United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PURNELL (of Counsel) Tottenham Neighbourhood Law Centre 15 West Green Road London N15 5BX


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether Mrs Aparau has an arguable point of law in an appeal which she wishes to raise against the unanimous decision of an Industrial Tribunal held at London (North) on 11th March 1997. The Industrial Tribunal dismissed her application for unfair dismissal against Iceland Frozen Foods Plc, her former employers, by whom she had been employed as a checkout manageress or supervisor of their retail store at Wood Green.

The applicant was required to transfer to another branch. The employers believed they were entitled contractually so to require her to move. The applicant did not believe that she had a mobility clause in her contract and therefore the instruction was unlawful. She accordingly accepted what she considered to be their repudiatory breach by resigning by letter dated 20th July 1990. The Industrial Tribunal originally concluded that that there was no breach of her contract and therefore no constructive dismissal. However, there was an appeal to this Court and by a judgment reported [1996] IRLR 119, this Court concluded that there was no express or implied mobility clause in her contract of employment and that therefore the summary direction for transfer given on 19th July was a fundamental breach amounting to constructive dismissal.

The Industrial Tribunal was invited then to consider the question of whether the dismissal was fair or unfair, and by their decision to which I have referred, it was the conclusion of the Industrial Tribunal that the dismissal was not unfair.

It seems to us that this is a case which raises questions as to the correct approach of an Industrial Tribunal when dealing with a constructive dismissal case of this sort.

The first question which arises is what is the reason for the dismissal? The Industrial Tribunal concluded that the reason for the dismissal was some other substantial reason of a kind such as to justify the dismissal. It seems to us that it is arguable as to what is the correct question a tribunal should ask themselves when dealing with a constructive dismissal of this kind. Is the tribunal required to examine why the unlawful instruction was given? Is the tribunal required to ask itself what would have happened had the unlawful instruction not been given? What is the relevance of the employer's ignorance of his contractual rights?

It will be appreciated in this case that Mrs Aparau was given just over 12 hours notice of the change which was to take place. It seems to us most unlikely that had the employers appreciated the true nature of the contractual relationship between them that she would have been treated in the way that she was and we consider that there are arguments to be raised as to the extent to which the employers were duty bound to consult with her in a way different from that which they did.

Accordingly, it seems to us, to be arguable:

(1) that the Industrial Tribunal misdirected itself as to the reason for the dismissal;

(2) that the Industrial Tribunal misdirected itself as to the approach to a case where an employer has acted unlawfully in breach of contract; and

(3) has failed to give proper and due consideration to the need for consultation having regard in particular to the fact that Mrs Aparau was the mother of a child who was in education.

We consider that this is a case which should be listed for hearing before His Honour Judge Peter Clark. We will mark it in that way. The appeal will take no longer than a day. Notes of Evidence will not be required. There will be leave to amend the Notice of Appeal to strike out the existing paragraphs in the Notice of Appeal and to substitute for them the points, properly drafted, that are indicated in this judgment. Those will be the only points which can be argued, without further leave of the Court at the hearing. In default of the Notice of Appeal being amended within 14 days of today's date, the appeal will be dismissed.