Appeal No. EAT/0159/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 June 2001

Before
MR COMMISSIONER HOWELL QC
MISS C HOLROYD
MR P R A JACQUES CBE

MR R MESSER & MRS M V MESSER	APPELLANT

BALFOUR 2000 LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS J BROWN
(Of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme	

MR COMMISSIONER HOWELL QC

1.	In this appeal, which is before us today for preliminary hearing, Mr Roger Messer and his wife Mrs Maureen Messer seek to have set aside as erroneous in law the unanimous decision of the Southampton Employment Tribunal, contained in extended reasons sent to the parties on 9 January 2001 at pages 7-13 of the appeal file before us, following a hearing which took place over two days on 31 July 2000 and 12 September 2000; the Tribunal being a fully constituted Tribunal with a Chairman and two side members.

2.	The unanimous decision of the Tribunal as set out in the decision document and summary reasons, which have been added to our appeal file, sent to the parties on 14 September 2000, was to dismiss the Applicants’ complaints of unfair constructive dismissal against their former employers Balfour 2000 Ltd, a company that owns a number of news agent shops, on the ground that the Applicants had resigned voluntarily from their employment and had not accordingly been either dismissed or unfairly dismissed.

3.	The proceedings before the Tribunal had been brought by Mr & Mrs Messer by Originating Applications on 7 May 2000, in which, as well as allegations of unfair constructive dismissal from their employment as joint managers of one of the news agent shops, they had complained of breaches of contract in the Respondents having sought to change the opening hours of the shop that they managed, and having therefore imposed on them extra responsibilities without providing for any extra payment for either them or the staff involved.

4.	The Tribunal rejected their complaints on the facts, for reasons stated summarily in the summary statement of reasons sent on 14 September.  These, briefly stated, were that, although the Respondent had indeed required the Applicants to extend the opening hours of the shop at which they were joint managers, nevertheless that did not involve, as a matter of fact, any requirement on them to be employed in a different capacity or to work any greater number of hours in any one week, nor did it involve any reduction in their remuneration because provision could have been made for the working hours of themselves and staff to be re-organised so as to accommodate the longer opening hours without any actual addition to the working hours.

5.	It was further held that the Applicants had failed to show that the Respondent in seeking to arrange the longer opening hours had been guilty of conduct amounting to any significant breach going to the root of the Applicants’ contract of employment; and accordingly when they had resigned their employment, as they did on 3 May 2000, they had done so voluntarily and not in response to any breach of contract giving rise to a constructive dismissal on the part of the Respondent.  Those reasons were considerably amplified and confirmed in the statement of extended reasons sent to the parties on 9 January 2001, which is before us.

6.	Against that decision Mr & Mrs Messer seek to appeal on grounds set out in the Notice of Appeal they have lodged, which were prepared by themselves, in particular contending that the Tribunal had failed to apply the terms and conditions of their contract of employment with regard to trading hours and that the company had ordered an extension of trading hours with no extra pay, which was unlawful as being contrary to the National Minimum Wage Act 1998.  Those contentions, it is implicit, embodied a contention that the Tribunal had erred in failing to take account of the factors that they stated there and emphasised in the four further pages stating their case on the extension of trading hours and alleging breach of contract by the Respondent, that they annexed to their Notice of Appeal dated 24 March 2001.
7.	Miss Brown, who has helpfully appeared on behalf of Mr & Mrs Messer before us today, under the ELAAS scheme, drew our attention to those stated grounds of appeal and refined them in her oral submissions to us by saying that they amounted to a contention that the Tribunal had erred in failing to consider the points that Mr & Mrs Messer had sought to raise at the hearing on the application of the National Minimum Wage Act 1998, and on the issue that they had sought to raise, that what had been proposed by the Respondent embodied a breach of their contract of employment.

8.	We have considered everything Miss Brown said in her oral submissions and also the written submissions contained in the grounds next to the Notice of Appeal but we have unanimously concluded that an appeal based on those grounds in this case is completely unarguable for three reasons in particular.

9.	The first reason is that, as recorded in paragraph 2 of the Tribunal’s extended statement of reasons on page 7 of the appeal file, breach of contract issues which are what the Notice of Appeal seeks to raise, were not pursued by Mr & Mrs Messer at the Tribunal hearing at all and indeed were expressly disclaimed.  The Tribunal recorded that:

2.	“Although the statements accompanying the applications refer to breach of contract and unfair constructive dismissal, it was confirmed by the Applicants at the commencement of the hearing that they brought no separate claim of breach of contract.  The sole claim of both Applicants is unfair constructive dismissal.”

10.	On that the Tribunal proceeded to hear sworn evidence and considered the documents relating to the issues on that claim.  That alone is a complete answer to any contention on appeal, that the Tribunal had erred in failing to consider issues other than unfair constructive dismissal.

11.	Secondly, in any event, we consider a claim for breach of contract on the ground of additional hours of responsibility to be unarguable because of the very wide terms of the particular contract of employment imposed by this organisation on its managers, who are responsible for the news agents branches.  As recorded by the Tribunal in paragraph 6 of its extended reasons:

“Managers are required to work the hours as laid down by the company in accordance with the trading hours of the branch.  The nature of the job does of necessity involve additional hours, especially when difficulties occur in the branch.  The Managers’ salaries take this into account and no further payment for additional hours will be made….”

That, like the job of running and managing a news agents store, may be harsh but it is undeniably there as a matter of contract; and that too prevents any claim being made for breach of contract as a result of the management seeking to reorganise working hours.  As the Tribunal recorded expressly in paragraph 24 of its extended reasons, although that clause is extremely wide drawn, its wording was clearly accepted by all three parties to the contract.

12.	Accordingly the Tribunal’s conclusion at the end of that paragraph, that the proposals made by the Respondent did not constitute a breach of clause 2 of the contract, appears to us justified on a proper construction of the relevant documents and also to provide an answer to any claim for breach of contract.

13.	Thirdly, the Tribunal made and recorded clear findings of fact that the actual proposals put to Mr & Mrs Messer by the Respondent in this case did not involve any requirement to involve additional hours, as distinct from a requirement to reorganise working times so as to keep the shop open for longer hours each day.  That was clearly recorded in paragraph 3 of the Tribunal’s summary reasons, to which we have already referred.

14.	It is repeated in paragraphs 8-9 of the Tribunal’s extended reasons, where they recorded that in deciding that because of lack of competitiveness of its confectionery/tobacco news agent stores, the trading hours would have to be extended by remaining opening open for an extra hour each week day and also on Sunday afternoons and recorded that:

“This was intended to be achieved not by anybody having to work longer hours in total, but by rescheduling the rotas and reducing the number of staff at quiet trading times.  The changed hours were to operate from Sunday 9 April 2000.”

15.	The Manager, Mr Sheriff, who was responsible for supervising Mr & Mrs Messer’s store explained to them specifically on 27 March 2000 that the proposals were for an additional 9 hours of trading time but, the Tribunal expressly recorded:

“…emphasised that there was no need for the Applicants to work longer hours themselves, nor to incur additional staff costs.  The Applicants raised no objections.”

16.	Finally in paragraphs 17-18 of the extended reasons the Tribunal recorded a finding that, following a further meeting between Mr Sheriff and the Applicants on 18 April 2000, at which a proposed rescheduled rota for staff duties was produced, at the conclusion of that meeting Mr Messer had agreed to trade the longer hours from the following Tuesday, on condition that £9.00 per week was added to his staff budget; and as recorded in paragraph 18 that condition imposed by Mr Messer was in fact met by the company on 19 April and Mr Messer reacted by saying that he felt they had won and that the company had backed down.  Mr Sheriff then reassured the Applicants that their positions as joint managers were secure.

17.	In those circumstances that in our judgement amounts to a clear finding of fact by the Tribunal that, whatever objections had been put forward before 18 April, an express agreement was reached between the Respondent and Mr Messer, subject to a condition imposed by Mr Messer, which the company met on the following day. Again, there can be no question after that of any continuing claim for breach of contract, based on the proposals to which Mr & Mrs Messer had previously made objection.

18.	For those three reasons, each sufficient in themselves but together in our judgement overwhelming, we have concluded that there is no arguable ground for saying that the Tribunal erred in any way in relation to the breach of contract claims.

19.	As to the claims of unfair constructive dismissal, which was the major ground put forward for the complaint to the Tribunal and on which the Tribunal based its decision, again the Tribunal has made clear findings of fact that, although Mr & Mrs Messer were of course unhappy with the position in which they found themselves, in managing this particular branch, there was no conduct on the part of the Respondent or its Managers, which constituted any breach of the implied contractual term of trust and confidence.

20.	The Tribunal expressed itself satisfied on that, and indeed, as recorded in paragraph 27, the Tribunal were satisfied that, on the contrary, it was the Applicants that had procrastinated, been uncooperative and failed to react in a positive way to the suggestions made by Mr Sheriff as to how they could manage the extended opening hours.

21.	The Tribunal’s conclusion is expressed in paragraph 31 in the following terms:

31.	“The Tribunal is further satisfied, on the evidence given by the Applicants themselves, that their reasons for resigning related to their disenchantment with their work and their misgivings as to their long-term future as employees.  Whether or not such misgivings were justified is immaterial.  The Applicants were perfectly entitled to resign and to disassociate themselves from the Respondent on account of those fears, but the Tribunal finds that the Applicants’ resignations were voluntary.  They failed to prove that they were constructively dismissed.

32.		Since there was no dismissal, the claim for unfair dismissal must fail.”

22.	Again, those appear to us to be clear findings of fact, adequately explained, supported by evidence before the Tribunal and not to embody any arguable misdirection on the part of the Tribunal as to the issues it was required to address.  We have therefore concluded that there is no possible arguable ground for criticising this Tribunal’s decision as a matter of law and we must therefore unanimously dismiss this appeal.