United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J QUIGLEY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE BUTTER QC: This is the preliminary hearing of an appeal by Mr Jones against a decision of the Industrial Tribunal at Birmingham on 16 July 1996. The Tribunal sent out its Extended Reasons for their decision on 8 August 1996. Today, the Applicant has been represented by Mr Quigley, to whom we are grateful for his assistance. The unanimous decision of the Tribunal below was that the Applicant was not constructively dismissed and accordingly that his application failed.

Before the Tribunal there was an issue as to whether he had in fact resigned or not, but the Chairman of the Tribunal, fairly, it seems to us, decided that for the purpose of the hearing, it would proceed on the basis as though there had been a dismissal as distinct from a resignation.

There was a conflict of evidence before the Tribunal and the Tribunal expressly stated that wherever there was such a conflict, they preferred the evidence of the Respondents to that of the Applicant.

In paragraph 6 of the Extended Reasons they refer to a letter of 19 January 1996. I need not refer to the text of that letter, which is set out in the Reasons but the relevance of it is, that it is, and was, the Applicant's case that he had been promoted from driver to the position of manager. It was in those circumstances that he felt a sense of grievance when, on 5 March 1996 he was told, apparently by other drivers, that he was to drive Round 23 that day. He checked the roster and found that he, indeed, was named to drive that round. He became angry. He felt that that meant that he had been demoted to the position of delivery driver. He walked out and did not work again that day. He wrote a letter of resignation, which is not material for the purposes of today's hearing, but because he had walked out a disciplinary hearing was instituted by the employers.

The Applicant attended that hearing, contending however, it would seem, that it was of no relevance because he had already resigned. Be that as it may, the decision at the hearing was that the Applicant was dismissed. He contended before the Industrial Tribunal that his contract of employment had been breached because he was expected to be delivery driver and that the breach was fundamental because he had been, in effect, downgraded from the position of manager to driver.

The Tribunal considered the provisions of Section 55(2)(c) of the 1978 Act. They referred to one specific authority Western Excavating (ECC) Limited v Sharp [1978] ICR 221, and correctly, in our view, stated the law. They concluded that the unanimous decision was that the Respondents did not breach the contract of employment, whether fundamentally or otherwise, and they were satisfied that, at the material time, the Applicant's duties included driving and that in consequence the Respondents were entitled to ask the Applicant to drive Route 23 on the relevant day. They rejected the Applicant's argument that being asked to carry out such duties amounted to demotion.

The Applicant (the Appellant today) says that he was at a disadvantage before the Industrial Tribunal. He is dyslexic and he felt that he was not permitted to put his case sufficiently to the Industrial Tribunal. He is also concerned that there were a number of witnesses whom he had wished to call, but was unable to do so because the employers had not been willing to disclose their addresses. He felt that evidence from them might or would have helped him in his case, to show that the other drivers at least regarded him as a manager, rather than a driver.

Today, we have to consider whether there is any reasonably arguable point of law. If there is not, there is no point in the matter going further. If there is, then we would certainly allow it to go further.

Having considered the matters put before us and having heard Mr Quigley addressing us, we come to the clear and unanimous conclusion that there is no reasonably arguable point of law here.

In these circumstances and for these reasons we would do no service to the Appellant by allowing the case to go forward and accordingly the appeal fails and must be dismissed.