for the Company, the Appellant here, was by a member of the Company and that has put Mr Wilson, who appears before us today, at a disadvantage because at this stage he does not have the Chairman's notes of evidence.

The dispute is about whether the Respondent to the appeal was constructively dismissed and whether that was fair. Mr Wilson, who has made impressive submissions on behalf of the Appellant, complains with some justification that the Reasons are not well expressed and the facts are not fully found. In particular, he refers to the fact that it is nowhere mentioned in the decision that this is a small undertaking and that is something that the Tribunal should have taken into account.

Reading the decision as a whole we are satisfied that the facts found by the Tribunal justified the conclusions of law which they found and the conclusions of law were there to find on the facts as they found them.

In the circumstances we feel that there is no point in this appeal going ahead because it is bound to fail. However, we would say this; one of the submissions made by Mr Wilson was that there had been a fundamental breach of contract but nevertheless it was wrong for the Tribunal to say in their Full Reasons at paragraph 11:

"Having said that, of course, it necessarily follows that Mr Standing is in an impossible situation in seeking to argue the dismissal was fair. In our view it is inevitable that it was unfair."

We think what the Tribunal was saying can be expanded thus. They found that there was a fundamental breach of contract by the Company. The employee had claimed that this fundamental breach of contract entitled her to say she had been constructively dismissed by the Company. This was an attitude she was entitled to take. Once this was established, the inevitable finding of the Industrial Tribunal was that the constructive dismissal amounted to unfair dismissal.

While thanking Mr Wilson for his submissions, we feel that we have no alternative other than to dismiss this appeal at the ex parte stage.