United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 337_93_3101

Appeal No. EAT/337/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31 January 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J D DALY

MR J H GALBRAITH CB

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MRS C BRADFORD          APPELLANT

(1) CORAL RACING LTD

(2) ARTHUR PRINCE (TURF ACCOUNTANTS) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY

OR REPRESENTATION

ON BEHALF OF THE

APPELLANT

For the 1st Respondent MR C SAMEK

(OF COUNSEL)

Messrs Underwood & Co

40 Welbeck Street

London W1M 8LN

For the 2nd Respondent MR J CAREY

(OF COUNSEL)

Messrs Allan Janes

21-23 Easton Street

High Wycombe

Bucks HP11 1NU


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mrs Bradford against the decision of the Industrial Tribunal held at Birmingham on 28 May, 27 November and 30 November 1992. The unanimous decision of the Tribunal was that Mrs Bradford had not been dismissed from her employment and her claim for redundancy and constructive dismissal therefore failed. The claims had been made by her in her Originating Application presented on 26 October 1991 against the two Respondents, Coral Racing Ltd, for whom Mrs Bradford had worked since October, 1980 and, secondly, against Arthur Prince (Turf Accountants) Ltd to whom the undertaking in the Coral betting shop at Kingstanding had been transferred at the beginning of September 1991, along with another number of other shops not relevant to these proceedings.

Mrs Bradford's case was that she had been employed as a cashier and training officer at the time when the transfer took place. Prior to the buy-out she was attending a course for the position of deputy manager which she had been promised. She was informed in May 1991 that she could no longer attend the course, as Coral were selling the Kingstanding shop. She was told at that time that she could not transfer to another shop, she had to transfer to Arthur Prince with the shop. She reluctantly agreed to give it a try, but after 3 weeks she said it was obvious that the benefits and potential she had with Coral were not going to be matched by Arthur. She had been demoted back to a cashier. Her employment terminated on 20 September.

That claim was contested by both Respondents. Coral's defence was that they had sold the unit at Kingstanding (with others) to Arthur Prince with effect from 2 September. Mrs Bradford had been employed for a number of years at the Kingstanding shop until end of August at which date she was on holiday leave. She transferred her employment to Arthur Prince under the Transfer of Undertakings Regulations. For those reasons she had no claim against Coral for redundancy or constructive dismissal.

The issue raised in the IT.1 and IT.3 was decided contrary to Mrs Bradford, for full reasons notified to the parties on 29 January 1993. Mrs Bradford was disappointed with the result. She appealed by Notice of Appeal dated 15 April 1993. That appeal first came before the Appeal Tribunal on a preliminary hearing to decide whether any point of law was raised that could be fairly argued at the full hearing of the appeal. On 7 March 1994 the Tribunal was satisfied that the case should be allowed to proceed to a full hearing and an order was made for the production of the Chairman's Notes of Evidence.

At the hearing today another appeal was also heard, brought on by a fellow employee of Mrs Bradford, Mrs Hodgetts. Her claim was heard at the same time as the Industrial Tribunal heard claims by Mrs Bradford and by a Mr Bayliss, who was the betting shop manager at the Kingstanding shop. The Tribunal heard those three cases over the 3 day period already mentioned. They heard them separately, but found it convenient to give their reasons for the decision in each case in the form of a composite decision. That was convenient, because the claims arose in respect of or out of the same set of facts. Under Rule 15 of the Industrial Tribunals Rules of Procedure Regulations 1985, then in force, the Industrial Tribunal could at any time order originating applications arising out of the same set of facts or in respect of the same facts to be considered together and give consequential directions.

There was also before the Industrial Tribunal common representation on each side. Mr Kane of the TGWU represented each of the three applicants. Both Respondents were represented by Counsel, Mr Carey.

On the hearing of this appeal, for reasons which will become apparent in the course of our judgment, we have decided to give the decisions on each of the appeals separately. But it was necessary to set the scene by referring to the connection between them. First, on Mrs Bradford's appeal the Tribunal was initially presented with a problem at the start of the hearing. At about 10.00 am a telephone call was received from Mrs Bradford in Turkey, stating that she was there and could not be here. She enquired about the hearing. She had been notified that the hearing would take place today. A letter had been sent to her on 5 December stating that her appeal would be heard at 10.30 am on Tuesday, 31 January. Earlier correspondence between Mrs Bradford and the Tribunal shows that she was consulted about dates that would be convenient. She was advised that the case would be listed during the period December 1994 or January 1995. In response to an Appeal Tribunal letter of 12 October she wrote on 18 October requesting that a hearing be fixed during the January period. Nothing more was heard from Mrs Bradford until this morning.

When the appeal was called on it appeared that the Respondents were represented by separate Counsel, Mr Samek for Coral Racing and Mr Carey for Arthur Prince. Their submissions were that the case of Mrs Bradford should be disposed of first without waiting for Mrs Hodgetts' appeal to be argued and that Mrs Bradford's case should be dismissed with costs because she had failed to turn up to prosecute the appeal. The principal submission made by Mr Samek was that this case was covered by an earlier decision of the Tribunal in Croydon v Greenham Plant Hire Ltd [1978] ICR 415 as summarised in Harvey on Industrial Relations and Employment Law Vol 4 page T/685, paragraph 1697. According to the summary of the case the Appellant wrote to the Appeal Tribunal saying he could not afford legal representation, that he would be abroad at the date of the hearing and he wished the appeal to be heard in his absence. The Tribunal held that his failure to attend was unreasonable conduct in conducting the proceedings and an order for costs was made against him.

We decline to accede to that course. Mr Samek subsequently withdrew the application for costs proposed on the basis of non-attendance. We considered the position and indicated to the parties that we wished Mrs Bradford's case to be argued on the merits before we would hear Mrs Hodgetts' case. We ask Counsel to address us on the basis of the points taken in Mrs Bradford's Notice of Appeal. That was done. During the course of those submissions there was received at the Employment Appeal Tribunal a three page facsimile from Mrs Bradford sent from a hotel in Turkey addressed to Mrs Hodgetts in this courtroom, and asking her to try her best and deliver the facts to the judges. She asked, if it was possible, to contact her if necessary. The PS states "explain I am working here". In the two pages attached Mrs Bradford sets out under the heading "Points of my case" the various grounds on which she contends that the Industrial Tribunal's decision was erroneous.

Copies of the facsimile were supplied to those involved in the case. Counsel were able to make and complete their submissions on the merits with the knowledge of the points Mrs Bradford would have advanced if she had been here. We indicated to the parties that, as there was no request in the papers for an adjournment, we would treat Mrs Bradford's facsimile as her written submissions on her appeal and decide the substantive merits of the case. We have also received other telephone calls during the day from Mrs Bradford's daughter, but it is not necessary to go into the details of those to explain this decision.

The substantive points made by Mrs Bradford on the decision relate to the alleged contractual position between her and her employers. The Tribunal set out in their full reasons the situation at the Kingstanding betting shop at the date of the transfer to Arthur Prince and the circumstances in which Mrs Bradford and the two other employees ceased to work there. The decision deals with the position of the three employees, sometimes dealing specifically with the case of one employee and at other times dealing with a point which the Tribunal understood to be common to all three of them. This method of writing a decision does not make for clarity and we shall have a few words to say about that.

The finding of the Tribunal on Mrs Bradford's complaint dealt first with her position.

"19. The Tribunal is satisfied that Mrs Bradford's position as a training officer did not have any contractual significance to the extent that any difference could be pointed between her terms of employment with Corals as compared with those which she was to receive from Princes. Princes did not have in their organisation an established position known as training officer and it is also doubted whether there was any such established position with Corals and that it was a matter of name only... In practical terms Princes agreed that she should act as training officer and receive remuneration on each occasion when she carried out a training exercise and this was done as a fact

20. With regard to her prospects to become a deputy manager this was of no binding contractual significance as far as either of the companies were concerned. It is clear that she had good prospects with Corals and it may well be that those prospects were not as good with Princes which was a smaller company and where the possibilities were not quite so great. The tribunal can find nothing in the change of circumstances to bring this case within such circumstances as would entitle her [Mrs Bradford] to say that she had been constructively dismissed."

They referred to the general principles in the leading case of Lord Denning in Western Excavation ECC v Sharp [1978] ICR 221. They concluded in the final paragraph of the decision that they were satisfied that there had not been any breach by the employer of the terms of employment such as to bring the case within constructive dismissal laid down in Western Excavation. They held that Mrs Bradford had resigned and brought her employment to an end. There had been no breach by the employer, such as to be constructive dismissal.

As to the third area of complaint, in relation to fringe benefits, the finding of the Tribunal was that none of the fringe benefits referred to in the evidence in the way of Christmas bonus, life assurance benefits and bonus shares with Bass were contractual. The conclusion of the Tribunal on the evidence was that all those benefits were discretionary. There had not therefore been any breach of contract in the discontinuance of those benefits by Arthur Prince. There was no constructive dismissal because there was no breach of contract. It was a case of a resignation.

In her Notice of Appeal and in her written submissions Mrs Bradford took a number of points. She complained that the Tribunal were wrong to conclude that her position as a training officer did not have any contractual significance. She referred to evidence that had been given before the Tribunal of the employment situation with Coral. She complained that she had in fact been demoted from a training officer to a cashier. She pointed out that evidence had been given to the Tribunal that she had enjoyed fringe benefits of the kind mentioned. She also complained that the Tribunal had failed to consider the provisions of the Acquired Rights Directive relating to the transfer of rights and obligations under a contract of employment.

In the facsimile submission she goes into a little more detail about loss of earnings and promotion prospects, the demotion in loss of status as a training officer and financial loss and opportunity due to that and to loss of confidence when Arthur Prince made it clear that Corals were insisting on staff being transferred, when they were only interested in acquiring the shop. There had been a change of mind concerning the terms of employment. She also complained of the abrupt manner of Mr Reynolds who dealt with her and the other employees. She concludes on these individual points that they all added up to a situation which made it impossible for her to continue her employment. That was the basis of her case of constructive dismissal.

We are unable to find in any of those points an error of law on the part of the Tribunal. In our view, the points made on behalf of the Respondents convincingly demonstrate that the Tribunal reached a decision which it was entitled to reach on the evidence without misdirecting itself on the legal position. Mr Carey, for Arthur Prince, emphasised two points: that Mrs Bradford's complaint was about demotion and fringe benefits. He pointed out the position on the evidence as regards her claim to be a training officer as well as a cashier and showed that there was evidence, which the Tribunal were entitled to accept, to the effect that she was employed as a cashier and had no contract of employment as a training officer. What payment she received for doing training work was in the way of supplements, not in the form of contracted remuneration. As to fringe benefits he was able to point also to evidence before the Tribunal which justified their conclusion that the benefits were not contractual.

To those points Mr Samek for Coral added a third point which was peculiar to the position of Coral Racing. He submitted that there was a jurisdictional point which affected his clients. That was that there had been a transfer of an undertaking by Coral to Arthur Prince and by virtue of the Transfer of Undertakings (Protection of Employment) Regulations. The transferor could not be made liable. All the liabilities were transferred to the transferee. He said that, if that was right, there was no jurisdiction in the Tribunal to hear an appeal by Mrs Bradford in relation to her complaint against his clients. On that point Mr Samek referred to the decision of the Employment Appeal Tribunal in Allen v Stirling District Council [1994] ICR 434 which appears to recognise that a transferor may be liable as well as a transferee. He submitted that the case was wrongly decided on the correct construction of the regulations. He adopted as part of his argument the comments of the editors of Harvey on Industrial Relations & Employment Law at page F/50 Vol I, that the decision was not correct and that it was clear on the regulations that "transferred" in Regulation 5(2) meant transferred and that would put his clients in the clear for any liability for alleged breach of contract.

We do not find it necessary to express a view one way or the other on the correctness of the case of Allen v Stirling. We are satisfied on the evidence we have seen in the Chairman's Notes and the findings of fact made by the Tribunal and the legal arguments advanced that there was no error of law by the Tribunal on the substantive question of constructive dismissal. The Tribunal were entitled, on the evidence which they heard, to conclude that Mrs Bradford had resigned and there was no constructive dismissal because there was no breach of any contractual obligation by the employer.

In those circumstances the appeal must be dismissed.

We would add two short points. The first is that we agree with the criticism made during the course of the hearing about the form of the decision. It was not satisfactory for the Tribunal to deliver one combined decision which failed to differentiate clearly the different factual issues that arose between, on the one hand, the three Applicants and, on the other, the two Respondents. By rolling all the complaints into one decision the Tribunal were unfortunately not as clear in their findings of primary fact as they might have been if the matter had been considered separately, application by application. It is preferable practice for industrial tribunals which decide, for good reasons, to hear cases together or consecutively, to give separate decisions in relation to each claim. It is not necessary to set out in every decision a repetition of all the facts which are common to both. There can be cross-referencing, but the discipline of separate decisions would make for greater clarity in dealing with the differences between each case. We were satisfied that the unsatisfactory form of this decision does not actually contain any error of law.

The second point concerns the costs. We were told by Mr Samek that, although he was not asking for costs in relation to the non-attendance of Mrs Bradford, he would be seeking an order. He wished to reserve his position on that. We invited him to make submissions on the alleged unreasonable conduct in relation to the appeal. Mr Carey preferred to make his submissions after he had heard our judgment. We indicated that we would not be giving judgment in Mrs Bradford's case until we had heard Mrs Hodgetts' case because there was a certain overlap. It might appear to be unfair to Mrs Hodgetts if we made decision on Mrs Bradford's appeal which appeared to pre-determine her appeal before her Counsel had advanced her arguments. So the position on costs is that we will not give our decision about that until we have given a chance to Mr Carey to make submissions on costs.

Mr Carey now makes an application for the costs to be paid by Mrs Bradford under Rule 34 of the Employment Appeal Tribunal Rules which confers on the Appeal Tribunal power to order costs against a party where any proceedings were unnecessary, improper or vexatious, or where there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings in the Tribunal.

Mr Carey submits that this case falls within the provisions of the rules. He relies particularly on two matters; that Mrs Bradford did not attend the hearing of the appeal, having been notified of the date of the hearing; she did nothing more until 10.00 am of the morning of the hearing when she notified the Tribunal that she was in Turkey. There had been no previous communication about her absence abroad, either with his clients or with the Tribunal. The matter had then had to be dealt with in a rather unsatisfactory way of faxed written submissions received during the course of argument this morning.

He made a second point. That was that at the preliminary hearing, when this Tribunal was persuaded to allow the matter to proceed to a full hearing, she had represented to the Tribunal that Coral had withheld documents from the Industrial Tribunal, but she had not subsequently taken any steps to identify those documents or to recover them and place them before the Tribunal. So the unreasonable conduct was in making allegations at a preliminary stage which were not pursued at the full hearing.

We have considered these criticisms of Mrs Bradford's conduct, but have come to the conclusion that we will not exercise our discretion to order costs against her. She appeared in person at the preliminary hearing. We take that into account in deciding to what extent she realised the effect of what she submitted. We also take account of the fact that, although she did not turn up for the hearing today, she did, through her faxed submissions and a Notice of Appeal, make points which enabled us to make a substantive decision on the appeal.

We would say that it is incumbent on parties to attend at the date fixed for the hearing, unless they have decided to abandon or withdraw their appeals. In cases where they do decide to abandon or withdraw appeals they should notify the Tribunal and the other parties to the appeal as soon as possible in order to save the expenditure of unnecessary costs and in order to avoid the serious disruption that late withdrawals without prior notice can cause to the listing of cases in this Tribunal. That disruption is to the detriment of other Appellants and parties who want their cases heard. Although we have criticisms for the way Mrs Bradford has behaved in this matter in not giving any prior notice of her absence abroad, we do not feel that this is such a serious case that we should depart from the normal practice of not ordering costs.

The appeal is dismissed. No order as to costs.