United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 419_93_2411

Appeal No. EAT/419/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24th November 1994

Judgment delivered 6 June 1995

Before

HIS HONOUR JUDGE J BULL QC

Ms S R CORBY

MR R H PHIPPS

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MR E LITHERLAND           APPELLANT

WALKER - TROWBRIDGE LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR T LINDEN

(of Counsel)

Solicitor

Pattinson and Brewer

30 Great James Street

LONDON WC1N 3HA

For the Respondents MRS J LIDDINGTON

Solicitor

Howes Percival

252 Upper Third Street

Grafton Gate East

Central Milton Keynes

MK9 1DZ


 


HIS HONOUR JUDGE BULL QC This is the appeal of Mr Eric Litherland against the decision of an Industrial Tribunal sitting at Sheffield on 23 March and 6th April 1993 whereby they rejected his application that he had been unfairly dismissed. Full Reasons were sent to the parties on 20th April 1993.

The Respondent company are general haulage contractors who employed some 40 persons of whom 6 were employed as fitters in the workshop. Mr Litherland, who had worked for the Company for almost 25 years, had risen to the position of chargehand. In April 1992 management decided, in order to bring about necessary economies, upon two alterations which affected the Appellant. The first, as a consequence of reducing those working in the workshop from 6 to 4 was the abolition of the position of a chargehand; the second was to change the shift system. The effect of these two changes meant a loss of about £45 per week to the Appellant. The changes were announced to the foreman, Mr Wall, on 9th April 1992 when the Applicant was away from the workshop carrying out his duties. The Appellant, although displeased by these changes was found by the Industrial Tribunal not to have made any clear protest to any person in authority about the changes.

The Appellant had a further complaint which was that he had been told by management that he would no longer be able to work on Saturdays which was something which he had been able to do throughout most of his time with the firm, and were that to happen it would mean in addition to the loss of approximately £45 per week a further loss of some £30 per week to him so that he would then be losing something in the order of £75 per week. On 5th June 1992, the Appellant sent a formal letter of resignation to his employers terminating his employment on 12th June 1992.

At paragraphs 9 and 11 of their reasons the Industrial Tribunal set out the respective case of both the Appellant and the Respondents.

"9 ... The applicant's case quite simply is that there was a fundamental breach in his contract of employment brought about by the drastic reduction in his terms and conditions and loss of pay and that he had never accepted that position and had protested about it continuously right up until the time he wrote the letter of 5 June to his employers. He said that the imminent implementation of the `no Saturday working rule' was the last straw and that this was the factor which finally determined that he should walk out and entitle him to claim constructive and unfair dismissal.

...

11 The respondents' case is different. Whilst they accept readily that the applicant's terms and conditions of employment had been so drastically altered to an extent which would have entitled him to leave immediately they claimed that he had never at any time protested or aired any formal grievance after 9 April 1992 and throughout the rest of his time with them. Mr Wall refuted the suggestion made by the applicant that he had complained to Mr Wall for what was effectively an 8-week period. ..."

Mr Linden on behalf of the Appellant does not criticise, nor can he, the finding in paragraph 22:

"22 On the facts of this case given the evidence that we have heard we have determined that whilst the applicant might not have been thrilled or pleased by the changes in his circumstances, he had nevertheless decided to `grin and bear it' along with the other employees and he had made no clear protest in any way to any person in authority so as to air his discontent. He had in effect decided to carry on, albeit with less enthusiasm than before and when he got the chance of another job he decided to take it. In our view, on the facts of this case. he left it too long and had therefore elected to affirm the contract. Consequently he has lost his right to claim he was constructively dismissed."

The case for the Appellant to the Tribunal was that he was told at some time prior to his letter of resignation dated 5 June 1992 that he would no longer be permitted to work on Saturdays, despite having done so for most of his time with the Company. The argument advanced on behalf of the Appellant is that the Industrial Tribunal erred in law in failing to make any finding of the date when, between 9th April and the date of his letter of resignation, namely 5th June 1992 this anticipatory breach first came to the notice of the Appellant, so that the Tribunal could go on to the next step and ask themselves whether there was evidence of his affirmation of the contract after he knew of this additional anticipatory breach in relation to Saturday work. Before the Tribunal the Appellant was represented by his local Branch Secretary and it may well be that we have had the benefit of a far clearer analysis of the law and facts than that which was presented to the Industrial Tribunal. Whether that be so or not, the Tribunal in relation to the question of Saturday working found the following facts:

"15(iii) The possibility of a further change in the way of the loss of Saturday working was discussed but that was not implemented prior to the applicant leaving."

There is no finding of the date at which the possibility of such further change came to the notice of the Appellant, nor any consideration of whether he affirmed his contract of employment after notice of the possibility of the further change in relation to Saturday working.

The Industrial Tribunal did not have drawn to their attention the case of Norwest Holst Group Administration Ltd v. Harrison, a decision of the Court of Appeal reported in [1985] ICR 668, nor to Gunton v. Richmond upon Thames London Borough Council [1980] ICR 755 where there appears at p.771, a particularly helpful passage of Buckley LJ as an aid to analysis in this type of situation:

" "Where the time for performance of part of the guilty party's obligations has arrived but some of those obligations remain executory, the position is the same as regards those obligations which remain executory as it is in respect of all the guilty party's obligations where none of them has yet become due for performance. if the guilty party has evinced an intention not to perform those obligations of his which remain executory, the innocent party may elect to treat himself as discharged from all obligations on his part to perform the contract any further. He does so by accepting the guilty party's repudiation of his outstanding obligations under the contract notwithstanding that the time for performance of those obligations, or some of them, may not yet have arrived." "

We are therefore driven to conclude that this Tribunal did err in law in failing to make any finding as to the date when, between 9th April and 5th June 1992, the further repudiatory breach in relation to Saturday working was brought to the notice of the Appellant, and thereafter to decide by reference to the conduct of the Appellant, whether he had affirmed or repudiated his contract. As was pointed out by Buckley LJ in the case just cited, in 1951 Asquith LJ employed a colourful phrase: "An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind." A more extended summary of the general principles of law which apply is set out in the judgment of Browne-Wilkinson J (as he then was) in W E Cox Toner (International) Ltd v. Crook [1981] ICR 823 at 828E.

For these reasons we allow this appeal and direct that it be reheard before a differently constituted Industrial Tribunal.