United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK: This is an appeal by Ms Nelson against a decision of the Hull Employment Tribunal sitting on 22nd March 1999 dismissing her complaints of unfair dismissal, sex discrimination and breach of contract. That decision, with extended reasons, was promulgated on 31st March 1999.

1. The appellant does not appear before us today, but has asked us to consider the appeal on the basis of written submissions lodged on her behalf. That we have done.
2. The appellant commenced employment with the respondent as a sales administrator in September 1992. During her employment she was appointed accounts administrator and took qualifications relating to accountancy and subsequently a business management degree course.
3. She took maternity leave prior to the birth of her first child and then returned to work without incident.
4. On 10th August 1998 she left again on maternity leave. Her work was covered by a temporary worker recruited from an agency.
5. In October 1998 she contacted the UK Director, Mark Bayston to discover that on her return to work she would be required to revert to the sales administrator role. The accountancy function was transferred to the Dublin office.
6. The appellant saw this as a demotion. On 29th October she tendered her resignation. She then promptly obtained another job.
7. By her Originating Application presented on 20th November 1998 she complained of constructive dismissal and a failure to allow her to return to work pursuant to s.79 of the Employment Rights Act 1996. She also complained of direct sex discrimination and breach of contract.
8. The sole point taken in the appellant's written representations relates to the tribunal's finding that she was not constructively dismissed.
9. The tribunal found that at the time when the appellant resigned matters were still in negotiation. No notice of dismissal had been given to her by the respondent. Had the appellant given a definite date for her return to work then the point would have been reached, presumably, when she might have claimed that there was a breach of contract. In the words of the tribunal she seemed to jump before she was pushed. There was no dismissal.
10. It is submitted on behalf of the appellant that there is an inconsistency between the tribunal's finding that the respondent had made it plain that her role in accounts was no longer there, but that there was no breach of contract by the respondent.
11. We think that there is an arguable point of law in this appeal. It is whether the tribunal failed to consider whether, on their findings of fact, the respondent was in anticipatory repudiatory breach of contract in response to which the appellant left, giving rise to a constructive dismissal. The fact that negotiations were continuing as to alternative employment in her original role as sales administrator may be relevant at the next stage of the enquiry, namely whether there was a suitable alternative vacancy for the purpose of s.81(2) of the Act. However, the tribunal never reached that stage, having found that there was no dismissal.
12. On this narrow point as to the issue of constructive dismissal only we shall allow the matter to proceed to a full hearing. It will be listed for two hours, Category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the appeal hearing. In circumstances of the limited point on which this case is proceeding to a full hearing it will not be necessary to have Chairman's Notes of Evidence.