United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	Messrs Dibb Lupton Alsop Solicitors Victoria Square House Victoria Square Birmingham B2 4DL


 


JUDGE ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at London South over two days, 19 & 20 September 2000, when the Employment Tribunal found that the Appellant was not unfairly dismissed. The matter comes before us by way of preliminary hearing to determine if there is a point of law that can be properly argued in full before the Employment Appeal Tribunal.
2. The Appellant has not appeared today to support her appeal at this preliminary stage but we have had the advantage of a substantial Notice of Appeal and we have proceeded to consider the merits of the argument upon the basis of the material before us.
3. The essence of the appeal is that the Employment Tribunal misunderstood or misapplied the facts to the principles of law which they set as the base for their decision, took into account irrelevant considerations, misdirected itself in law as to the breach of duty of co-operation and suggests that it is alleged that the Employment Tribunal's decision was perverse.
4. In the decision of the Tribunal, followed after two days of hearing, in which no doubt a very substantial body of evidence was heard and sifted by the Employment Tribunal, they recorded in their findings of fact the history of the Appellant's employment, beginning as a Management Accountant on a temporary basis in 1988, becoming a Project Manager and the Operations Project Manager responsible primarily for opening new branches, going on to be the Area Manager and covering the South of England and Ireland.
5. It then appears that the Appellant, who was in a position of considerable responsibility as a Regional Manager, was part of a group that was subject to a sale to a new owner in March 1998. Following that re-organisation an appointment was confirmed as Regional Manager South and Europe in the operations department. There then followed some changes in the senior management structure which were recorded by the Tribunal.
6. Following a period of maternity leave the Appellant returned to work in September 1999 but she then found that the role of Regional Manager had changed in that it had been reduced because of the lack of direct access to Dr Worrall, her senior, and a reduction in her autonomy.
7. The Employment Tribunal set out the seven examples put forward by the Appellant as to what had changed: -

•    Operations meetings not attended by the Operations Director;

•    The requirement as to how often the Regional Manager must visit each store;

•    A requirement to use standard agendas at such visits;

•    A requirement as to the need for branch managers to give information about stock figures;

•    A new requirement to keep low stocks;

•    The way in which promotions were to be implemented in accordance with a prescription from the Marketing Department;

•    A lack of response to her own concerns as to the failure of an earlier promotion and;

•    A new formula to be applied which would dictate how many Managers or Assistant Managers there would be in any one store.

And that was to do with the quality of management that was something which had to be taken out especially with Dr Worrall.

8. It then appears that the position of Regional Manager was re-graded, although the existing Regional Managers would effectively red-circled, that they were nonetheless concerned about the effect of this change on their own positions. It appears that unfortunately written confirmation of the change was not sent to the Appellant and the Tribunal found that this was an oversight.
9. The Tribunal found that the Appellant was concerned about the re-grading of the Regional Manager's post and they found this:

18. "She considered that as a result of the cumulative changes, overall, her authority as Regional Manager had been eroded and that she had been constructively dismissed….

19. The Tribunal was satisfied that the (Appellant's) position was neither reduced nor undermined by the merger. We consider that after the merger the Respondent had to respond to doubling in size of the company within a short time by conducting its business with more efficiency and rigour. We find that some changes to working practice took effect because the Respondent was operated in a more effective and efficient manner."

10. The Employment Tribunal then considered the relevant law and the submissions put before it and they then set out their conclusions in paragraph 23 of the decision. This effectively was a case in which the Appellant did not point to one particular act which itself fundamentally broke her contract of employment but a cumulation of issues which was finalised by what may be described as 'the last straw' so as eventually entitle her to regard her contract as having been terminated by the breaches of the Respondent.
11. In paragraph 23 the Tribunal found that the Appellant made no real attempt to convey her dissatisfaction and they found that there was no evidence that her concerns were so serious that she could not have given the Respondents an opportunity to deal with them. They point out that she did not take up her grievance under the procedure, that she did not go to discuss the matter with Dr Worrall, with whom she had a good relationship.
12. The role, they found, of the Appellant before and after merger, was essentially the same and they amplified their reasons for that. They acknowledged that there were issues regarding the marketing but whilst not ideal they found it was not a fundamental breach of contract and they found that there was no evidence that the Appellant lost any of her autonomy. They also found that any re-grading that took place did not constitute a breach of the turn of trust and confidence
13. It seems to us on the recital of facts set out with some care in the decision of the Tribunal, based upon the evidence they received, much of the decision-making process of the Tribunal in this case required an evaluation of the issues that were raised, not only as to what they were but as to how serious and fundamental they were, in relation to the working position of the Appellant.
14. They came to a conclusion that the issues themselves were not as serious as the Appellant considered, or sufficient to constitute a fundamental breach of contract. Essentially, therefore, the Employment Tribunal were engaged upon an evaluation of the quality of the evidence before them and the seriousness of the matters that were raised but those are issues peculiarly within the discretion of a Tribunal to decide, who has before it all the documents, can hear and assess the witnesses and form their judgements upon it.
15. In the Notice of Appeal, essentially, the Appellant complains of the failure of the Employment Tribunal to accept her evidence and the impact upon her of the matters to which she has referred.
16. She sets out in the first section the facts that she says were not taken into account by the Respondents; a failure of consultation; a breach of assurance as to re-grading; a failure to consult as to re-grading; the re-grading of the role of Regional Manager; the reasons given for it; the question as to whether the grievance procedure applied at all; the failure of the Respondents to address the issues raised by the Appellant as to her financial package and a number of specific incidents and the re-grading to make room for a Divisional Manager whom the Appellant would say, in effect, took over some of her former duties.
17. But all those matters relate to the judgement, to a large extent, of the re-grading process and the Employment Tribunal, it seems to us, were entitled to form a judgement and prefer the emphasis of the Respondent as to the degree of change that that re-grading brought about and to reject the Appellant's assessment of its seriousness.
18. The Appellant complained that the Tribunal took into account irrelevant consideration the failure to take advantage of opportunities to discuss difficulties, whether the re-grading was in the best interest of the Respondents. But both those are matters, it seems to us, which the Employment Tribunal were entitled to take into account, after all, if something very serious has taken place in an employment situation, which is a breach of contract, that is a very different thing, we would have thought, from a change along the way about which if it were something that was capable of repair, without being a fundamental breach, the Tribunal would be reasonable to expect the Appellant to try to take up at the time.
19. The Appellant then introduces headings, including an assertion of perversity, but essentially we find that the Employment Tribunal were entitled to come to the decision they did on the evidence before them and it cannot be said that they came to a conclusion which no reasonable Tribunal properly directing itself of the law could have come.
20. Finally, the Appellant raises the proposition that the Employment Tribunal failed to consider the Appellant's claim that the Respondent had breached the duty of co-operation it had owed to the Appellant. The Appellant was a very senior and, so it appears, highly-regarded employee. She felt the number of changes had undermined her position.
21. The Employment Tribunal had to consider whether such changes as they found had taken place and the difficulties in communication that the Appellant said she had found were so serious as to constitute a fundamental breach of contract. We can find no error of law in the way they applied that legal test to the facts they found. They were entitled to reject the position of the Appellant; that was a matter of fact for them.
22. Whilst we recognise that the Appellant does not agree with the decision of the Tribunal we can find no arguable error of law in that decision and accordingly this appeal must be dismissed at this preliminary stage.