United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED


 


MISS RECORDER SLADE QC: This is a preliminary hearing of an appeal by Mrs Coad from the decision of an Employment Tribunal that Mrs Coad had unfairly dismissed Mrs Blows, a shampooist at her hairdressing salon.

1. We have been shown a fax from the Citizens Advice Bureau, who have been assisting Mrs Coad. The fax indicates that a CAB representative will not appear on behalf of Mrs Coad this morning and in those circumstances we will proceed to consider this matter on the papers.
2. The Tribunal gave extended reasons for their decision on 24th January 2000. The Tribunal had before it the Originating Application served by Mrs Blows. In that Originating Application Mrs Blows had contended that her employment come to an end on 28th May 1999. In giving details of her complaint she stated that:

"Mrs Amal [Mrs Coad] dismissed me on 28.05.99 with immediate effect and with no prior warning. …"

By her Originating Application Mrs Blows was thus contending that there had been a dismissal pursuant to s.95(1)(a) of the Employment Rights Act 1996 on Friday, 28th May 1999. The Employment Tribunal held that there was no dismissal by the employer under s.95(1)(a). The Tribunal however went on to find that there had been a constructive dismissal on the following Tuesday and that the reason for that constructive dismissal was the conduct of the employees and that the reason for dismissal within s.98(2)(b). The Tribunal further went on to hold that the dismissal was unfair.

3. In our view it is reasonably arguable that the Employment Tribunal erred in law in finding a constructive dismissal when Mrs Blows had asserted an earlier actual dismissal and had not asserted that she had accepted a repudiatory breach by her employer.
4. Further, it is reasonably arguable that a finding of dismissal for misconduct is inconsistent with a finding of constructive dismissal. In addition, we consider that it is arguable that it is perverse for the Tribunal to hold that "a failure by Mrs Coad to address the situation of strained relations with staff, amounted to a repudiatory breach of the implied term of trust and confidence." Yet further, it is arguable that the tribunal erred in holding that, in the circumstances, it was not necessary for the employee to communicate the alleged termination expressly, in other words, to communicate an acceptance of a repudiatory breach.
5. Thus, our conclusion is that this appeal should be allowed to proceed on the grounds outlined above. An amended Notice of Appeal should be served within 21 days. Skeleton arguments should be exchanged no later than seven days before the date of the hearing of this appeal and the time estimate for this appeal is half a day.