United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS SUE SLEEMAN (Of Counsel) Instructed by: Messrs Livingstons Solicitors 9 Benson Street Ulverston Cumbria LA12 7AU


 


JUDGE PETER CLARK

1. The Appellant, Mrs Tring, commenced her employment as an appeals manager in the Benefits Department of Barrow Borough Council on 13 November 1989. She was then employed by the Council on a full-time basis. On 1 October 1998 her employment was transferred to CSL Group Ltd, later the Respondent Liberata UK Ltd. The provisions of the Transfer of Undertaking (Protection of Employment) Regulations 1981 applied to that change.
2. Following a period of maternity leave she returned to work on 10 May 1999 on a part-time basis. She worked 16 hours per week on Mondays and Tuesdays only. Apart from the agreed variation to her hours of work the contractual arrangement for holidays was that she was entitled to 10 days annual holiday, as opposed to the 25 days holiday when she was employed full-time. In addition her entitlement to take Bank holidays was limited to those Bank holidays which happened to fall on one of her working days. We pause to observe that generally "odd" Bank holidays tend to fall on a Monday, which benefited the Appellant in her new working pattern.
3. The Respondent wished to change the Bank Holiday arrangement applying to the Appellant. Instead of her taking Bank holidays falling on a working day, for which she was to be paid, she was to be limited to 3 Bank Holidays per annum, thus pro-rating her entitlement in accordance with her part-time hours. It seems that the Respondent generated a document dated 4 March 2002, described by the Carlisle Employment Tribunal, against whose decision promulgated with Extended Reasons on 16 July 2003 this appeal is brought, as a contract of employment, which contained a provision, under the heading "holiday entitlement" which said:

'10 days per annum, pro-rata for each month of service plus 3 days public holidays. To be taken as agreed with your Manager.'

4. The Appellant never signed that draft contract. An issue of fact arose before the Employment Tribunal as to whether the Appellant received that document at about the time of issue in March. She said that she did not, and that she had seen it for the first time when her non-signing of the contract document was raised with her by her manager, Mrs Ann Coulthurst at a meeting held on 26 November 2002. The Employment Tribunal rejected her evidence. They accepted that after the Appellant left the employment, having resigned with effect from 6 January 2003 in circumstances which she claimed amounted to constructive dismissal, a copy of the 4 March document was found in her desk drawer. The Employment Tribunal concluded that the Appellant had been given the document in March; was aware of its contents and continued to work without challenging the new term until the matter was raised by Mrs Coulthurst in November. She then refused to accept the alteration to her previous terms of employment and eventually resigned.
5. It is also material to note that during the period from March 2002 the Respondent continued to pay the Appellant on the old basis, that is paying holiday pay in respect of Bank Holidays when the Appellant would otherwise have worked. The Employment Tribunal found that such payment was made under a mistake.
6. After the Appellant consulted solicitors those solicitors wrote on her behalf to the Respondent on 3 December 2002 stating that if she did not receive full pay for all Bank Holidays (we interpose, which she would otherwise have worked) she would regard herself as being constructively dismissed.
7. On 2 January 2003 the Respondent replied substantively to that letter, through their Human Resources Manager Keith O'Connor. That letter concludes:

"We will, of course, discuss this with Mrs Tring and give her three months notice that her contract will change to bring her into line with other part-time employees within the Company. An alternative would be for her to return to full-time employment."

8. Upon receipt of that letter the Appellant, through her solicitor, wrote on 3 January terminating the employment.
9. Having found as fact that the Appellant received the draft contract on 4 March the Employment Tribunal expressed their conclusion on the issue of constructive dismissal at paragraph 6 of their Extended Reasons thus:

"6 The alleged breach of contract in this case was the respondent's declared intention to reduce the number of bank holidays for which the applicant would be paid. The Tribunal found as a fact that the applicant's holiday entitlement was set out in the contract which was issued to her on 4 March 2002. The applicant was aware of those terms and continued to work for the respondent and to accept salary from the respondent for a further 8 months. She did not challenge the change in her holiday entitlement until 26 November 2002. Having found that those were the terms of the applicant's contract, then there could be no breach of that contract when the respondent sought to enforce those terms. The fact that the respondents had overpaid the applicant by virtue of a mistake, was not a further variation of the applicant's contract of employment, nor had it become an implied term of the applicant's contract."

Having found no breach of contract it followed that there was no constructive dismissal.

10. In this appeal on behalf of Mrs Tring Miss Sleeman advances 2 grounds.
11. First, she submits that in concluding that the Appellant had accepted the contractual variation proposed in March by the time of the meeting of Mrs Coulthurst in November 2002 the Employment Tribunal failed to consider the principles to be found in the cases of Jones v Associated Tunnelling Co Ltd [1981] IRLR 477 and Aparau v Iceland Frozen Foods Plc No 1 [1996] IRLR 119. In the latter case see in particular the judgment of Judge Hicks QC, at paragraphs 15-16.
12. We think that this point is arguable and should proceed to a full hearing. Whether on the Appellant's case the indication given by the employer in the letter of 2 January 2003 amounted to an anticipatory breach of contract, assuming there had been no consensual variation prior to that date, and further whether even if it did amount to a breach of contract that could properly be characterised as a fundamental or repudiatary breach of contract were not matters which were ruled on by the Employment Tribunal. We should also add this, in the skeleton argument prepared by the Appellant's solicitor but not appearing in the grounds of appeal it is said that below the Respondent's Counsel expressly excluded the issue of affirmation of contract in her closing address to the Employment Tribunal. Because the point was not raised in the Notice of Appeal, the Respondent has not so far had an opportunity to deal with it in written representations prepared for the purpose of this Ex Parte Preliminary Hearing.
13. In these circumstances we shall direct that the Appellant shall, if so advised lodge draft amended grounds of appeal marked for my attention dealing with the suggestion that the affirmation point was expressly disavoured by Counsel for the Respondent at the close of the Employment Tribunal proceedings, together with an Affidavit from her solicitor dealing with that alleged concession. That is to be done within 14 days of the sealed date of the Order which we are about to make. I will then give paper directions for permission to amend if appropriate and for comments by the Chairman together with, if necessary, an Affidavit from the Respondent.
14. As to the second ground of appeal, a challenge to the Employment Tribunal's finding of fact that the Appellant received the draft contract in March 2002, thereby rejecting her evidence on the point, we are not persuaded that any arguable point of law based on perversity arises. There was evidence to support the Employment Tribunal's finding. In these circumstances, whilst of course bearing in mind the Court of Appeal's observations in Vincent v Gallagher [2003] ICR 1244, we consider it right to dismiss this ground at this Preliminary Hearing, a principal purpose of which is to limit Full Hearings before the Appeal Tribunal to arguable, as opposed to unarguable grounds of appeal. Directions: ½ day. Category C. Usual directions to apply.