United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1343_95_0507

Appeal No. EAT/1343/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 July 1996

Before

THE HONOURABLE MR JUSTICE BUCKLEY

MRS E HART

MR T C THOMAS CBE

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MISS N AGWARA          APPELLANT

HOMELEIGH NURSING HOME FOR THE ELDERLY           RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MS M PHELAN

(of Counsel)

Messrs Chetty & Co

Solicitors

1st Floor

270 Streatham High Road

London SW16 6HE


 


MR JUSTICE BUCKLEY: This is a preliminary hearing to see whether this matter should go to a full appeal. The decision sought to be appealed is the decision of an Industrial Tribunal at Stratford, which was held over several days in March, June and September of 1995.

The Appellant was a Matron at a home run by the Respondent, Homeleigh Nursing Home for the Elderly, run by Dr and Mrs Khan.

Two points, essentially, are raised. One is that the Tribunal went wrong in law about the question of constructive dismissal. That Ms Phelan has done her best with but, in the end, has had to concede that it is a difficult argument to establish. She did produce an amended ground of appeal, for which we are very grateful, but in view of the approach of the Tribunal, which is manifest from paragraphs 22 and 23, but particularly 22, we found it very difficult to identify any point of law. The Tribunal has enunciated the correct approach to this sort of case in law, namely, that they need to find a repudiatory breach by the Respondents and, more than that, that that repudiatory breach was accepted by the Appellant in the sense of the Appellant terminating her employment because of that repudiatory breach. It is perfectly plain that the matter was carefully investigated. There was an exhaustive hearing into all the complaints that were made both ways but in the end, despite numerous criticisms of the Respondents, the Tribunal were unable to make the necessary findings of fact to constitute constructive dismissal.

We can see no point of law that arises. Their approach was correct in law and it is not, of course, for us to rehear the matter on the facts. The appeal on that basis would have to be dismissed.

However, Ms Phelan does draw to our attention one other matter. It is that the Appellant was claiming some enhanced rate of pay for weekend and holiday working. It is apparent from the papers before us that that issue was raised. It was denied by the Appellants and we refer to page 16, their grounds for resisting the application. The Respondents denied that any decision to pay such increased rates was ever taken, so the point was in issue before the Tribunal and that much is also plain from the Tribunal's decision. However, unless we are to infer from the final paragraph 23 of quantum calculations that the Tribunal must have held against the Appellant on that issue, we can find no other reference to it in the extremely clear and helpful extended reasons and that potentially could raise a point of law, namely, that the Tribunal have overlooked in some way and failed to resolve an issue that was before them. We are reluctant to come to that conclusion because the point was placed before the Tribunal and we have a very careful and detailed decision from them and it would surprise us if, in the course of their deliberations, they had in fact overlooked that point completely, particularly as they do mention it at the beginning of the decision.

What we, therefore, propose to do to try to get to the bottom of that is to adjourn this preliminary hearing and to direct that a letter be written to the Chairman, either enclosing a copy of our remarks, if that is the most convenient way of doing it. If it is not, then simply pointing out to the Chairman that a point has been taken at this hearing that the question of enhanced holiday and weekend pay, whilst identified in the decision, was not dealt with and inviting the Chairman to look at his notes and see what the position was. If the position is that it did come to be overlooked, for whatever reason, doubtless the Chairman would accept an application for review on that point, albeit it would be out of time. Alternatively, if the matter was dealt with we would invite him to add some very short reasons dealing with the point or indicating how it was dealt with, so that this Tribunal can see whether any point of law arises on that or not.