Appeal No. EATS/0035/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 24 November 2003

 
Before
THE HONOURABLE LORD JOHNSTON
MISS S B AYRE
MISS A MARTIN

 

Ms KERRY A WRIGHT	APPELLANT

 

 
LAWRIE’S TRAVEL AGENCY	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr R Livingstone, Representative
Of-
City of Edinburgh Council
Welfare Rights Advice Shop
85/87 South Bridge
EDINBURGH   EH1 1HN

 

For the Respondents

 

 

 

Mr Ian Kennedy WS
Solicitor
13 Great King Street
EDINBURGH   EH3 6QW

 

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the appellant employee against the decision of the Employment Tribunal sitting in Edinburgh determining that she had not been constructively dismissed from her employment with the respondents, although it found that she had been discriminated against in terms of the Sex Discrimination Act 1975 and awarded her compensation.
 
2.	It is not necessary to consider the facts as found by the Tribunal in any detail, save to recognise that the problems that manifested themselves, arose only after the appellant became pregnant.  She maintained in evidence that the treatment thereafter meted out to her was related to that, although she was not claiming automatic dismissal thereanent and that it amounted to discrimination in terms of the Sex Discrimination Act 1975, and, further, that it amounted to a material breach of contract going to the root of her contract which entitled her to resign.
 
3.	The Tribunal in fact find that she had resigned quite separately from any question of her treatment in relation to the sex discrimination claims and, that, in any event, she had not been dismissed.  The question of the unfair dismissal therefore did not arise.
 
4.	The appellant, represented by Mr Livingstone, sought to argue before us that, on any view of the matter, the treatment which had been meted out to her which had been categorised as discrimination, was fundamental and destructive of her contract of employment.  The issue of part time working which also featured in the Tribunal’s consideration was not the essential, but only one of the reasons for her resignation.
 
5.	However, as Mr Kennedy, appearing for the respondents, pointed out, that while the appellant’s evidence was found to be credible and supported a claim of discrimination, it was impossible to determine an action or discrimination on the part of the respondents that amounted to a material breach which resulted in the applicant’s resignation.  The categorisation by the Tribunal to the effect that the conduct complained of did not amount to material breach leading to resignation of therefore dismissal, was essentially a question of fact and we are satisfied that the Tribunal properly considered the matter and reached a decision that they were entitled to achieve in the circumstances.
 
6.	6.                  It follows that no further issue arises since automatic dismissal is not claimed on the pleading, this appeal must be refused.