Appeal No.	 EAT/997/99/IT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 November 1999

Before
HIS HONOUR JUDGE WILKIE
MR A E R MANNERS
MRS T A MARSLAND

ROVER GROUP LTD	APPELLANT

MR D J COOK	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Ms I Omambala
(of Counsel)
Rover Group Ltd
International Headquarters
Warwick Technology Park
Warwick
CV34 6RG	
For the Respondent		

		JUDGE WILKIE: 		This is an appeal by Rover Group Ltd who were the Respondents to an application by Mr Cook for a finding of unfair dismissal.  That application was heard by the Bristol Industrial Tribunal on the 30th June of this year and by the decision promulgated on 13th July this year the tribunal unanimously decided that the Applicant had been constructively and unfairly dismissed as a consequence of which an award of £1,410.00 was made to the applicant.   

2.	In this appeal, we have been greatly assisted by the able and clear arguments of Ms Omambala of Counsel but despite her best efforts we are not persuaded that the notice of appeal discloses any reasonably arguable case for this matter to go on to a full hearing of this tribunal.  

3.	The applicant had begun work for the Respondent on 29th November 1993.  In late 1998 he approached Mr Brown the company’s production manager to ask if he could work permanent night shifts by reason of his particular domestic situation and Mr Brown was able to arrange for that on a temporary basis.  The Appellants as under severe financial pressure in the Autumn of 1998 and it invited staff to apply for voluntary redundancy.   The Applicant so applied in November 1998 and by the date he resigned on the 15th March 1999 it appears that he had not received any written communication or acknowledgement of his application.   

4.	In the meantime, arising out of the same financial problems, the Appellant revised its current shift patterns which effectively meant that scarcely anyone would be working nightshifts.  That included the applicant who was unsuccessful in applying for one of the few vacancies working nightshifts.  Therefore on 15th February 1999 he was switched back to day shifts.   The Applicant didn’t dispute the Respondent’s entitlement to do that.  However, his domestic difficulties continued and indeed became more pressing.  Accordingly, on the advice of his production manager Mr Brown, on the 3rd March he wrote formally to the personnel operations manager a letter in which he explained his particular position in detail and asked for a response to his voluntary redundancy application.  He received no communication whatever from Personnel, not even an acknowledgement of receipt of the letter.  As a consequence on the 15th March the Applicant wrote a letter resigning his post with immediate effect complaining that he had no communication or  correspondence, since his letter of early March and that he was therefore obliged to resign.

5.	The Applicant’s case against the Appellant effectively is summarised at the end of paragraph 8 of the Employment Tribunal’s decision in which they record him as saying that by leaving him in a state of uncertainty after he had set out clearly his problems, the Respondent so damaged the relationship of trust and confidence which ought to exist between an employer and employee that he was entitled to resign and claim constructive dismissal.  

6.	The conclusion of the Employment Tribunal was that, whilst they were sympathetic to the pressures that the Appellant was under, it is a nonetheless major listed public limited company and in the tribunal’s view, it should and could have been able to devote sufficient resources to tell people in writing what was going on in matters which were off such primary concern to them. 

7.	On that basis, the Tribunal were unanimously satisfied that the Appellant did fall below its contractual duty to maintain trust and confidence, that the Applicant was entitled to treat this failure to communicate with him as a fundamental breach of that implied contractual term and consequently to resign and claim constructive dismissal.   

8.	The essence of the Appeal is that that conclusion was perverse in that it was one in which no reasonable tribunal properly directing itself as to the law could have come. We do not accept that there is any arguable point in that main point raised in the Appeal given (a) the fact that since November there had been no response to the Application for voluntary redundancy, (b) that it was the misgivings apparently felt by his own production manager about this uncertainty that prompted Mr Cook to write the letter setting out in detail his position and why he needed a response.  It seems to us that for a further 12 days to elapse with not even an acknowledgement was a situation which the tribunal could reasonably conclude amounted to a fundamental breach of that implied term of the contract of service.  By doing so this tribunal did not misdirect itself in law.  

9.	There are various subsidiary points raised in the Appeal which really amount to pointing out that the tribunal did not go through in rote form the series of steps (a) concluding that the fundamental breach of contract did constitute a constructive dismissal in that this applicant resigned for that reason and (b) omitting to go through the process of saying that the Appellant had not established any reason for the dismissal (c) considering whether dismissal was reasonable or unreasonable in all the circumstances bearing in mind the administrative resources of the Respondent.  

10.	It seems to us that in paragraph 11 this tribunal makes it perfectly clear that it did conclude that the fundamental breach of contract did give rise to a constructive dismissal unreferring to its prior recitation of the facts.  Further, it is clear that the letter that was sent by the Applicant did say that the reason he was resigning was their failure to respond to his letter of 3rd March.  

11.	In concluding that the dismissal was unfair, the Tribunal did refer back to their account of the failure to supply written responses and it is of note that in paragraph 10, it did have regard to the administrative resources of the Appellant below in reaching the conclusion that they have should had done a great deal better than they did. 

12.	Therefore despite Mrs Omambala’s best efforts, we are perfectly satisfied that there is no reasonably arguable point of law in this appeal and therefore we dismiss this appeal at this stage.