United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN FALKENSTEIN (of Counsel) Messrs Stuart Cohen & Mae Solicitors 207 City Road Cardiff CF24 3JD


 


JUDGE REID QC: This is a preliminary ex parte hearing on an appeal by the applicant below, Mr David Roach, against a decision of an Employment Tribunal held at Cardiff on 15th February 2000, by which the unanimous decision of the tribunal was that unfair constructive dismissal was not established.

1. The circumstances in which it came about that Mr Roach left his employment were that he had been employed by Sureways Parking, which was concerned with parking in the City of Cardiff. Sureways lost the contract and the respondent, APCOA Parking (UK) Ltd won the contract.
2. There were three employees at the two car parks at North Road, Cardiff, who had been employed by Sureways. One of them was Mr Roach. Shortly before the handover APCOA's operations manager, Mr Terry Simpson, attended on the site and gave each of the three employees a form to fill in anticipation of the pending transfer of their employment under TUPE provisions to APCOA following the handover by Sureways to APCOA.
3. Each of the employees was given a form headed "application for employment", but according to the finding of the tribunal, it was explained to them that the purposes for filling in the form was merely to provide Head Office with banking details and information as to uniform requirements. There were a variety of other boxes on the form and each was asked to fill in and sign the form and in Mr Roach's case certainly he did. He did not on signing delete any of the boxes, some of which contained wholly inappropriate wording.
4. The evidence of each of the three employees was they understood the purpose of the form was to provide banking and uniform information. It is said by the tribunal that they understood that the Transfer of Undertaking (Protection of Employment) Regulations 1981 applied.
5. On 28th October the Regional Manager of APCOA, Mr Tony Ferris, attended the site and met the three employees to ascertain their existing working terms and conditions and discovered that two of the three employees, including Mr Roach, worked a 60 hour weeks, thus exceeding the 48 hours maximum imposed by the Working Time Regulations 1999. He told them their jobs were secure but that, due to conditions of the tender necessitating changes in working hours, some of the conditions would have to change. He hoped to bring them in line with the respondents' other staff throughout the United Kingdom who operated a 40-hour week. What he suggested was a reduction in their working hours but an increase in their hourly rate in line with staff on other sites, so that there would be no loss of income. All three were asked to sign forms and did sign forms agreeing to work more than 48 hours but that was expressed to be by way of a safeguard in case there were opportunities when more than 48 hours work was required.
6. On 1st November Mr Roach expressed dissatisfaction with new regime and the reduced hours offered, but accepted a pay increase of £4.60 per hour, (the tribunal say):

"… so that there was no loss of income. He agreed to continue working for the new employers on those terms."

7. On 3rd November there was a set to, I think it may be fairly described, and Mr Simpson, the operations manager, telephoned Mr Ferris, the Regional Manager, informing him that the three employees wanted to leave. Mr Ferris went to the site and spoke to them in Mr Simpson's presence. Mr Lewis, on behalf of the three employees, indicated that they were not prepared to fill in the forms that they given on 27th October. Though it appears to be a finding that Mr Roach had signed his. The debate then continued. According to the evidence, Mr Roach told Mr Ferris that he had had enough of the parking game and wished to move on.
8. On 5th November Mr Ferris wrote to Mr Roach asking him to reconsider, but Mr Roach did not return to work and complains of constructive dismissal.
9. The point which immediately springs to the eye is that it is said that Mr Roach on the one hand was receiving an increase from £4 to £4.60 an hour and a decrease in the working hours from 60 to 40, but equally it is said that he was not thereby suffering any diminution in his earnings. On the face of it that appears to be mathematically incorrect.
10. The findings of the tribunal to the effect that there was no fundamental breach of terms was:

"9. … He does not complaint as to the change in hours and pay and had he done so we would have found there was no breach of any fundamental term in this respect in that he agreed to work fewer hours for more money so that his income remained the same, and we can see no breach of contract here. …"

This looks, on the face of it, to be fundamentally flawed, because he was complaining that his job description was altered and he was £4,000 a year worse off (see the Originating Application) and mathematically it is impossible to see that his income was remaining the same on the reduction in hours and increase in income proposed. That, of itself, is enough for us to take the view that this is a matter which should go to a full hearing.

11. We have considered whether the hearing can be limited by refusing leave in respect of any of the four grounds which are set out in the grounds of appeal and the skeleton argument, but it does not seem to us that this is a case where there should be any such limitation. Although we do have some doubts as to the force of the first ground alleged because although the tribunal's statement of the law as to constructive dismissal in paragraph 7 of the extended reasons may not be in the terms one would normally expect, the actual finding of fact is that the various matters did not constitute a breach of any fundamental term. Essentially, we take the view that the attack that can perhaps be properly mounted, is more on the findings of fact which are inconsistent on their face, and which do not appear to tie in with what appears to have been the evidence.
12. In those circumstances we will direct that the matter goes to full hearing. We will not make any direction limiting the arguments that can be advanced at that hearing. The appropriate time length is, in our view, ½ a day and we think the appropriate category is Category C.
13. We direct that the documents presented to Mr Roach on 27th October 1999 and apparently signed by him should be before the Employment Appeal Tribunal. We also direct that the Chairman's Notes of Evidence be provided.