United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr M Sethi (of Counsel)
For the Respondent


 


HIS HONOUR JUDGE PETER CLARK

1. The Appellant, Mrs Sinclair resigned from her employment with the Respondent on 13^th March 1998. She then presented a complaint of unfair constructive dismissal to the Employment Tribunal on 12^th June 1998. That complaint came before a Tribunal sitting at London South over 3 days followed by 2 days deliberation in Chambers. By a reserved decision with extended reasons promulgated on 19^th June 1999, the Tribunal found by a majority that she was not constructively dismissed. Accordingly the complaint failed. It is against that decision that this appeal is brought.
2. The Employment Tribunal's reasons are detailed and do not require repetition here. It is sufficient to say that the Appellant commenced employment in 1980 with Freemans Plc in a part-time clerical position. By August 1995 she was responsible for the Homes Department of Freemans and for the relatively new business of "The Source". Freemans was then part of the Sears Group. In May 1996 a transfer of that part of the business in which he worked took place and her employment was transferred to the Respondent Fritz. The events leading up to her resignation are fully set out in the Tribunal's reasons.
3. This appeal focuses in our view, on a meeting which took place on 11^th November 1997, followed by a letter to the Appellant from Peter Ward, the Respondent's Regional Director, dated 18^th November. The relevant findings of fact are set out in paragraphs 30-36 of the Tribunal's reasons. The findings and conclusions of both the majority and the minority members as to the nature of that meeting and the subsequent letter and its effect on the Appellant's case that the Respondent was in fundamental breach of contract appear at paragraphs 54-60. We have also been shown the letter of 18^th November. Mr Sethi submits:

i) that the majority's findings that the meeting of 11^th November was not a disciplinary meeting and the letter of 18^th November was not a disciplinary warning is perverse in the sense that those were findings unsupported by or indeed contrary to the evidence before the Tribunal, (see Piggott Brothers –v- Jackson (1992))ICR 85 and

ii) that had the majority properly construed the evidence they might have concluded, first, that the Respondent was in fundamental breach of contract, either because there was here a breach of the contractual disciplinary procedure or alternatively, as did the minority member, that the circumstances were such as to amount to a fundamental breach of the implied term of mutual trust and of confidence.

4. We consider that in so submitting Mr Sethi has raised an arguable point of law to go forward to a full appeal hearing. We say no more about it at this preliminary stage. He has also argued that a patent misdirection in law appears at paragraph 50 of the reasons. Having considered that submission, we see nothing in it and we reject it. Accordingly, the case will proceed on the basis identified above only, without the need for formal amendment of the Notice of Appeal. For that purpose we give the following directions: the case will be listed for half a day, category C; there will be exchange of skeleton arguments and copies lodged with the Court not less than 14 days before the date fixed for the full hearing. We see from the Respondent's PHD form a request for Chairman's Notice of Evidence. No such request is made on behalf of the Appellant. We are not, at this stage, minded to make any order for Chairman's notes, however both parties have liberty to apply directly to me in writing setting out in accordance with the practice direction the precise issue to which the notes go and precisely whose evidence and what part of that evidence are sought. I shall then give a ruling if such an application is made.