Appeal No. EAT/1045/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 December 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR L D COWAN
MISS A MADDOCKS OBE

MR A H SOLLEY	APPELLANT

CHATFIELDS - MARTIN WALTERS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	

	APPEARANCES

For the Appellant	APPELLANT IN PERSON	

	
	MR JUSTICE LINDSAY:   We have before us by way of a Preliminary Hearing the appeal of Mr A H Solley against Chatfields-Martin Walters Ltd.  There had been a hearing spread over two days in front of the Industrial Tribunal at Nottingham under the Chairmanship of Mr P G Pollett on 1 and 2 May 1997.  The Extended Reasons of the Tribunal were given on 7 July 1997.  The unanimous decision of the Tribunal was that Mr Solley’s application was dismissed.

	The application in the IT1 had been that Mr Solley had been unfairly dismissed on 26 November 1996.  The Appellant said that he had been constructively dismissed and that it was unfair.  The employer, however, had said that he had resigned.

	The industry we are concerned about is the motor trade and Mr Solley was engaged as the Respondent’s dealership director at Mansfield.  He had had executive responsibility at Mansfield for some 10½ years, although the particular nature of the company carrying on the business there changed from time to time over that period.  Either the Respondent company or the group of which the Respondent company was a member also had dealerships in other parts of the country and we are concerned about the Sheffield dealership.

	At the end of October 1996 the Manager at Sheffield resigned.  He had not, it seems, been a success.  The Respondent considered that Mr Solley was a good man to replace him.  The Industrial Tribunal said in paragraph 4 of their Extended Reasons:
“..... The respondents saw it as an opportunity to offer the applicant the position in Sheffield.  They regarded him as a good man and well able to turn round the previous unacceptable performance of the director at Sheffield who, from February 1996, had been under surveillance and in respect of whom a written warning had been issued (R7).”

The Respondents offered the Sheffield job to Mr Solley.  The Industrial Tribunal found that: 
“4. ..... The respondents believed that the applicant’s management style would suit Sheffield and told him so.”

and they said the Applicant was offered the job.

	Mr Solley’s response to that was held by the Industrial Tribunal to be as follows:
“5.	The applicant was concerned about two things.  Firstly, that he would not be financially worse off if he accepted Sheffield and secondly that matters would be dealt with quickly once he had accepted.  The applicant agrees that Mr Hartrick, the Managing Director of the respondents, had said to the applicant that the respondents would not expect to pay him less than he was getting at Mansfield.  The applicant made it clear that he wanted an acceptable package and it is common ground that he had not received this in writing before he decided to reject the Sheffield job.  The applicant was concerned about the two dealerships in Sheffield.  He was concerned about the unit sales objectives, the high record of customer complaints and the high staff turnover.”  [Our underlining.]

	On 11 November there were communications to and from the parties to which we shall need to return, but, moving on in the chronology, on 15 November Mr Solley met a Mr Howdle in a pub and Mr Howdle at any rate understood that Mr Solley had accepted the job in Sheffield.  In paragraph 10 the Industrial Tribunal held as follows:
“Mr Howdle, who is the dealership director at Mansfield, said that he was offered the Mansfield job on 15 November, which he accepted.  Mr Howdle met the applicant in a public house on 15 November and had no doubt at that time that the applicant had accepted Sheffield.”

	By 22 November the Respondent had appointed Mr Howdle to the Mansfield job which previously had been Mr Solley’s.  Mr Solley had real doubts about accepting the Sheffield job.  The Industrial Tribunal says that he said that as a result of all this he did not accept the alternative employment at Sheffield.  The Respondent says that he did accept on 11 November 1996, subject to a satisfactory pay package and the appointment being carried out quickly.

	As to what had happened on 11 November the Industrial Tribunal said this:
“7.	..... There had been previous discussions between Mr Hartrick and the applicant earlier in November and although it was obvious that the applicant was disappointed at having to move from Mansfield, nevertheless the applicant was aware of the problems at Sheffield according to the evidence of Mr Hartrick, which the Tribunal accept.  The applicant said that he wanted time to think about it and on Monday 11 November the applicant telephoned Mr Hartrick saying that he would accept the job subject to the two conditions that he received a suitable pay package and that matters moved quickly.  Mr Hartrick confirmed that the pay package would be no worse than at Mansfield, namely that the applicant would not suffer financially.  As a result of this, the respondents put into operation the appointments of the applicant at Sheffield and Mr Howdle at Mansfield.  The appointments were notified internally within the Company.  There was a handover at Mansfield and at Sheffield.”

	So that as far as one can judge from those holdings, there was a position before the 26 November when Mr Solley was on station, so to speak, in Sheffield, with Mr Howdle in Mansfield.

	On 26 November Mr Solley met Mr Hartrick.  That is dealt with in paragraph 8 of the Industrial Tribunal’s holdings:
“On 26 November, the applicant told Mr Hartrick that he was going to resign.  They met later that day and it became obvious that the applicant was concerned about the dealerships at Mansfield.  It became obvious to Mr Hartrick that the applicant felt that for personal reasons, Sheffield was too stressful and that he decided that he did not want the job and that he would not go back to it at all, even to hand over.  The applicant handed his letter (A41 & 42) to Mr Hartrick on 26 November.  On 27 November, the respondents accepted the resignation and wrote document 47.”

	The letter of resignation which Mr Solley has produced is worth looking at; it is dated 26 November.  It is addressed to Mr Hartrick and says:
“Dear Keith,
In our conversation of 11th November, 1996, I indicated that, subject to the provision of an acceptable pay package, I would be amenable to taking up the position of Dealership Director at the C.D.Bramall Mazda and Toyota dealerships in Sheffield.
I have not received a financial proposal and having now had the opportunity to appraise both of the Sheffield locations, I regret that I do not wish to take up an appointment in Sheffield.
Having considered the circumstances leading up to my departure from Mansfield, and taken independent advice, I have formed the conclusion that I was wrongfully dismissed from my previous position, and I will await your proposals to remedy the situation.

In order to avoid any embarrassment in Sheffield, I will not return to the dealerships.
Yours sincerely,
Tony Solley.”

The Respondents, as I have just read from the holdings of the Industrial Tribunal, accepted what they took to be a resignation.  

	The Industrial Tribunal in their paragraph 20 said:
“There is no evidence before us of any breach of the contract of employment by the respondents, including the implied term of trust and confidence.”  

They had held at paragraph 14 that:
“Where the evidence between the parties conflicts, as it does in certain important respects, the Tribunal prefer the evidence given by the respondents.”

In paragraph 19 they said:
“There is no evidence at all that the respondents wished to get rid of the applicant.  The evidence is to the contrary.  Mr Hartrick, the respondents’ Managing Director, spent a long time trying to persuade the applicant to stay on.  They wanted him to go to Sheffield and to exercise his “trouble-shooting” expertise there.  The Tribunal believe on the evidence that the applicant had agreed to go to Sheffield and subsequently changed his mind.”

It is an important conclusion on the part of the Industrial Tribunal.

	The Tribunal came to the same conclusion in paragraph 12 of their reasons where they say:
“..... In reality, the applicant had been offered and accepted Sheffield and it was from that dealership that he was resigning.”

	At paragraph 21 they conclude:
“On the evidence as a whole, and bearing in mind that where the evidence does conflict, we do prefer the evidence of the respondents, the applicant has failed to satisfy us that there was a breach, let alone a fundamental breach, of his contract of employment, or that the respondents were wishing to terminate that contract.  He has not satisfied us that he was constructively dismissed.”

	I should mention that from the outset the Industrial Tribunal had referred themselves to the decision of the Court of Appeal in Western Excavating v Sharpe the leading case on constructive dismissal.  There is no suggestion that they misdirected themselves as to the ingredients of a constructive dismissal.  It was against that background that the unanimous decision of the Tribunal was that Mr Solley’s application should be dismissed.

	Mr Solley has appeared in person before us today and he has produced a Skeleton Argument which usefully summarises a number of other papers that he has put in front of us.  The first heading of that Skeleton reads as follows:
“1.	The central grounds for appeal is that the Tribunal which heard the case on 1st May, 1997 decided that the applicant resigned from a company which was not the respondent on a date which was one week after the last day that the applicant had been employed by the respondents.”

There is, in fact, no such finding by the Industrial Tribunal.  

	Mr Solley has raised with us a point that seems only lightly to have been touched on in front of the Industrial Tribunal itself.  He has shown us a passage from a long written statement of evidence that he had handed to them and perhaps read to the Industrial Tribunal, where, in brackets, it says: “4. .....(The dealerships at Sheffield were not part of Chatfields - Martin Walter Ltd).”  That, of course, does not of itself prove that employment had changed in the sense that the identity of the employer had changed.  But there is certainly no finding that accords with the description in paragraph 1 of the Skeleton Argument.

	Paragraphs 4 and 5 of the Skeleton Argument allege that Mr Solley’s employment by the Respondent ended on 19 November and that it was thereafter not the Respondent that had employed him in Sheffield.  This again is a related point to that made in the first paragraph of the Skeleton Argument and again seems a point not adequately brought to the attention of the Industrial Tribunal.  Even if it was the case, it would leave Mr Solley no better off because if the Industrial Tribunal’s conclusion that he had accepted the Sheffield job is correct in point of law, then it would not help him to say that his employer thereafter was someone other than Chatfields-Martin Walters Ltd.  If, ultimately, on 26 November his dealings were with that different employer (if it was a different employer) then Mr Solley would have had to have had a different respondent to the whole of the proceedings.  We do not see that this point, even if it had been adequately ventilated below, would assist Mr Solley against the present Respondents.

	Paragraph 8 of Mr Solley’s Skeleton Argument complains that he was dismissed on 19 November and there is a P45 that, he says, suggests that is the case.  He says that that was when he handed over the dealership in Mansfield to Mr Howdle.  It has to be remembered that his IT1 had specifically claimed that his employment, in a case which was directed to the Respondent, Chatfields-Martin Walters Ltd, had ended on 26 November.  On that footing, it was his own case that he had continued in employment until 26 November.  Mr Solley says that he had completed the form IT1 in blank but presumably whoever completed it for him, an adviser, had completed it in the light of whatever that adviser had been told at the time.  It would not be just at this stage to go behind the plain clear statement in the IT1 that the job ended on 26 November.  We have a good deal of sympathy for Mr Solley.  It could be that had matters been raised differently and argued differently on different evidence, some different conclusion could have been arrived at, but this is not an occasion for some sort of legal “action replay”.  We can only deal with errors of law in the decision of the Industrial Tribunal.  We have to remember that the Industrial Tribunal did prefer the evidence given by the Respondents and they were meeting a case which was that there was employment that stopped on 26 November. 

	Notwithstanding our sympathy for Mr Solley’s position, and directing ourselves to having in mind the Western Excavating test, we see no error of law in the conclusion that there was no fundamental breach of Mr Solley’s contract of employment.  Accordingly we have to dismiss this appeal.