United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 153_94_0603

Appeal No. EAT/153/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 March 1995

Before

HIS HONOUR JUDGE D M LEVY QC

MR J D DALY

MR J H GALBRAITH CB

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G K P DYNAMICS          APPELLANTS

(1) MRS P R DEXTER

(2) MR I G DEXTER          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MISS J EADY

(Of Counsel)

Eversheads, Wells

& Hind

Solicitors

11 St James Court

Friar Gate

Derby

DE1 1BT

For the Respondents MR J DEE

(Of Counsel)

Hawkins & Co

Solicitors

Hailsham House

15 Market Street

South Normanton

Alfreton

Derbyshire

DE55 2AB


 


JUDGE LEVY QC: GKP Dynamics Ltd ("the Company") manufacture and supply doors to the order of the Vauxhall Motor Company. Mr Ian G. Dexter and Mrs Pearl Dexter (who are husband and wife) at the time in question had both been employed by the Company for four years of continuous employment.

In May 1993 the Company were in the middle of difficult trading conditions and proposed changes to the shift system in which their some 60 employees worked. Those changes were approved by the majority of the workforce. Mr and Mrs Dexter worked the changed system for a trial period. The changed system was to 2 days of 12 hours and 2 of 8 hours from 5 days each of 8 hours.

Mr and Mrs Dexter had made it clear that they did not like the change in system and that was a sentiment which they reaffirmed when they were told, at the end of the trial period, (i.e. at the end of May 1993) that it was to continue.

When they were so told, they made it clear that they did not intend to work that new system. The Company then wrote each of them a letter dated 10 June 1993 ("the Dismissal Letter") in the following terms:

"I understand from Barrie Wells (and I interpolate to say that Mr Wells was the Production Manager of the Company) that you are not prepared to work the current shift pattern that we have had to adopt since the downturn in workload on the 2700 Line required a reduction from 120 hours to 80 hours per week.

You are fully aware that initially we tried to implement two shifts of 8 hours per day to meet this requirement. Unfortunately stopping the line reduced our efficiency by more than 15%, the economies of which the company is not prepared to continue. Currently market conditions and other available labour enable us to work the 2 x 12 hours and 2 x 8 hours being offered, but even this pattern cannot be guaranteed.

We appreciate that this is an amendment to your current contract of employment and therefore we give you 4 weeks notice, from today, that this contract will be terminated.

Should you re-consider your decision we are prepared to offer you a revised contract enabling more flexible hours of work but this must be accepted by Thursday 17 June to give sufficient time to recruit and train your replacement.

Yours sincerely

G Whelan

Administration Manager".

Mr and Mrs Dexter did not approve of the content of that letter and they shortly thereafter went to the Industrial Tribunal. Both Mr and Mrs Dexter's IT1; were dated 27 July 1993. Mr Dexter's set out in some length the matter which led to him making the claim. The Company's answer to Mr Dexter's complaint was dated 7 September 1993. Paragraph 3 reads:

"3. Was the applicant dismissed? If YES: what was the reason.

Trading conditions necessitated revised employment conditions which Mr Dexter refused to sign".

Mrs Dexter's IT1 said at paragraph 10:

"10 Please read the letter my husband has written as this relates to me and I could not see the sense in writing it all down again. The only thing which is different is my husband was sacked and I gave my notice in".

So far as Mrs Dexter was concerned, in their answer under the box, "was the Applicant dismissed"? - The Company ticked the box "No".

Mr and Mrs Dexter's complaint came for determination before an Industrial Tribunal sitting in Nottingham on 4 November 1993. The decision was promulgated on 6 December 1993. The Tribunal's decision was unanimous that both Mr & Mrs Dexter had been unfairly dismissed and that neither of the Dexters had contributed to their dismissal. The Company was ordered to pay some £3,567 to Mr Dexter and some £3,905 to Mrs Dexter.

From that decision, the Company appealed by a Notice of Appeal dated 6 January 1994. The matter was heard as a preliminary matter on 7 June 1994 when directions were given that it should proceed to a full hearing. The Chairman's notes were requested in the normal way and a direction was given that the exhibits that were before the Industrial Tribunal were to be agreed and paginated. We do have the Chairman's notes of evidence, but unfortunately the direction as to the agreement and pagination of the exhibits has not been carried into effect, though we have seen and set out the terms of the dismissal letter sent to husband and to wife.

Paragraphs 4 and 5 of the Full Reasons of the Industrial Tribunal's decision says this:

"4. The letter of 10 June gave notice to both employees of the Respondents intention to amend their contracts of employment and it was the unanimous decision of the Tribunal that change in shift patterns requiring the working of twelve hour shifts on two of four working days, an increase of 50% in terms of the normal day shift hours detailed in their terms of employment, was a fundamental breach of the Applicants' contracts.

5. The letter of 10 June 1993 manifested a clear and unequivocable intention of the Respondents to commit a breach of contract, and was an anticipatory breach. The anticipatory breach was a fundamental one and the Applicants were entitled to leave their employment and claim constructive dismissal. The provision of the new contract indicated that the change was to be more than temporary and was likely to be of uncertain and unlimited duration".

In clear terms, the Industrial Tribunal held that the Dexters were constructively dismissed.

Miss Eady, who appeared on the preliminary hearing and appeared below, submits to us that the Tribunal below failed properly to construe the dismissal letter which we have set out. We respectfully agree with her. It is quite clear that the Dismissal Letter set out the difficulties through which the Company was then going. It then told the recipient that the Company understood his difficulties but, in the light of the Company's difficulties, could not agree to him continuing under the contract of employment as it then was, and giving proper notice to terminate the contract that is what is set out in the third paragraph of the letter: "Therefore, we give you four weeks' notice from today that this contract will be terminated". Thereafter, the final paragraph of the letter made it clear that if the recipient wished to accept a revised contract, that would be there for the taking. Mr Dee has submitted to us that the construction which we think is clear, is incorrect. We cannot agree with that submission.

Miss Eady goes on to say that once the Tribunal misconstrued the dismissal letter, everything else which was in their decision followed from that wrong construction. We agree with her on this.

We have been referred, in the course of argument, to the decision of this Court in Greenaway Harrison Ltd v Wiles [1994] IRLR 380 which deals with anticipatory breaches of contract in very different circumstances to this. We do not think that the judgment in that case affects this decision one way or the other.

We are satisfied that, so far as Mr Dexter was concerned, he was dismissed as the Company said he was in their IT3, and we cannot understand the finding of the Industrial Tribunal at paragraph 3(a) of the Full Reasons where they said, "The Respondents did not admit to dismissing either of the Applicants". We accept Miss Eady's submission that both the Dexters were dismissed by the Company by the despatch of the Dismissal Letter to each.

At the time of dismissal neither the Company nor the Dexters had the benefit of legal representation or advice; it is clear to us that if they had had that benefit, the letter of dismissal might have been differently expressed, as might the Company's Notices of Appearance. We think that it was quite clear that both contracts were terminated by the Company's letter of 10 June 1993, and therefore we conclude that the appeal should be allowed to this extent.

We differ from the conclusion of the Industrial Tribunal that the Dexter's were constructively dismissed, but dismissed they certainly were and they were entitled to bring a complaint to the Industrial Tribunal who, because of their error in construing the Dismissal Letter, failed to consider or make findings as to whether the dismissal was fair or unfair. That is a matter in which an Industrial Tribunal and not the EAT must make findings and on which accordingly we will express no views. We hold that neither Mr nor Mrs Dexter were constructively dismissed and remit this matter to the Industrial Tribunal for a further hearing. Meantime the Award made to each complainant cannot stand.

It may well be a matter which can suitably be considered by the Industrial Tribunal which originally heard this case, but if there are practical difficulties in this, there is no reason why it should not be considered by a different Tribunal. In the circumstances, we are allowing the appeal to this extent.