United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1271_95_1305

Appeal No. EAT/1271/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th May 1996

HIS HONOUR JUDGE B HARGROVE Q.C.

MRS T A MARSLAND

MR A D SCOTT

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THE CROWN & CUSHION HOTEL          APPELLANTS

MRS KIRTON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellants MR GASKELL

E.L.A.A.S.


 


JUDGE HARGROVE Q.C.: By reasons given on 25th October 1995, the Industrial Tribunal came to the conclusion that Mrs Kirton had been constructively dismissed. The basis of that was that she had been the manageress of a hotel and she had been replaced by Mr Saunders. The tribunal found a number of facts which it sets out in detail, directed itself upon the law in accordance with Western Excavating (ECC) Ltd v Sharp and then found as follows:

"12 She was not for a moment treated by Mr Fraser as the Manager or even as the person who has been employed by Mrs Coomber as the Manager prior to the takeover. She was treated like one of the staff and had to observe a much younger person (Mr Sanders is only 21, whereas Mrs Kirton was 30 years older) taking over the management role. No doubt Mr Fraser meant to treat her properly, but he did not treat her as the Manager. He was in breach in the terms of her contract as Manager and she was entitled to resign in response to that breach. She was constructively dismissed."

What is said about that is that the tribunal erred in finding constructive dismissal because there was no finding of the terms of the contract or which of them had been breached, or which of them was a significant breach. It is quite clear that what the tribunal was saying and it is unarguable, is that she was ousted. It was then said under paragraph 14 the Transfer of Undertakings Regulations dealt with the question of whether there was an economic, technical or organisational reason entailing changes in the workforce, they went on to hold that in fact there had been a change, but that applying Section 57 the activity of the appellants was such that it was not a reasonable response, because no steps had been taken for any proper consultation. The basis put forward now is that he was not to know that Mrs Kirton was unhappy, Mrs Kirton being worried and having apparently kept her head down, if I may use a colloquialism.

The tribunal's findings cannot be attacked upon that ground. It is quite plain that what they are saying that it was one of the duties was to consult, that was not done particularly before changes of such a sweeping nature, and accordingly it was not within the range of reasonable responses of a reasonable employer.

Today it is said that upon the review there was no evidence before the tribunal that Mrs Kirton was the No.2 working below the previous owner. They say that that is a fresh finding of fact. It is clear if one reads the decision carefully, that never for a moment has it been suggested that Mrs Kirton and the previous owner were upon a parallel and equal footing, there is nothing on that basis either.

Accordingly, there is no arguable point of law in this case, and the appeal is dismissed.