United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR COMMISSIONER HOWELL QC:

1. In this appeal which is before us today for preliminary hearing a firm called Security Surveyors Group Plc seeks to have set aside as erroneous in law the decision of the Employment Tribunal sitting at Middlesbrough on 19 August 1999, set out in what is described as a Decision and Summary Reasons sent to the parties on 6 September 1999 which are at pages 3 to 7 inclusive of the appeal file before us.
2. The proceedings before the Tribunal were on a complaint of unfair dismissal by a Mrs Helen Jane Hustwick who had been employed for some years with the Appellants as a Central Station Operator at their premises in Darlington . A Station Operator, we understand, involves shift work, being on duty dealing with the central monitoring of security staff and maintaining radio contact with people on behalf of the Appellants.
3. According to the findings of the Tribunal on 23 February 1999 the Applicant was, without prior consultation, informed by her employers that she would have to transfer from the day shift she was currently working to night shifts on Friday and Saturday between 8 pm and 8 am. This was a substantial alteration in the existing terms of her employment as, although she had earlier worked on night shifts, she had been working day shifts regularly for some time by the date of this notification, and now had a young child so that a switch to working weekend nightshifts was, for practical purposes, impossible for her.
4. According to the findings of the Tribunal this notification amounted to a fundamental breach of the existing terms of her employment. She found it impossible to resolve matters with her employers, and resigned from her employment on 8 April 1999 which the Tribunal found to amount to an effective constructive dismissal of her on that date, and they held that dismissal to have been unfair and made her a basic and compensatory award in consequence.
5. There was, in the Originating Application, also a claim for sex discrimination which was withdrawn before the Tribunal.
6. The employers sought to appeal against that decision on the grounds set out in their Notice of Appeal that they now had what was described as "fresh evidence not before the Tribunal". In accordance with the directions of the Registrar of the EAT, they delivered further particulars of the grounds on which they sought to appeal in a letter dated 15 November 1999 at page 2 of the file before us alleging that:

1. the Applicant had been offered her job back during three conversations with a member of ACAS before the Tribunal hearing but the Tribunal had made no mention of this;

2. that contrary to the evidence given by her she had been invited to consultation and

3. that the employers had asked for a review of the Tribunal's decision but this had been dismissed on the basis that it had no chance of success. Accordingly it was submitted that the Tribunal had acted "outside of natural justice" by rejecting the application for a review.

7. The preliminary hearing of this appeal has already been postponed on a number of occasions and on Monday of this week, 5 February 2001, I considered and rejected an application by the Appellants for this hearing to be postponed yet, again, for reasons which I then gave.
8. No one appears today before us on behalf of the Appellants and the EAT staff have been in contact with the Appellants and have been informed that it is not intended for there to be any appearance on their behalf before us today. In those circumstances we proceed to consider the preliminary hearing of this appeal.
9. The first point is that the appeal, as it stands before us, is procedurally defective in that the appeal is accompanied only by the Summary Reasons and Decision Notice issued by the Tribunal and not by any statement of Extended Reasons as required by Regulation 3 of the Employment Appeal Tribunal Rules. However, as the Summary Reasons contain a clear statement of the grounds for the Tribunal's decision we exercise our discretion to waive that defect and deal with the preliminary hearing of the appeal on its merits.
10. We have unanimously concluded however, that the stated grounds of appeal, to which we have already referred, disclose no arguable point of law to warrant this appeal going forward for further consideration before the Employment Appeal Tribunal. It is plain to us that the Appellant is seeking to take issue with points of fact or evidence and/or to rely on further evidence that was not before the Employment Tribunal at all. We are unable to see that it is at all arguable that it was an error of law for this Tribunal to have determined the case and to have made the findings of fact it did, on the basis of the evidence actually placed before it at the hearing. Those findings appear to us to disclose no error of approach by the Tribunal at all.
11. In particular, the Tribunal has found specifically that the variation in the Applicant's hours of work as proposed represented a fundamental breach of her contract on the part of the employers. As for the suggestions about consultation and offer of re-engagement they also recorded specifically in paragraph 4 of their Summary Reasons that during the course of the hearing it had appeared that there was a possibility that the employers would be prepared to re-engage the Applicant but that after an adjournment this was not the case. Those being the facts at the date of the hearing, and the Tribunal being satisfied that the Applicant did not wish either to be reinstated or re-engaged, they proceeded to consider the question of remedies on that basis: quite rightly, in our view.
12. We have therefore been unable to see that there is any ground for allowing this appeal to proceed before the Employment Appeal Tribunal any further and we accordingly, for the reasons we have given, unanimously now dismiss this appeal.