Appeal No.	 EAT/319/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 September 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MR I EZEKIEL

MR VITTORIO DE PIANO	APPELLANT

CHARLIE BROWN'S AUTO CENTRES LTD 	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS ZIMBA MOORE
(of Counsel)
Free Representation Unit
Fourth Floor
Peer House
8-14 Verulam Street
London
WC1X 8LZ	

JUDGE PETER CLARK

1.	By an Originating Application presented to the Stratford Employment Tribunal on 24 September 1999 the Appellant, Mr Vittorio de Piano, complained of constructive unfair dismissal/redundancy, and breach of contract on the part of his former employer, the Respondent Charlie Brown Autocentres Ltd.

2.	By their Notice of Appearance the Respondent deny that they had dismissed him.

3.	The complaint came on for hearing before an Employment Tribunal sitting at Bury St Edmunds on 6 December 1999.  By a decision with extended reasons dated 7 January 2000 the Tribunal dismissed the complaint.  Against that decision Mr de Piano now appeals.  The question for us at this Preliminary Hearing is whether the appeal raises any arguable point of law, to go forward to a full inter parties hearing.

4.	We summarise the facts as found by the Tribunal.  The Appellant was a longstanding employee of the Respondent at their Ware, Hertfordshire branch.  The Tribunal were shown 2 written contracts of employment; in the first dated 2 January 1992 his job title was “MOT tester” in the second, purporting to take effect on 1 September 1996, he was described as “MOT/Mechanic”. The Tribunal found that the true contractual position was that he was employed to carry out the duties of MOT tester and repair mechanic.

5.	In June 1999 the Respondent took a decision to cease to perform MOT work and the servicing work connected with it at their Ware branch.  That decision was put into effect on 10 July.  Thereafter the appellant was engaged in delivery work, changing tyres and some vehicle repair work.  He did the latter work only when there was too much of it for the Manager and his Deputy to handle.

6.	The Appellant was unhappy about the cessation of his MOT work.  After taking his holiday between 24 July and 7 August he wrote to Mr Bridgeman, one of the owners of the business a letter dated 26 August , contending that by reason of the alteration in the type of work which he had previously done his position as MOT tester was redundant.  He asked for a reply within 10 days, failing which he said he would be forced to tender his resignation.

7.	Mr Millard, the Human Resources Director, replied to that letter on 3 September.  He asserted the Respondent’s intention to maintain the Appellant’s status and pay as an MOT Tester.  Efforts would be made to offer him relocation to a branch where MOT work would be available to him.  

8.	Having considered that response the Appellant wrote to Mr Millard tendering his resignation with immediate effect and requesting a redundancy payment and 12 weeks pay in lieu of notice, on 8 September.  He finished work on 11 September.  Shortly after lodging his originating application, he was offered an alternative position at the Ilford branch which he declined in view of the extra travel involved.

9.	The first issue for the Employment Tribunal to decide was whether or not the Appellant had been constructively dismissed within the meaning of Section 95(1)(c) of the Employment Rights Act 1996   An identical question arose in relation to his claim for pay in lieu of notice.  Unless he could show a dismissal his claims were bound to fail. 

10.	The questions raised by Section 95(1)(c) are these:

(1)	what are the relevant terms of the contract?

(2)	was the employer in breach of any relevant term, that breach being either actual or anticipatory?

(3)	if so, was that a fundamental breach going to the root of the contract entitling the employee to treat himself as discharged from further performance?

(4)	did the employee quit the employment in response to that breach and not for some other unconnected reason?

(5)	did he act reasonably promptly in resigning following the employer’s repudiatory breach?

Dealing with those questions, the Tribunal found the Appellant was employed as an MOT/Tester/repair mechanic.  If removal of the MOT work could be regarded as a breach of contract by the Respondent, that breach was not fundamental.  Consequently the Appellant failed to make out his case that he had been constructively dismissed.  The claims failed.

11.	In advancing this appeal on paper Ms Moore, who appeared below, has addressed the questions of dismissal, redundancy and unfair dismissal.  She accepts that the latter 2 questions arise only if it can be shown on appeal that the Tribunal erred in law in finding that any breach by the employer was not repudiatory.  That is essentially a question of fact for the Employment Tribunal; we can only interfere if their finding that the breach, if any, was not fundamental can properly be characterized as perverse.  See Pedersen v Camden Council [1981] ICR 674; Woods v WM Car Services (Peterborough) Ltd [1982] IRLR 413.

12.	We are not persuaded that Ms Moore can make out that case.  It is correct to say, as she submits, that the Tribunal found that if no MOT work was available it had a significant effect on the work which the Appellant was asked to do.  Nor is it an answer that similar work became available at a different site some distance away.  However, the Tribunal took into account their finding that there was no reduction in the Appellant’s status or pay.  Overall, they were not prepared to classify the breach, if there was one, as fundamental.  That is a finding of fact with which we do not feel able to interfere; regardless of how we might have approached the matter had we been sitting at first instance.

13.	Ms Moore further complains of procedural irregularities in the Tribunal proceedings.  These allegations are set out in an affidavit which she has sworn in these appeal proceedings dated 12 April 2000.

14.	Her complaints are twofold:

(1)	the Chairman declined to hear an opening address on behalf of the Appellant and 

(2)	he declined to hear argument on the issue of redundancy in closing speeches.

15.	To that affidavit the Chairman, Mr A B Pollok, has responded by letter dated 31 July 2000.  Our view of these matters is this.

16.	First, the Chairman points out that Ms Moore did not seek to make an opening address.  Ms Moore tells us today that she did not press the matter when the Chairman indicated that he did not need an opening.  In our view the Tribunal has a wide discretion to control its own procedure.  Whether or not an opening address is thought to be of assistance is essentially a matter for the Tribunal.  More to the point, the complaint appears to be that had the Tribunal heard an opening address by Miss Moore they would have appreciated the need to consider whether or not the Appellant was redundant.

17.	That leads into the second complaint.  Quite simply, it seems to us, unless the Appellant established a dismissal the question of the reason for dismissal (here, redundancy was alleged by the Appellant and denied by the Respondent) and its reasonableness becomes irrelevant.

18.	Ms Moore submits that the Chairman, without consulting with his lay colleagues, had potentially made up his mind before closing addresses were completed, on the question of dismissal.  Our view of the matter is that without formally giving an indication, it seems that the Chairman had in mind that it was first necessary to consider the question of dismissal before getting on to the question of the reason for that dismissal.  That seems to us a permissible approach.

19.	The Tribunal found there was no dismissal.  We have upheld that finding in the sense that we can see no grounds of law for interfering with it given our limited jurisdiction to correct errors of law.  It follows that we are no more concerned with the issue of redundancy than was the Employment Tribunal.

20.	In these circumstances this appeal must be dismissed at this preliminary hearing stage.