Appeal No. EAT/328/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26 April 1994

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MR T S BATHO

	MR D O GLADWIN CBE JP

MR H WAILES	APPELLANT

H TAYLOR & SONS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO ATTENDANCE OR
REPRESENTATION BY
OR ON BEHALF OF THE APPLICANT

For the Respondents	MR MARTYN WEST
(PERSONNEL
CONSULTANT)
Peninsula Business Services
Stamford House
361/365 Chapel Street
Manchester M3 5JY

	JUDGE PEPPITT QC:	This is an appeal from a decision of the Newcastle on Tyne Industrial Tribunal made on the 31 January 1992.  The unanimous decision of the Tribunal was that the Applicant before it, the Appellant before us, was not unfairly dismissed.  The Appellant does not appear before us this morning.  The reasons for his absence are set out in a letter from his Agents, Weardale Employment Advice Services, dated the 13 April 1994.  We can understand those reasons.  The arguments which he wishes to advance before us are set out in a short skeleton annexed to a letter from Weardale Employment Advice Services dated the 13 April.  The Respondents are represented before us this morning by Mr West.

	The point is a very short one.  The Appellant was employed by the Respondents as an assistant in their butchers shop in Darlington.  He had been so employed since September 1979.  On the 13 May 1991 having been off sick for a period, the Appellant went to the Respondents' office and there saw Mrs Garthwaite, one of the Respondents' proprietors, complaining that his sick pay for the previous week had been short by some £46.50.  In support of his argument that £46.50 was due, the Appellant on the following day, 14 May, returned to Mrs Garthwaite, producing on this occasion a copy of his contract of employment.  Mrs Garthwaite took it from him and proceeded to alter it in a number of respects, so as to justify the deduction which she had made.  

	Apparently there were negotiations then on foot with the Joint Industrial Council for the Retail Meat Trade, which might with the agreement of the relevant employees, have altered the contractual provisions in relation to sick pay; but it is perfectly plain as the Tribunal found, Mrs Garthwaite had no authority, either to make that deduction unilaterally, or unilaterally to purport to alter the terms of the Appellant's contract of employment.  She did so on the 14 May 1991 in circumstances which seem to us to indicate that she, at any rate, was not enthusiastic about the Appellant's continued employment by the Respondents.  Indeed the Tribunal found that she said to the Appellant:

"You're a trouble maker and bloody nuisance and I want nothing more to do with it.  Are you on the counter or on your lunch?".

	The Appellant replied:

"On my lunch".

	Mrs Garthwaite then said:

"Bugger off and get your lunch and don't come to the office again".

	In the course of the discussion the Tribunal found that Mrs Garthwaite also said:

"If you never come back it will be too soon for me".

	The Appellant resigned from his employment shortly afterwards.  The question before he Industrial Tribunal was whether he was constructively dismissed.

	Mr West, on behalf of the Respondents, does not seek to deny that the combined effect of the events of the 13 and 14 May 1991 constituted a breach by the Respondents of the Appellant's contract of employment.  But he says that the Tribunal's finding that this breach was not a repudiatory breach in the sense that it did not go to the root of the contract, was a finding for which there was some evidence and with which accordingly we should not interfere.  He points that out rightly that the quality of a breach, that is whether it does or does not constitute a fundamental or repudiatory breach, is a matter of fact for the Tribunal.  In those circumstances we can interfere with the finding only if there was no evidence to support it, or if we regard it as perverse in the sense that no reasonable Tribunal could have made the finding complained of.

	We have considered this decision with some care.  There was in our judgement some evidence upon which the Tribunal were entitled to find as it did, and we are not prepared in the circumstances to say that the finding was perverse.  That should not be read as meaning that we ourselves would have reached the same conclusion, or necessarily that we think that the Tribunal was right.  We simply have come to the conclusion that it was not a finding with which we could properly interfere and accordingly, with some regret, we have come to the conclusion this appeal must be dismissed.