Appeal No.	 EAT/1407/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 March 2001

Before
HIS HONOUR JUDGE PETER CLARK
MRS A GALLICO
MR P R A JACQUES CBE

MRS J PANTER	APPELLANT

SWAN (WORTHING) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MR J GRIFFITHS
(Employment Advisor)
Industrial Relations
Consultancy Services
5 Jersey Road
Ferring
Worthing
W Sussex BN12 5PZ	

JUDGE PETER CLARK

1	These proceedings have become protracted in the following circumstances.  The Appellant, Mrs Panter was employed by the Respondent and its predecessors from April 1985 until her written resignation delivered to the Respondent by hand on 26 March 1999.  On 6 July she presented an originating application to the Employment Tribunal complaining of unlawful deductions from wages, breach of contract and unfair dismissal.  In October 1998 a Tribunal decided that she had been unfairly dismissed.  Against that decision the Respondent appealed.  Following a Preliminary Hearing held on 14 April 1999 a division of the EAT sitting on 1 November 1999 allowed the appeal and remitted the case for rehearing.

2	The fresh Tribunal hearing took place before an Employment Tribunal sitting at Brighton under the Chairmanship of Mr M J Davey on 30-31 August 2000.  The sole question was whether or not the Appellant had been constructively unfairly dismissed.  The claims of unlawful deductions and breach of contract were adjourned.  Those matters were finally disposed of by consent on 2 November 2000.

3	The Davey Tribunal dismissed the Appellant’s complaint of unfair dismissal by a decision with extended reasons promulgated on 3 October 2000.  An application for review of that decision has been dismissed.  The Appellant’s appeal against that decision by a notice dated 13 November 2000 now comes before us for Preliminary Hearing.

The Facts
4	The primary facts relevant to this appeal, as found by the Davey Tribunal, may be summarised as follows:
The Appellant was continuously employed by West Sussex Motors as a salesperson at their Worthing premises from April 1985 until that business was transferred to the Respondents on 2 February 1998.  The Respondent accepted that on that date a relevant transfer took place for the purposes of the TUPE regulations and the Appellant’s employment then transferred to the Respondent.  The Tribunal deal in some detail in their reasons with the dealings between the Appellant and 2 members of the incoming management team, Terry O’Brien, the managing director and Nick Pratt, the sales director.  It seems that the passage of time since those events leading to the hearing in late August 2000 had dimmed recollections.
That said, the Tribunal made the following findings:
	(1)	Prior to the transfer the Appellant was employed on terms and conditions described by the Tribunal as the West Sussex Contract.
	(2)	On 30 January 1998 Mr Pratt handed to the Appellant a document (A6 below) setting out a salary proposal altering her previous salary and commission arrangements.  The Tribunal found that she accepted these new terms, grafted onto the West Sussex Contract.  The Tribunal called the contract as varied by A6, the ‘Upgraded West Sussex Contract’.
	(3)	On 27 February 1998 Mr Pratt delivered to the Appellant a letter (A7 below) which purported to be a contract of employment containing certain terms not found in the West Sussex Contract, (the new contract).  
	The Tribunal accepted that if those terms had been unilaterally imposed on the Appellant by the Respondent they would have amounted to a substantial change to her detriment for the purposes of Regulation 5(5) of TUPE.  Whether the imposition of those terms would have amounted to a fundamental breach of contract by the Respondent was not decided by the Tribunal because:
	(4)	they found that the terms of the new contract (A7) were not imposed on the Appellant by the Respondent prior to her resignation effective on 26 March.  On the contrary they find, at paragraph 17 of their reasons, that at a meeting held in early March, the parties agreed a 1 month moratorium over her signing of the new contract.  That month had not elapsed before she handed in her resignation.
	(5)	On 24 March she wrote the letter of resignation which she handed to the Respondent on 26 March. It read:
			“Dear Nick and Terry
			Due to another bout of illness and after careful consideration, I have decided to give up working.  It has been a difficult decision but one I feel I must take.  In order that you will not be stuck I am happy to give a month’s notice as at today.
			Yours sincerely
			Jenny Panten”
	The bout of illness was a reference to her husband’s then poor state of health.
	Against that factual background the Tribunal:
(i)	rejected the Appellant’s case that the Respondent was in breach of the implied terms of mutual trust and confidence in 5 respects, dealt with at paragraph 21 of the reasons.  We shall refer specifically later in this judgement to paragraph 21(iii)
(ii)	further rejected the Appellant’s case that the Respondent was in fundamental breach of contract by unilaterally imposing the terms of the new contract on the Appellant
	(iii)	found that although at the end of March the Respondent did not pay the Appellant in accordance with the Upgraded West Sussex contract, that is in accordance with the document A6 formula, and that this amounted to a breach of contract, it post-dated the Appellant’s resignation and thus could not be a ground for constructive dismissal.  If it was capable of amounting to or forming part of a repudiatory breach by the Respondent, the Appellant did not resign in response to such breach.

	It is now established law, that for there to be a constructive dismissal under Section 95(1)(c) of The Employment Rights Act 1996:
	(a)	There must be a breach of contract by the employer.  This may be either an actual breach or anticipatory breach.
	(b)	The breach, or if more than one, the cumulative breaches must be repudiatory
	(c)	The Appellant must leave in response to the breach and not for some other unconnected reason.
	(d)	He must not delay too long, or he may be taken to have waived the breach.

	That formulation set out in Harvey Volume 1 paragraph D1-403, is based on the approach of the Court of Appeal in the leading case of Western Excavating (ECC) Ltd v Sharp (1978) ICR 221.

	Against that legal background, bearing in mind also that the question whether the employer was in breach and if so whether the breach was fundamental or repudiatory are essentially questions of fact for the Tribunal, see Woods v WM Car Services (Peterborough Ltd) 1982 IRLR 413.  We turn to consider the submissions made by Mr Griffiths in support of the appeal.  He takes 3 points.

5	First, he submits that the Tribunal fell into error in their application of Regulation 5(5) of TUPE to the facts of this case in paragraph 26 of their reasons.  He submits that the Respondent imposed the new contract on the Appellant and that, bearing in mind the finding that the new contract represented substantial changes to her detriment, gave rise to a right for the Appellant to terminate her contract without notice, pursuant to Regulation 5(5) of TUPE.  We think that that submission is misconceived based as it is on the proposition that at the time of termination the Respondent was in anticipatory breach of contract.  It is well established, see Hochster v de La Tour (1853) 2EB 678, applied in Sarker v South Tees Accute Hospital NHS Trust  (1997) IRLR 328 para 13, that an unequivocal notice by the employer to the employee that he will not at some time in the future perform his side of the contract is an anticipatory breach which the employee can then accept and treat himself as discharged from further performance.  However, clear and unequivocal notice of a future intention not to be bound by the contract is an essential prerequisite of an anticipatory breach.  In this case the Tribunal found as a fact that during the one month moratorium, which had not expired by 26 March 1998, there had been no such unequivocal notice given to the Appellant by the Respondent.  On that finding we are satisfied that there was not anticipatory breach for the purpose of Section 95(1)(c) of the 1996 Act nor could it be said for the purpose of Regulation 5(5) of TUPE that a substantial change is made in her working conditions to her detriment at the time of termination.  Consequently we reject the first submission.  

6	Secondly, Mr Griffiths submits that having been taken to the Court of Appeal decision Weathersfield v Sargent (1999) ICR 425, which overruled the suggestion in the EAT decision in Holland v Glendale Industries Ltd (1998) ICR 493, that on leaving, an applicant who later complains of constructive dismissal must give the Respondent his reasons for leaving at the time of leaving, that authority was not taken into account and applied by the Tribunal in this decision.  We cannot accept that submission.  Paragraph 24 of the reasons reads, so far as is material:

“The letter [that is the letter of resignation] contains none of the allegations referred to above and while the failure to draw attention to the true reasons for resignation is not fatal to the Applicant’s case, it is right that one should take account of what the resignation letter does say.”

It seems to us that that is a proper application of the principle in Weathersfield v Sargent.

7	Thirdly, Mr Griffiths submits that the Tribunal was wrong to exclude evidence of an allegation of dishonesty involving a motor car purchase by Mr Fords from the Respondent which the Appellant claimed, the Respondent had falsely re-designated by spraying part of the car and changing badges.  The background is that that allegation was not raised at the initial Tribunal hearing in October 1998 at all.  Mr Griffiths tells us that he raised the matter with his opponent on 6 April 2000 some 5 months prior to the hearing before the Davey Tribunal.  However, it is the Tribunal’s finding at paragraph 21(3) of their reasons that it was an allegation wholly new and raised for the first time on the first day of the hearing before the Davey Tribunal, when documents were produced to the Respondents for the first time in support of that allegation.  It seems to us, having read the Tribunal reasons at paragraph 21(3) that they were entitled as a matter of procedure to exclude evidence relating to that allegation but further we repeat the principle that an employee must leave in response to the repudiatory breach complained of, whether or not those breaches are made clearly to be the reason for leaving in the letter of resignation.  It seems to us extraordinary that an applicant who has been through a full Tribunal hearing should some 2 years later at a second hearing, seek to raise a wholly new allegation on the basis that it formed part of the repudiatory breach causing her to leave the employment.  In these circumstances we shall not interfere with that part of the Tribunal’s approach.

8	It follows having considered the 3 grounds raised in this appeal that in our judgement they disclose no arguable point of law which ought to go forward to a full appeal hearing and consequently we shall dismiss this appeal.