Appeal No. EAT/457/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 17th November 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS M L BOYLE

	MR J R CROSBY

MR W REID	APPELLANT

DURABELLA LTD (fomerly PHOENIX FLOORS LTD)	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR TOM LINDEN
(Of Counsel)
Messrs Pattinson & Brewer
30 Great James Street
London WC1N 3HA

For the Respondents	No attendance by or on
behalf of the Respondents

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application dated 22nd March 1990, Mr William Reid alleged that he had been constructively dismissed by his employers, Phoenix Floors Limited;  the Company has now changed its name to Durabella but that is immaterial for the purposes of this appeal.  

	He gave as his occupation Driver Asphalt Pot Man, and his complaint in essence, was that the Company had changed his job description, his employment, unilaterally.  Secondly, that they had imposed a requirement for the future that he was to be working away from home for about 95% of his working life.  He lived in Liverpool and he did not like spending time away from home.

	Mr Reid was represented at the Tribunal by the District Officer of the Asphalt Workers' Section of the Transport and General Workers' Union.  The Company was represented by the Branch Manager, Mr Davies.

	The Tribunal decided against the Applicant who now appeals.  

	The Company have written a letter to this Tribunal indicating that they are not intending to appear today and that they would abide by any decision of this Appeal Tribunal.

	The way in which the appeal is presented is that the Tribunal failed to make sufficient findings both in terms of the law and the fact and, therefore, its decision is unsatisfactory and errs in law.  It errs to such an extent, it is submitted, that this matter should be remitted to be heard by a fresh tribunal.  It is trite law that an industrial tribunal is not required to give a detailed judgment as might be expected from a Judge.  The importance is that the tribunal should find facts;  it should indicate whom it believes;  it should direct itself accurately in law and its decision should be sufficiently clear to allow a party to understand it and appreciate why he or she, or it, has won or lost.  Those principles appear quite clearly from the well known case of Meek v. City of Birmingham District Council [1987] IRLR 250.

	It is said by Mr Linden, to whom we are grateful for the careful and succinct way in which he presented his submissions, that the Tribunal failed to find what were the terms of Mr Reid's contract of employment, and in particular as to his job content, his mobility and place of work.  Thereafter, the Tribunal failed to analyse the evidence before them to decide what did, or did not, amount to a fundamental breach and failed to consider possible points as to affirmation and causation.

	The facts are fairly simple as stated by the Tribunal, but somewhat complicated when one comes to read the extremely careful Notes of Evidence taken by the learned Chairman, for which we are most grateful.  

	The Applicant started to work with this Company, as it has now become in name, from 1977.  It was then called "Floorscape Ltd" and he was employed as a Heavy Goods Driver.  The vehicle which he drove was sold some six or more years later and he was asked to stay on as an Asphalt Pot Man Labourer. 

	In September 1988 Phoenix Floor Limited acquired Floorscape Limited; there was continuity of work thereafter. 

	The Floorscape Directors resigned in September 1989, prior to which time Mr Reid had started to do some woodwork, which I think means timber work in connection with the floors.  He carried out timber work variously at times specified by the Industrial Tribunal as January 1989, October 1989 and the 2nd December 1989.

	On the 7th March 1990 a meeting took place between Mr Reid and Mr Davies the Branch Manager.  The discussion clearly centred on two matters, first of all the Applicant was complaining that he was no longer doing much asphalt work, but secondly, that he had been spending rather more time than he wished away from home and by that, it is indicated, that meant nights away from home.  There was no asphalt work in the near future and that in fact, for the future, it was likely that 95% of his time would be spent away from home.  He was living in Liverpool and that was his home base.  The Applicant asked if he could be made redundant and was told that no one was being offered redundancy at that stage. 

	In fact, on that same day, the Managing Director had visited the Branch for a meeting with Mr Davies.  Mr Davies told the Managing Director that the Applicant had given in his notice, as was a fact.  The Tribunal found that there was no discussion on that date about redundancy for asphalt men.  In fact, the other three asphalt men were made redundant some weeks later.

	The Applicant wrote his letter to the Company saying he wished to give one week's notice from the 5th March.  Mr Davies replied on the 7th March confirming receipt of his notice and indicating that there was no alternative employment and therefore the notice would be accepted. 

	Those, broadly speaking, are the facts of the case as found by the Tribunal.

	The Tribunal set out the submissions made to them;  set out the law as expressed in the well known case of Western Excavating (ECC) Ltd v. Sharp [1978] ICR 221, then summarise the whole of their reasoning in one short paragraph at the end of the decision, that reads:
"We as a Tribunal were unable to find that there was anything which justified the applicant terminating his employment in circumstances entitling him to complain that he had been constructively dismissed. There is no doubt that the nature of the job which he had originally been employed to do had changed but this had been a gradual process and as at the time when the employment terminated nothing had happened which would entitle the applicant to maintain that his employers conduct was such that he was entitled to terminate his employment in circumstances amounting to an unfair dismissal.  It is, therefore, necessary to dismiss this application."

Reading that paragraph Mr Linden submits, first of all, that there is no finding about this contract of employment.  It is clear that Mr Reid was originally employed as an Asphalt Pot Man Labourer, he belonged to the appropriate Trade Union, paid its dues, but he was also employed under the terms and conditions of the collective agreement which related to asphalters.  He was not within the terms and conditions of the collective agreement relating to floor layers and workers with the timber.  At the time of his resignation, therefore, it was important to find in what capacity he was working.  What was the contractual position at that time?  That, clearly, has not been found.   But secondly, and perhaps more importantly, what was the term relating to his place of work and his duties to move, in other words the mobility clause if there was one, or an implied one.  Until those matters have been decided it seems to us that it is almost impossible to analyse the case and decide whether there has been a fundamental breach of the terms and conditions of employment.

	In so far as the evidence goes it seems clear that in the 71 weeks from September 1988 to March 1990 Mr Reid had been helping with the laying of timber for some 110 days;  he had been on asphalting jobs, three or four, at best we can discern as something like 20 to 25 days, but for the remainder of the time he had been working as a labourer and during that period of 71 weeks he had been out of town, away from Liverpool, on some 37 days on four different jobs.  If that is the position on the evidence it is necessary to see exactly what his job was, whether it had changed or whether he was still an asphalt pot man working temporarily as a labourer.  Those terms and conditions have not been found by the Industrial Tribunal.  It may be that in that last paragraph they indicate that there had been a change, but if so it is not clear to what the change referred, and it may or may not be the case that there was affirmation by Mr Reid, or possibly affirmation temporarily, but a revival of the breach of the terms under the principles of Lewis & Motorworld Garages Ltd [1986] ICR 157.  However, more importantly in our judgment, there is no finding on the mobility clause and the place of work.  Mr Reid had been complaining about being asked to work away from home.  There had, over those 71 weeks as we have already indicated, been 37 days away from home on four jobs.  But in March 1990 he was told that for the future he was going to be required to be away from home 95% of the time, thus, if it was a clear condition of his terms of employment that he was not required to be away from home for more than a few days in any one year then that is a fundamental change, and if that was unilaterally carried out there would in our judgment be a breach of the terms of his contract, but that depended upon the finding of the terms of the contract.

	We have been taken by Mr Linden through the evidence with great care.  He submits that the evidence is so clear that the only possible view is that there was here a fundamental breach.  If we were to decide today on these matters we would essentially be carrying out the fact finding function of the Industrial Tribunal.  We therefore feel unable to accept his offer to reach a firm conclusion today on the evidence which is disclosed to us.  We have, incidentally, not looked at all the time sheets and other documents which might well be relevant.

	In the circumstances, therefore, we are satisfied that Mr Linden has made out his submission on the appeal, that there was an insufficient finding both as to the terms of the contract and also as to the detail breaches if any by the employers, the Company, upon which Mr Reid could rely as fundamental breaches and indicating that he will therefore resign and leave and therefore be constructively dismissed.

	The other points as to affirmation and causation are not those to which we need refer in the light of the decision we have reached so far.

	It follows, therefore, that this appeal must be allowed and the matter remitted to be heard before a fresh tribunal.