United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TIMOTHY GRACE (of Counsel) Instructed By: Messrs Forshaws Solicitors 1-5 Palmyra Square Warrington Cheshire WA1 1BZ


 


JUDGE H WILSON:

1. This has been the preliminary hearing of the proposed appeal by the original Respondent against the finding by the Employment Tribunal sitting at Manchester and Liverpool first that the Applicant was constructively dismissed; secondly, that that dismissal was unfair; and thirdly that there had been unlawful deductions of £428 in respect of wages owed. The Tribunal also found that no unlawful deductions in respect of arrears of holiday and bank holidays had been made and dismissed that part of the Applicant's claim.
2. The Respondent company entered a Notice of Appeal and we have had the benefit of a skeleton argument based on that Notice of Appeal, together with oral expansion by Mr Grace.
3. So far as the question of unlawful deductions is concerned that is dealt with fully in paragraph 18 of the Extended Reasons and if there is any question about arithmetic, it is a matter for review and not for us. The Tribunal had all the documents and all the figures and had seen and heard all the witnesses. They made a calculation on that basis, which is a matter of fact, and if there is any question that it is wrong, it is not for us to deal with.
4. Turning to the major complaint of constructive dismissal, what happened was that the Applicant was the manager of a store called "Booze Buster" which was open in the evening and occupied premises near Bolton football ground. Its turnover had increased annually during the Applicant's management and she was responsible for the running of the premises and in particular for staff.
5. The hours allocated to the shop for its efficient running were 156 per week but in October 1999 an acting business development manager told the Applicant that he had to cut those hours from 156 to 111 forthwith. There was no reason given and certainly it was a reduction about which there was no consultation. The Tribunal dealt with this in paragraph 16 of its decision. It found that the Applicant told Mr Searle that she could not operate properly on the reduced hours and that she could not understand why it had to be done straightaway. She made certain efforts to see whether she could organise a rota but that was not possible. There was some increase but not to the minimum that she felt was necessary and, in particular, not in the light of the robbery which had occurred the previous year which meant that staff were not prepared to work singly at night. The whole matter led her to feel that she was entitled to resign and that is what she did, claiming that she had been constructively dismissed because the conduct of the management of the Respondent company undermined the confidence and trust which should underpin any relationship of this nature.
6. The Tribunal said in paragraph 16 that it found the Applicant was constructively dismissed. It was satisfied that Mr Searle telephoned her on 4 October, telling her that her hours were reduced from 156 to 111. There was no negotiation and no consultation and no regard appears to have been paid to the fact that this was an exceedingly successful branch which might attract and had already attracted the attention of thieves. The shop had already been the subject of a robbery and its employees were entitled to refuse to work alone at night time in the shop on health and safety grounds. The proposal to reduce the hours hit at the Applicant's responsibility to manage the shop and also at her mutual trust and confidence in management. She feared that the responsibility for carrying out the extra hours needed to operate the shop efficiency and safely would fall upon her and that, even if the Respondent increased the hours, such an increase would only be temporary. She was confirmed in that by the fact that the 129 subsequently offered has been reduced to 119 since she ceased to work for the Respondent.
7. Those are the facts found by the Tribunal and on those facts it declared itself satisfied that there had been a fundamental breach of contract going to the root of the contract which entitled the Applicant to consider it repudiated. The Tribunal found that she did so treat it and that at no time did the Applicant withdraw her resignation. The Tribunal finally found that there was no reason for dismissal and the dismissal was therefore automatically unfair.
8. Those are findings of fact and there is nothing in the grounds of appeal, as drafted, which lead us to conclude that if this appeal was to proceed it would have any chance of success. It must accordingly be dismissed at this stage.