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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hodgetts v Arthur Prince (Turf Accountants) Ltd [1995] UKEAT 418_93_3101 (31 January 1995) URL: http://www.bailii.org/uk/cases/UKEAT/1995/418_93_3101.html Cite as: [1995] UKEAT 418_93_3101 |
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I N T E R N A L
At the Tribunal
Before
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR J D DALY
MR J H GALBRAITH CB
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant JENNIFER EADY
(OF COUNSEL)
Messrs Pattinson & Brewer
30 Great James Street
London WC1N 3HA
For the Respondents MR J CAREY
(OF COUNSEL)
Messrs Allan Janes
21-23 Easton Street
High Wycombe
Bucks HP11 1NU
MR JUSTICE MUMMERY (PRESIDENT): Mrs Hodgetts appealed against the rejection of her case by the Industrial Tribunal in the decision already discussed in relation to Mrs Bradford's claim. Mrs Hodgetts had been employed as a cashier by Coral Racing Limited. She also claimed redundancy and constructive dismissal in her originating application presented on 25 October 1991. Her case was that Arthur Prince (Turf Accountants) Ltd bought the business at the betting shop where she worked for Coral and agreed to employ her on a 32 hours per week contract. She went sick due to severe stress and depression. During that period she was informed that her contract would be reduced to 18 hours per week. That was only one of a number of changes that Arthur Prince made unilaterally. Other benefits, which had been arranged or excluded by the changes made by Arthur Prince, included bank holiday payments, bonuses and annual pay increases. She complained that she had become so exasperated with the situation that she gave notice to leave the Company on 28 September 1991.
The main point made in Mrs Hodgetts' case was different from Mrs Bradford's. Mrs Bradford's main point was that she had been demoted from cashier training officer to a cashier and a secondary complaint was that she had been denied fringe benefits. Mrs Hodgetts' main claim was that her hours of work had been reduced in breach of contract. She had been put down from a 32 hour week contract to an 18 hour week contract and that would be, if established, a breach of contract by the employer. A breach of contract, if it amounted to a repudiation by the employer, would constitute constructive dismissal. That was the issue before the Industrial Tribunal.
In the Notice of Appearance dated 27 November 1991 Arthur Prince made their position clear. On the redundancy claim they said simply she was never made redundant. Arthur Prince took over Coral's business, including the shop where Mrs Hodgetts worked as a cashier and she was offered employment on the same terms as previously. On the constructive dismissal, their case was that Mrs Hodgetts was employed by Corals on an 18 hour week contract, but was regularly offered more hours, if she required. Arthur Prince continued that arrangement. Their case was that she walked out of the shop without an explanation on the same day as Mrs Bradford. She later provided a certificate of sickness which left 3 days unaccounted for. No explanation was given. Their case was, therefore, that Mrs Hodgetts had resigned. If she had resigned she could not claim unfair dismissal.
The Tribunal's conclusion on Mrs Hodgetts' claim was based on a fair quantity of evidence. We have seen in Mrs Hodgetts' case a bundle of documents, a transcript of a telephone conversation that took place between her and Mrs Reynolds on 27 September 1991, the day before she stopped working. That transcript alone runs to over 20 pages. We have been referred by Miss Eady who presented the case very ably on behalf of Mrs Hodgetts, to detailed passages in the Chairman's Notes of Evidence.
On mature consideration of the various points, the case really is quite simple for the purposes of this appeal. The Tribunal came to the conclusion on the evidence that Mrs Hodgetts had resigned and there had been no breach of contract on behalf of the employer. They set out Mrs Hodgetts' complaint and the evidence that was given in support of it. They dealt in detail with the manner in which she left the employment. They came to the conclusion that there had not been any breach of contract on the part of Arthur Prince.
In our view, having looked in some detail at the documents and the Notes of Evidence, we are satisfied that this Tribunal had before it evidence on which it was entitled to conclude that Mrs Hodgetts did not have a 32 hour week contract with either Coral before the takeover or with Arthur Prince after the takeover. There are indications in the evidence going both ways, but it is clear from the documents alone that there was material to justify the Tribunal's conclusion on Mrs Hodgetts' hours. We refer in particular to the notes of a grievance meeting dated 13 August 1991 (pages 16/17 of documents bundle) indicating that Mrs Hodgetts' contract was for 18 hours a week, though she had, in addition to those, regularly worked more than 18 hours. It is also indicated in the payslips, which have been produced for the 3 weeks after the takeover by Arthur Prince, that her contract could well have been for 18 hours a week, with separate accounting for hours worked over that. The first payslip refers to 32 hours. That is dated 6 September 1991. The takeover was on 2 September. The two weeks 13 September and 20 September show a separate breakdown of 18 hours and the additional hours of 17 in the second week and 14 in the third week. It is not necessary to quote from the Notes of Evidence which show that there was oral evidence given to the Tribunal which they could also rely on to support their conclusion that there was no breach of contract by the employers unilaterally reducing the hours of work from 32 to 18.
We therefore find no error of law by the Tribunal in rejecting Mrs Hodgetts' main point. There was no error of law by the Tribunal in identifying the hours complaint as her main point. It was essentially a question of fact. There was no misdirection of law.
As to the other complaints made in Miss Eady's helpful outline argument we were told by her at the outset that the complaint that the Tribunal erred in law in failing to consider this case as one of direct dismissal was abandoned. That left some complaints that can be fairly described as relatively minor. There was a complaint that the Tribunal had wrongly denied Mrs Hodgetts an opportunity of playing to the Tribunal during the hearing the tape-recording of which the Tribunal was provided with a transcript. We have seen a transcript. The position, as we understand it, is that a tape was supplied to the Tribunal for them to play to themselves. We are unable to see that there was any error of law by the Tribunal in dealing with the tape evidence either by means of the transcript and/or by playing the tape privately instead of in the hearing room. It is well provided in the Rules of Procedure that the Tribunal can regulate its own procedure. It can do what it thinks best for the just handling of the case. We are unable to see any denial of justice, amounting to an error of law, in dealing with the tape in that way.
As to the complaints of fringe benefits we are inclined to agree with Mr Carey that that did not figure very much at all in Mrs Hodgetts' complaint in her IT.1. The understanding of the Tribunal appears to have been that the complaint about fringe benefits was a common complaint by all three of them. They were lumped together and decided by the Tribunal's conclusion that, in the case of Mr Bayliss, who had made the clearest complaint of breach of contract in relation to fringe benefits, there was no breach of contract, because none of the items to which Mr Bayliss was entitled under his contract of service with Corals. There could therefore be no breach.
The Tribunal stated in paragraph 18:
"It was common ground as far as all three applicants were concerned that they were to be denied certain fringe benefits as has been stated above."
It appears to us, again having looked at the documents and Notes of Evidence, that the Tribunal were entitled to come to the conclusion that, insofar as Mrs Hodgetts had any complaint about fringe benefits, she was in no different position from Mr Bayliss; that is, that the benefits were non-contractual. They were discretionary and therefore there had been no breach in the discontinuance of them.
The final complaint of detail was in relation to the failure to pay sick pay. We agree with Mr Carey, who appeared for Arthur Prince, that there was no case made out on the evidence to show a breach of contract which would found a case of constructive dismissal.
That leaves a general point already mentioned and commented on in the judgment in Mrs Bradford's case. A general point was made by Miss Eady that the Industrial Tribunal had erred in law in consolidating her client's case with the applications of Mr Bayliss and Mrs Bradford. On that we say there was no error of law in consolidating the cases. It was in the interests of everybody to hear them before the same Tribunal one after the other. Some of the same witnesses were involved in each of the cases. It would save time and costs for everybody. We are also satisfied there was no error of law in giving a combined decision. But for reasons already stated this is not best practice, because it can lead, as Miss Eady pointed out, to some lack of clarity and confusion of issues and might lead, in some cases, to a failure of the Industrial Tribunal to make a clear statement of primary findings of fact on essential issues between the different parties.
The main duty of an Industrial Tribunal is first to find the facts. If there is a conflict, to resolve them clearly. The second duty is to explain the reasons for the decision by reference to the facts and the law so that a party knows why he has won or lost a case. We are satisfied that, reading this decision as a whole, the findings of fact are sufficiently clear to support the conclusions and the reasons given are sufficiently clear to make it known to Mrs Hodgetts why she failed in her claim. For future reference Industrial Tribunals would be well advised, when they hear consolidated proceedings, to give separate decisions in relation to each of the Applicants, so that the Applicants can see clearly how their complaint has been treated and not feel that their complaints have somehow been mixed up with and lost in the details of another Applicant's complaints.
With that criticism we come to the conclusion that, though this decision is unsatisfactory in form in certain respects, there is no error of law in it. The appeal will therefore be dismissed.
