Appeal No. EAT/83/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9th February 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MS B DEAN

MRS G WHITE	APPELLANT

PUBLIC HEALTH LABORATORY SERVICE BOARD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR PETER OLDHAM
(Of Counsel)
Mr R C White
Solicitor
The Granary
Upper Woodford
Salisbury
Wiltshire
SP4 6PA

	

	MR JUSTICE WOOD (PRESIDENT):  This is an appeal by way of a preliminary hearing by Mrs White from a decision of an Industrial Tribunal sitting at Southampton under the Chairmanship of Mr Trickey who after a hearing of two days in the Autumn of 1991 dismissed her allegation that she had been constructively dismissed by her employers The Public Health Laboratory Service Board.  The Tribunal found that she had resigned and therefore that her claimed failed.

	At this preliminary hearing we sit to see if we can discern an arguable point of law which merits argument with both sides present, a preliminary hearing being only with the Appellant to show cause and explain to us why the matter should go to a full hearing.  We look, therefore, to see whether there is a discernible error of law which merits a full hearing.

	The Applicant was employed by the Respondents as a Secretary to the Financial Controller, Mr Peter Higham at Porton Down, near Salisbury in Wiltshire.  She had been working there from the 18th October 1982 until her employment came to an end on the 1st February 1991.  Her terms of employment were that she was a full-time Secretary and the weekly hours were therefore 37.

	During 1990, in the Summer, and towards the end of August indeed, she wished to attend Salisbury College, to attend a foundation course as a prelude to university education.  This was not, in fact, concerned in any way with her employment as a Secretary, she wanted to go and take university education.  For that purpose it was necessary for her to take time off, so that she was no longer able to work full-time but wanted to work part-time.  She discussed this with Mr Peter Higham, the Financial Controller, and he said that he would have to speak to his immediate superior, who was a Dr Sutton.  As a result of that approach a memorandum came into being, which was in fact typed by the Applicant.  It explained that her request would be considered and, if necessary, a part-time arrangement could be made.  It was in fact made, and her working time was reduced to 26 hours a week, 31/2 days a week, which if my appreciation of the facts are concerned, meant Tuesday;  half-Wednesday;  half-Thursday and Friday.  She continued in that way.  As a result of that arrangement she in fact paid her deposit for the course, and it was due to start on the 17th September 1990, but, it was always clear that the arrangement was subject to any final verification after a restructuring of the Central Division of the Establishment was being considered.  Thus the part-time arrangement came into being, albeit subject to that overall exception.

	However, on the 9th October 1990, it was decided as a matter of policy by those at the "top", that part-time working for Senior Secretaries, that is secretaries who were the Senior Secretaries to the most important members of management, could not continue but would have to revert to work full-time.  This was made clear to the Applicant.  It was therefore, a change from the agreed variation to 26 hours per week;  this was clearly upsetting for the Applicant.  So that matter was discussed again between the Applicant and Mr Higham.  She told Mr Higham that she was quite clear that she wished to continue her college course while continuing her job at the same time and that therefore she would use her annual leave, as had been suggested in discussions between them.  She told Mr Higham that when her annual leave ran out she would have to leave her employment by giving four week's notice.  There was thus, as the Tribunal found, not only a further variation but a breach of the variation to reduce her hours of work to 26 hours per week.  However, that was the new arrangement, the Applicant was told that she could use her leave allowance to look for alternative employment and the Tribunal then, find this, paragraph 5 h.:
"Mr Higham knew at 15 October that the applicant would be leaving when her holiday entitlement expired unless some other solution could be found.  Mrs Busby, the personnel officer, was of the same understanding."

	Thereafter the Applicant continued her work on a full-time basis and used her leave so that she could attend the college as she wished.  She was naturally hoping that the restructuring might take place before her annual leave ran out, but that it did not do.  And so, on the 7th January, she gave written notice of four weeks, as had been arranged between them, to take effect on the 1st February 1991.  Her letter reads:
"It is with regret that it is my intention to resign as your secretary with effect from 1 February 1991.

In view of our discussions regarding the lack of work within the Department to occupy me on a full time basis, and the executive company decision not to permit me to reduce my hours at CMAR, I have no alternative but to make this extremely sad decision."

Her case was that, working under the new regime, which was introduced in the October 1990, eventually, when there was no part-time work available she accepted the repudiation or the alteration in the part-time contract variation and therefore this was a constructive dismissal.

	The Industrial Tribunal rejected that submission and argument, they found that originally, and I am putting this quite shortly, she was working full-time.  Then there had been the variation by agreement to 26 hours per week and that the decision in October that she could not continue to work part-time but had to go back to the 37 hour full-time was a breach, and a fundamental breach, which she was entitled to accept and if she had accepted it she would have been constructively dismissed.  However, they look at the terms of her letter and feel that it was not in a direct response to the employer's breach of contract.  They then round off their Reasons in the last paragraph:
"Furthermore, we find that by agreeing to revert to full-time working with the condition that she could utilise her holiday entitlement to enable her to attend her course, there was a further variation of contract.  The applicant used this to her advantage so that we find in all the circumstances mentioned the applicant has effectively waived the breach of contract and agreed to vary it.  We find that there was no dismissal of the applicant constructive or otherwise."

It is clear therefore, that the Tribunal have found that the arrangement entered into between the Applicant and Mr Higham, after that October whereby she was to use up her leave, was a variation and agreed to as a variation and thereby, or perhaps even separately on a different limb of argument, that by entering into that arrangement, whether or not it was strictly a variation but nevertheless it was an effective waiver of the fundamental breach of October 1990.

	The submission made by Mr Oldham is that that position was not one which holds industrial logic.  It was not one which an industrial tribunal on a proper appreciation of the facts could have reached.  It could not be said, so he submits, that by accepting the breach she lost her chance to accept the repudiation.  He has drawn our attention to Bliss v. S E Thames Regional Health Authority [1987] ICR 700, and submits that that was a case where the Court of Appeal had reversed the judgment of the learned Judge who had held that there had been too long a delay between what was accepted to have been a fundamental breach entitling repudiation and the acceptance of the repudiation.  Without turning to the facts of the case in detail what had happened there is that a Consultant Surgeon had been criticised for a number of angry and offensive letters, in other words there was a clash of personalities between consultants.  The Health Authority had taken the rather extreme course of asking him to submit himself to psychiatric examination.  He was found to be perfectly normal and it was held that to ask someone to do that was a fundamental breach.  But thereafter the plaintiff received his salary and was given a period of time in which to make up his mind whether to continue with his contract and his salary, or to elect to treat the contract as repudiated.  Therefore, on the facts of that case he was given the time in between to make up his mind and it seems to us that that is a distinction between Bliss and this case on the facts.  Lord Justice Dillon who gave the leading judgment in the Court of Appeal deals with the facts of the matter on page 716, after citing the well known passage from the speech of Lord Denning in Western Excavating (EEC) Ltd v. Sharp [1978] ICR 221, page 226, where the learned Master of the Rolls said:
"Moreover, he must make up his mind soon after the conduct or which he complains:  for, if he continues for any length of time without leaving he will lose his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract."

Having read that passage and also referred to a statement from the judgment of Mr Browne-Wilkinson as he then was in Cox Toner (WE) (International) Ltd & Crook [1981] ICR 823 at page 828,  The learned Lord Justice Dillon goes on at F as follows:
"These are, however, merely guidelines to be applied to the facts of any particular case.  In the present case the cardinal factor, as it seems to me, is that the authority was repeatedly prepared to give the plaintiff time to make up his mind and to pay him his salary while he was making up his mind."

That is again, repeated a little later.  So that on the facts of the case, in our judgment, Bliss is to be distinguished. 

	This is an issue of fact, there is no doubt about that and that is conceded, quite rightly, by Mr Oldham.  Therefore, could this Tribunal, having found its facts and having seen and heard the witnesses and being able to sum up the situation, could they have decided as they did, that there was a further variation of the contract in October 1990 which by itself, or even if it was not strictly variation, was the conduct of the Applicant as such that time had lapsed and then when she resigned she did not resign on the basis of any breach in October 1990 but she simply resigned because it suited her and she realised that she could not manage to continue with the Respondents and to carry on her course.  They decided it was the latter, we can find no error of law in a very carefully reasoned judgment and this appeal must be dismissed at this juncture.  I should just add for the purposes of the appeal and the record that the Appellant has agreed that this matter should be heard by a Tribunal too.