United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WEST (Senior Advocate) Peninsula Business Services Ltd Stamford House 361-365 Chapel Street Salford Manchester M3 5JY


 


JUDGE PETER CLARK: The respondent to this appeal, Mr Tyler, was employed by the appellant, Mr Smith, as a driver/shop assistant from 5th April 1994 until he resigned that employment on 30th May 1997 in circumstances which, he alleged in his Originating Application to the Industrial Tribunal, amounted to constructive dismissal. By his Notice of Appearance the appellant denied the dismissal and then set out his case in summary in a letter attached to that Notice.

The matter was heard by the Southampton Industrial Tribunal on 6th November 1997. The principal facts, as found, were these. Although the respondent was not issued with a written statement of terms and conditions of employment, his hours of work were 40 hours per week, worked between 9-5.30 p.m. each weekday, allowing for some half an hour's flexibility.

In April 1997 the appellant decided, in the light of the state of his business at that time, to implement a change in working hours. At a meeting with the respondent he proposed the following changes; his new hours of work would be Monday 8 a.m. to 4.30 p.m.; Tuesday and Wednesday 9 a.m. to 5.30 p.m.; Thursday and Friday 10.30 a.m. to 7 p.m.. The respondent was unhappy with that proposal. He made a counter-proposal. He would work late on Thursday but not Friday. That was not acceptable to the appellant. The respondent decided to give the new hours a try after his return from holiday, which was then due in three weeks time.

Having returned from holiday, and taken advice, the respondent wrote to the appellant on 23rd May, asking for a written contract of employment, and stating that he was not happy with the changes and would return to his normal hours of work from 20th May. The appellant's response was to telephone the respondent and tell him that he was suspended until the following Wednesday. He wanted to make the suspension without pay, but was advised by ACAS that this could not be done.

A meeting then took place at which the respondent was given a draft contract of employment stating that he would be required to work 40 hours a week, the hour "to suit the company's needs" and a day off to be decided by the company's needs.

The respondent asked for time to consider the matter and was told that he could revert to his original hours of work for three weeks, being the period of notice of change of his terms of employment as advised by ACAS, but thereafter terms of the new contract would be enforced. The respondent considered the matter and on 30th May tendered his resignation.

The tribunal, in extended reasons dated 24th March 1998, concluded that the appellant's attempt to change the working hours amounted to a fundamental breach of the contract, entitling the respondent to treat himself as constructively dismissed, and that such dismissal was unfair. Against that decision the appellant now appeals.

Constructive Dismissal

Mr West, on behalf of the appellant, accepts that the appellant may have been in breach of contact but submits that such breach was not a fundamental or a repudiatory breach, entitling the respondent to treat himself as discharged from further performance.

He also submits that the tribunal in their extended reasons did not make it clear whether the material breach was a breach of the implied term of mutual trust and confidence or whether the breach related to the change in working hours. It seems to us, having had the benefit of seeing the summary reasons which were promulgated on 17th February 1998, that this tribunal took the view that the employer was in breach of both terms, and that overall that amounted to a repudiatory breach of contract.

In our view, the breaches were such that it was open to the Industrial Tribunal to characterise them as fundamental, such as to amount to constructive dismissal. In these circumstances, we reject the appeal against the finding of constructive dismissal.

However, Mr West takes a further point. He submits that it was apparent from the letter of 16th September 1997 which was attached to the formal Notice of Appearance, that this unrepresented respondent was taking the point that if there was a dismissal it was for some other substantial reason, that is re-organisation of the business arising from the difficulties in which it found itself at the time, and that that dismissal was fair for that reason.

It is quite clear to us that the point was not articulated in the Notice of Appearance in the way which it is now put by Mr West. We have in mind the recent reaffirmation by the Court of Appeal in Jones v Burdett Coutts School [1998] IRLR 521 of the long-standing principle that this Appeal Tribunal should not allow a new point of law to be raised for the first time on appeal, save in exceptional circumstances. If this is truly a new point, we should have dismissed the appeal here and now. However, we think that the principal point which requires full argument is this. Did the respondent sufficiently raise the alternative argument that if there was a dismissal it was for some other substantial reason and was fair, such that the Industrial Tribunal were obliged to address and adjudicate on that point. On the other side, it may be said for or by Mr Tyler, who was also unrepresented below, that he did not come to meet that case, and that accordingly the case was not dealt with by the tribunal on that basis. This is a matter for argument at the full appeal hearing. For present purposes, it is enough that we think the point is arguable, and accordingly, the matter will proceed to a full hearing on that point and the consequential effect on the tribunal's assessment of compensation.

The hearing will be listed for half a day, Category B. The Notice of Appeal is varied as follows: points (i) and (ii) of Paragraph 5 are deleted in the light of our judgment, but (iii), (iv) and (v) remain.