United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M LEWIS - DIRECTOR (Representative) Topmark Promotions Ltd The Five Miles From Anywhere No Hurry Inn Upware Ely Cambridge CB7 5YQ


 


JUDGE CLARK

1. Mrs Bryson, the Applicant before Bury St Edmonds Employment Tribunal, commenced these proceedings brought against the Respondent, Topmark Promotions Ltd, by an Originating Application dated 13 July 1999 in which she complained of constructive dismissal.
2. She had been employed by the Respondent and its predecessor from 1986 until her resignation in April 1999. The Respondent had acquired the hotel business in which she had worked in circumstances amounting to a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 1981. It was her case that the Respondent had unilaterally reduced her hours of work, and consequently her wages, entitling her to treat herself as discharged from further performance.
3. The claim was resisted. The Respondent entered a Notice of Appearance dated 9 August 1999 in which they denied any breach of contract. It was suggested in that document that she requested time off work and chose to reduce her hours of work. Specifically this was said in paragraph 10 of the grounds for resistance
4. It was put to her that maybe a suitable way forward would be to reduce her standard hours to 40 thereby being so abiding by current EC legislation's. This was neither agreed or disagreed.
5. The case came on for hearing before an Employment Tribunal sitting on 14 December, 1999 the Applicant appeared in person. The Respondent did not appear and was not represented.
6. The Employment Tribunal proceeded with the case and having considered the Applicant's evidence and the Respondent's Notice of Appearance the Employment Tribunal accepted, as appears from their decision with extended reasons promulgated on 16 February 2000, the Applicant's case that following the transfer the Respondent unilaterally reduced her hours of work in circumstances amounting to constructive dismissal and that that dismissal was unfair. They went on to assess compensation in the total sum of £8,582.92 in favour of the Applicant.
7. Against that decision the Respondent appealed by a Notice dated 28 February 2000. The sole ground of appeal there set out was that the Respondent had not received notification of a new date for the Employment Tribunal hearing. An earlier date of 22 October 1999 having been cancelled.
8. We are told today by Mr Lewis who appears on behalf of the Respondent Topmark, that Topmark have made an Application for review of the Employment Tribunal's decision and that a review hearing date is due to take place on 11 May 2000.
9. This morning he wishes to argue that the Employment Tribunal's decision was wrong because it failed to take into account the effect of the working time regulations implementing the working time directive. We have pointed out that that argument is nowhere set out in his grounds of appeal .
10. In these circumstance without dissent from Mr Lewis we think the appropriate course to take is as follows:
11. We shall adjourn this preliminary hearing generally with liberty to restore. Topmark are to lodge amended grounds of appeal within 21 days of today, setting out their case on the working time regulations.
12. If in the meantime the review application before the Employment Tribunal is successful, it will be a matter for Topmark to decide whether or not to withdraw the current appeal. If that decision is taken they should notify the Employment Appeal Tribunal immediately. Otherwise the preliminary hearing will be relisted following receipt of the amended grounds of appeal.