United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: From and since 18th August 1995 the appellant, Mr Woodhall, was employed by the respondent as a bakery operative at their Newcastle bakery. On 17th June 1996 he presented a complaint of unfair dismissal and/or breach of contract and unlawful deductions from his wages to the Employment Tribunal. At that time he was still employed by the respondent and has remained employed by them until last Friday, 16th October 1998, when he was made redundant.

The basis of both the unfair dismissal claim and the breach of contract claim was that the respondent had fundamentally breached his contract of employment. We are not concerned in this appeal with the unlawful deductions claim.

In a decision with extend reasons promulgated on 12th December 1997 an Employment Tribunal sitting at Newcastle found that the respondent was in breach of clause of the appellant's contract of employment by changing his shift pattern. They went on to find that the changes were not so substantial as to amount to the withdrawal of the whole contract such as to amount to actual dismissal within the meaning of s. 96(1)(a) of the Employment Rights Act 1996. They then went on to find that there was no constructive dismissal within the meaning of s. 95(1)(c) of the Act.

The tribunal went on to direct that the matter be adjourned for assessment of damages flowing from the breach of contract as found. Further, they held in the alternative that if there was an actual dismissal contrary to their finding under s. 95(1)(a) of the Act the effective date of termination was 18th February 1996, and that claim was therefore prima facie out of time. Unless the alleged actual dismissal was abandoned by the appellant, the question as to whether it was reasonably practicable to present the complaint within time was also adjourned.

In relation to that decision the respondent employer did two things. They appealed the decision to this Appeal Tribunal (ref. EAT/231/98) and they made application to the Employment Tribunal for a review. The Employment Tribunal granted the application and a review hearing was held on 10th March 1998.

The basis of both the appeal and the review of application was that, having found that there was no dismissal, the Employment Tribunal had no jurisdiction to consider the claim for damages for breach of contract under the Industrial Tribunal Extension of Jurisdiction (England & Wales) Order 1994. The extension of the tribunal's jurisdiction to hear breach of contract claims is limited under the Order to claims arising on the termination of employment. The Employment Tribunal accepted that submission and varied their original decision holding that they had jurisdiction to entertain the breach of contract claim. They then went on to find that the claim for unfair dismissal and breach of contract based on actual dismissal was out of time, it being reasonably practicable to have presented such a claim within three months of 18th February 1996 when the change in shift pattern took place. That review decision rendered the respondent's appeal to this Appeal Tribunal redundant, and it has been withdrawn. However, in that appeal the appellant before us, Mr Woodhall, put in a cross-appeal. It is in relation to that cross-appeal that this preliminary hearing has been convened to determine whether or not the cross-appeal raises any arguable point or points of law to go forward to a full appeal hearing.

It is the appellant's case that the Employment Tribunal, in its original decision, erred in finding that there was no constructive dismissal. He submits that the respondent was in fundamental breach of contract and that such breach was accepted by him at the termination of the grievance procedure which he invoked, that is on 26th April 1996. Accordingly his claim of constructive dismissal was within time, dismissal not having taken effect until that date, which is less than three months prior to the presentation of the complaint on 17th June 1996.

It seems from the Employment Appeal Tribunal decisions in Hogg v Dover College [1990] ICR 39 and Alcan v Yates [1996] IRLR 327, that an employee may be dismissed, either actually under s. 95(1)(a) where the employer has departed so substantially from the original terms of the contract as to effectively withdraw the whole of that contract, or constructively under s. 95(1)(c), where the employer's repudiatory breach is accepted by the employee, even although the employee remains in the employment under new terms imposed on him by the employer and worked under protest by the employee.

In paragraph 14 of their extended reasons for the original decision the Employment Tribunal say this:

"14 ... We therefore find that had he [the appellant] terminated the contract he would have been entitled to terminate it by reason of the employer's conduct. He did not however terminate the contract. He is still working for the respondent."

Pausing there in the preceding paragraph, paragraph 13, the tribunal reject the contention of the respondent that the appellant accepted the change from night shift to day shift. They there say:

"13 ... He strongly protested and made it clear he was only continuing to work under protest."

The finding in paragraph 14 suggests to us that had the appellant left the employment he would have been found by this Employment Tribunal to have been constructively dismissed, the respondents having been in repudiatory breach of contract.

However in paragraph 15 of their reasons, having found that the respondents departure from the original terms of the contract was not so substantial as to amount to the withdrawal of the whole contract thereby giving rise to an actual dismissal under s. 95(1)(a), the tribunal go on to say this:

"15... Both Hogg and Alcan related to express dismissals although in Hogg it was considered that ... "alternatively the fundamental changes in the terms of employment were such that the applicant had been constructively dismissed and that he could not be said to have affirmed by his subsequent conduct what was a totally different contract of employment". We have some difficulty in relating this to a constructive rather than an express dismissal. Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is dismissed by his employer if (and only if) "the employee terminates the contract under which he is employed ...". The applicant did not terminate the contract. We find that there was no constructive dismissal."

The point which we think arises for argument in this appeal is whether the Employment Tribunal erred in law in holding that although the respondent was, apparently in repudiatory breach for the purposes of finding constructive dismissal had the appellant left the employment, he could not be said to have been constructively dismissed where he continued in the employment, albeit under protest.

It seems to us arguable that that latter finding is inconsistent with the ratio in both Hogg and Alcan. Accordingly, we shall direct that this matter be listed for a full appeal hearing, Category B, time half a day. No further directions are necessary.

There is one final matter. Although we have no power to make a Legal Aid Order, we should make it clear that in our opinion this is a point which requires experienced Counsel to argue it on both sides. We hope that this indication may assist the appellant, who is currently unemployed, in any application he may make for Legal Aid for the purpose of the full appeal hearing.