Appeal No.	 EAT/85/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 February 1998

Before
HIS HONOUR JUDGE C SMITH QC
LORD DAVIES OF COITY
MR P A L PARKER CBE

CENTRETHORN LTD	APPELLANT

MRS M WALKER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	

	JUDGE SMITH QC:   This is an application by Centrethorn Ltd who were the Respondent employers before the Industrial Tribunal, against the decision of an Industrial Tribunal held at Manchester on 21 July 1997, on which Extended Reasons were sent to the parties on 9 October 1997, when the Industrial Tribunal held unanimously that the Applicant, Mrs Walker, had been constructively dismissed, that the dismissal was unfair and that she did not contribute to her dismissal: but they held that it would be just and equitable to reduce the compensation awarded to her by 35% and they found that there was no unlawful deduction of holiday pay but that there was an unlawful deduction of statutory sick pay between 1 April and 2 May 1997 and they adjourned the case to a date to be fixed for a remedies hearing.

	We have noted that the Appellants who request leave to proceed to a full hearing of their appeal do not intend to be present at the hearing before us today and we have noted the communication to the Registrar dated 22 January 1998 in that regard.  We have, of course, considered very carefully the Notice of Appeal and also the Skeleton Arguments, which really very much follow the lines of the Notice of Appeal.  We have considered those documents and we have reminded ourselves that the Appellants before us today, do not have to do more than establish that there is an arguable ground of appeal to be entitled to proceed to a full hearing of the appeal.

	We note that this appears to us to be a carefully worded and carefully reasoned decision.  The Applicant employee before the Industrial Tribunal, Mrs Walker, had been employed over quite a long period, from 1985 to 1997 and the Industrial Tribunal took considerable care in setting out the facts which they found.  Having set out those facts in very great detail they carefully set out the law that applied to constructive dismissal, because they were concerned with an allegation of constructive dismissal; they referred to the cases of Western Excavating (ECC) Ltd v Sharp [1981] ICR 221 and to Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666 and they directed themselves correctly with regard to the claims made in respect of unlawful deductions.  They outlined submissions that had been made to them and then they reached their conclusions in paragraph 14.  They found that the Applicant had been constructively dismissed and they expressed themselves satisfied on the facts that they found, that there was not the slightest reason for the Respondents to suspend the Applicant’s statutory sick pay and they concluded that, unfortunately, the only reason why the Applicant’s statutory sick pay was suspended was that this employer did not choose to pay her any money any longer, despite the fact that such money could be set off against tax.  They found that the Respondent employers exhibited an intention no longer to be bound by the terms of their contract with the Applicant employee.  

	The Industrial Tribunal then went on to deal with the matter as follows in paragraph 15.  They said that if they were wrong in relation to the findings they had made in relation to statutory sick pay, they went on to find that the Respondent’s conduct over the previous months in removing the Applicant’s Assistant Manager status; issuing warnings; removing her right to smoke without consultation; pettiness shown over her hospital appointment; culminating with the suspension of her statutory sick pay amounted to a fundamental breach of the implied condition of mutual trust and confidence, entitling the Applicant to treat the contract as terminated and they viewed the suspension of the Applicant’s sick pay as being the final straw, entitling her to resign in circumstances of constructive dismissal.  

	The Industrial Tribunal found in paragraph 18 that the Applicant should have been paid her statutory sick pay from 1 April to 2 May 1997, so that her claim had been made out in relation to an unlawful deduction under Section 13 of the 1996.  
	That is no more than a summary of the Industrial Tribunal’s decision, which we repeat was, on the face of it, a carefully worded and reasoned decision.  It is against that background that we come to look at the points put forward in the Notice of Appeal and in the Skeleton Arguments.  There is a reference to specific points that were taken, one by one, in paragraph 6 of the Notice of Appeal.  There is a reference to facts in paragraph 2, which is a reference to the way the Industrial Tribunal had dealt with the “time-off” matter.  But in our judgment all that is contained there is an attempt to re-open questions of fact, which have been decided adversely to the Appellants before us by the Industrial Tribunal.  Exactly the same goes with regard to the appointment as Assistant Manager; that was entirely a question of fact.  With regard to the smoking, and indeed, with respect, to all the other matters that are contained in this Notice of Appeal and Skeleton Argument, we should emphasise that we can only allow matters to go forward by way of an appeal to a full hearing if there is a question of law or some perverse finding by the Industrial Tribunal, whereas we are all satisfied that what is attempted here, perhaps understandably because the employers do not agree with the decision, is an attempt to re-open matters of fact, all of which have already been decided adversely to the Appellants in this decision of the Industrial Tribunal.  For those reasons, this application will be dismissed.