United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHAEL J STOKES (Friend)


 


JUDGE PETER CLARK: The principal issue in this case, which came before the Sheffield Industrial Tribunal on 17 December 1996, was whether or not the Applicant, Mr Anderson was dismissed by the Respondent employer, Mr Barraclough. It was a case of alleged constructive dismissal. The Respondent denied dismissal.

We take the facts from the Tribunal's extended reasons dated 22 January 1997.

The Applicant was a long-standing employee, having started in the Respondent's farming and road haulage business in 1972. He was a willing worker, who took on any odd jobs given to him. The Tribunal described him as a driver/mechanic/general farm worker.

The material events leading to the Appellant's resignation on 14 September 1996 were in dispute. The Tribunal, having seen and heard the witnesses, preferred the Respondent's account, which they thought was straightforward and compelling, to that of the Appellant, whom they found to be muddled and unconvincing.

In the early 1990s the Respondent's fleet of vehicles and drivers steadily reduced until by 1994 there was only the Appellant retained as a driver. When there was no driving work he worked on the farm. In May 1996 one of the Respondent's major customers gave notice that their requirements would be steadily diminishing in future. As a result the Respondent decided not to up-date his one remaining vehicle. In June 1996 the Appellant told the Respondent that another customer was thinking of purchasing the Respondent's vehicle and that he, the Appellant, was considering going to work for that customer. On that basis the Respondent agreed a price for the sale of the vehicle to that customer.

The Respondent made it clear that there would always be a job for the Appellant in the business, although it may involve some long-distance driving. However, the Appellant said that he would prefer local work at his age, 57, and he would work for a lower wage for the customer who was thinking of purchasing the Respondent's vehicle.

On 13 September 1996 the Appellant said that he had decided not to leave after all. Then, at 5 pm the following day, he said that he would be leaving to start work with that customer on Monday 16 September. He would not be attending for work on the intervening Sunday.

The Industrial Tribunal directed themselves in accordance with Section 95(1) of the Employment Rights Act 1996 and concluded that the Respondent was not in repudiatory breach of contract, but that the Appellant had chosen to resign because at his age he no longer wished to engage in long distance haulage work or work on the farm. There was no dismissal. Accordingly the claim for a redundancy payment failed.

The Appeal

We should deal first with a preliminary application made by Mr Stokes to adduce further evidence before us on appeal. That evidence consists of a letter from Solicitors, Messrs Keeble Hawson, dated 12 March 1997 and addressed to the Appellant. Those Solicitors were instructed by insurers of the Respondent in connection with an accident to a third party who was injured on 1 December 1994, when it was alleged a leg of one of the Respondent's trailers collapsed. The Solicitors say in their letter that they understood that the Appellant was employed as a mechanic and carried out maintenance work on the Respondent's trailers. He was asked to assist the Solicitors with their enquiries into the accident.

The power to give directions as to the admission in evidence of any documents on appeal is contained in Rule 24(5)(c) of the Employment Appeal Tribunals Rules 1993. The principles on which further evidence, not adduced before the Industrial Tribunal, will be admitted before the Employment Appeal Tribunal are set out in the EAT decision in Wileman v Minilec Engineering Ltd [1988] ICR 318, in turn based on the principles in the Court of Appeal case of Ladd v Marshall [1954] 1 WLR 1489. They are, first that the new evidence has become available for the first time since the Industrial Tribunal hearing and its existence could not have been reasonably known or foreseen at the time of the hearing; the Solicitor's letter of 12 March 1997 appears to pass that requirement; secondly that the evidence was relevant, probative and likely to have an important influence on the outcome of the case. We asked Mr Stokes how the letter is said to be significant on the issue of constructive dismissal. He submits that it shows that the Appellant was employed as a driver/mechanic, not a farm worker. In our view the letter would not have advanced the Appellant's case before the Industrial Tribunal one jot, let alone have an important influence on the outcome. The Solicitors were merely observing that the Appellant worked as a mechanic during his employment. That was common ground, and formed part of the Tribunal's finding. In our view there is no ground made out for admitting this letter in evidence before us.

We turn now to the substantive appeal, reminding ourselves that the question as to whether an employee has been constructively dismissed is, absent perversity, essentially a question of fact for the Industrial Tribunal. See O'Kelly v Trusthouse Forte Plc [1983] ICR 728. We can only interfere where an error of law on the part of the Industrial Tribunal is revealed.

Mr Stokes submits that from June 1996 there was effectively no work for the Appellant to do. That was not the finding of the Industrial Tribunal. They accepted the Respondent's evidence that there would always be a job for him and, of course, he continued to be paid.

But before us Mr Stokes added a further point. He said that when the Appellant changed from a commission paid basis to a "fall back" wage he suffered a loss of about £100 per week. That important suggestion does not appear in the form IT1, the Industrial Tribunal reasons, nor indeed the Notice of Appeal. We are not prepared to entertain it at this late stage.

In our judgment this appeal is an attempt to reopen the factual issues which were decided by the Industrial Tribunal. That is not permissible. No point of law is raised in this appeal and accordingly we must dismiss it.