United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 630_94_1010

Appeal No. EAT/630/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10 October 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J R CROSBY

MR R TODD

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BLEWITT LANDSCAPES LTD          APPELLANTS

MR P HILL           RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


 


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APPEARANCES

For the Appellants NO APPEARANCE BY

OR REPRESENTATION

ON BEHALF OF THE APPELLANTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is another appeal by Blewitt Landscapes Ltd. The purpose of this preliminary hearing is to decide whether there is an arguable point of law. The appeal is from the decision of the Industrial Tribunal held at Manchester on 25 April 1994. For Reasons notified to the parties on 6 June 1994, the unanimous decision of the Tribunal was that the Applicant, Mr P. Hill, had been unfairly dismissed. Blewitt Landscapes Ltd was ordered to pay him compensation for unfair dismissal and an amount of two weeks' wages deducted contrary to the Wages Act 1986.

Mr Blewitt has not attended the preliminary hearing of the appeal. He has notified the Tribunal that he does not intend to attend. He relies on two points in his letter to the Tribunal dated 17 June 1994 and attached to his Notice of Appeal of the same date. The two points are that the decision of the Industrial Tribunal against his company in favour of Mr Hill was unlawful, first, because the decision to award compensation was based on the assumption that Mr Hill was unfairly dismissed. He states that that was not the case, as appears from the decision of the Tribunal and from the Notice of Appearance. It was always Mr Blewitt's case that Mr Hill was not dismissed but had resigned.

The second point taken by Mr Blewitt is that all statements made by Mr Hill were fully answered in a reply of 14 April 1994, but those points had not been taken into consideration by the Tribunal in reaching their decision.

With those two points in mind, we turn to the decision. Mr Blewitt, as Managing Director of Blewitt Landscapes Ltd, did attend to represent his company at that hearing, though he had not attended the hearing of the case brought by Mr Garlick.

It appears from the decision of the Tribunal that it fully understood the issue, whether Mr Blewitt had dismissed Mr Hill or whether Mr Hill had resigned. The conclusion of the Tribunal, on the evidence that they heard from Mr Hill, from Mr Garlick, who gave evidence for Mr Hill, and from Mr Blewitt was that Mr Blewitt had not dismissed Mr Hill on 26 August, when there had been an incident described earlier in the decision.

The Tribunal concluded that Mr Hill remained employed until 6 September, when he reported for work. They accepted the evidence that, on 6 September, Mr Blewitt said that Mr Hill could re-start, but this was to be on the basis of an entirely new contract of employment without continuity.

The fact found by the Tribunal was that Mr Hill, after consideration, decided that he could not accept the different terms of employment. The Tribunal's conclusion in paragraph 4 of the decision was that Mr Blewitt, by offering the new contract, was acting in such a way as to seek to vary the existing contract. Mr Hill was not prepared to accept this. He resigned. In those circumstances, having regard to Section 55(2)(c) of the Employment Protection (Consolidation) Act 1978, it was a case where Mr Hill had terminated the contract in circumstances that he was entitled to terminate it without notice, by reason of his employer's conduct. The employer's conduct was the attempt by Mr Blewitt unilaterally to impose a new contract of employment on Mr Hill which he was not willing to accept.

In those circumstances the Tribunal concluded that the resignation of Mr Hill was in law a dismissal and was an unfair dismissal. We have considered those Reasons in the light of the criticisms made by Mr Blewitt in his Notice of Appeal. In our view, there is no arguable point of law raised by the Notice of Appeal. It is a question of fact for the Tribunal as to whether there was resignation or constructive dismissal. On the basis of the facts found by the Tribunal it was correct to conclude in law that Mr Hill was constructively dismissed on 6 September, and had not resigned, as Mr Blewitt had contended, on 26 August.

In those circumstances, no purpose would be served by this matter proceeding to a full hearing. There is no arguable point of law. The appeal is therefore dismissed.