Appeal No.	 EAT/573/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR R N STRAKER
MS B SWITZER

MR A THOMPSON	APPELLANT

RITEC LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR C SHELDON
(of Counsel)
Mr G J Oakley
Solicitor
46-67 Baker Street
London W1A 1DN	

	JUDGE PETER CLARK:     The Appellant, Mr Andrew Thompson, was employed by the Respondent, Ritec Ltd, as Market Development Manager.  That employment extended from 26 January 1987 until his resignation on 1 March 1994.

	On 18 March 1994 he presented a complaint of unfair dismissal to the Industrial Tribunal.  He alleged that he had resigned in circumstances amounting to constructive dismissal and that such dismissal was unfair.

	The nature of his case, in a nutshell, was that he became aware that his employer was not making its contributions to the pension fund of which the Appellant was a member.  That matter was the subject of lengthy correspondence culminating in his resignation.

	The matter came before an Industrial Tribunal sitting at London (North) under the chairmanship of Mr P.R.K. Menon on 13 - 15 March 1996.  In a lengthy reserved decision with extended reasons promulgated on 9 May 1996 the Tribunal concluded that although, as the Respondent accepted, the failure to make pension contributions amounted to a breach of the Appellant’s contract of employment, that was not a repudiatory breach.  It was a state of affairs forced on the Company due to financial difficulties and the Appellant knew that the Company would make up the deficit as soon as possible.  Further, there was no breakdown in trust and confidence between the parties prior to the Appellant’s resignation.  Accordingly there was no constructive dismissal and, it followed, no actionable unfair dismissal.

	Against that decision the Appellant appealed to the EAT.  His appeal came before a division presided over by Judge Levy QC on 10 December 1996.  In an equally lengthy judgment delivered by Judge Levy the EAT allowed the appeal and remitted the case to the same Industrial Tribunal to reconsider the question of whether the Respondent was in fundamental breach of contract in accordance with the guidance given by the EAT in its judgment.

	The matter came back before the same Industrial Tribunal sitting on 15 December 1997.  By a reserved decision with extended reasons dated 18 February 1998 the Tribunal reached the same conclusion as before, namely that the Respondent was not in fundamental breach of contract and thus the Appellant had not been constructively dismissed.

	Now there is a second appeal against that decision.  The particular point which troubles us, and which of itself merits a full appeal hearing is this.  The Court of Appeal has said that the question as to whether a breach of contract by an employer is repudiatory is essentially a question of fact for the Industrial Tribunal:  see Pederson v Camden London Borough Council [1981] ICR 674; applied by the EAT in Woods v WM Car Services [1981] ICR 666.  Normally, this EAT will only interfere where the Industrial Tribunal decision is perverse in the proper legal sense of that word.

	Secondly, it is perfectly permissible for the EAT, having identified an error of law on the part of the Industrial Tribunal, to take one of a number of courses including remitting the case to the same Industrial Tribunal for reconsideration.  In our experience that power is rarely exercised and then only when further purely factual questions require resolution.  By that, we mean who said what or did what and what consequences properly flow from such findings.

	It may therefore be thought that since the question as to whether or not an employer is in fundamental breach of contract is essentially one of fact, there is nothing amiss in remitting that question to the original Industrial Tribunal following a successful appeal.  We are not entirely convinced.

	One of the complaints made by Mr Sheldon on behalf of the Appellant in the instant appeal is that rather than follow the EAT’s direction given by Judge Levy, this Industrial Tribunal has sought to justify its earlier decision.

	Without limiting the grounds of appeal on which this matter should, in our judgment, proceed to a full hearing, we wish to highlight this aspect of the matter.  In what circumstances should this Appeal Tribunal remit a case for rehearing by the same Industrial Tribunal?  Having remitted a case to the same Industrial Tribunal what are the duties of that Industrial Tribunal when considering the matter on remission?  Specifically, has this Industrial Tribunal fallen into error by, effectively, seeking to correct the approach of the EAT?

	It seems to us that these are matters of general importance which ought to be considered by the President in case he should see fit to issue any general guidance on the questions raised.  For that purpose we shall direct that the matter proceed to a full hearing, to be listed before the President for half a day.  That time estimate is based solely on the Appellant’s estimate.  If the Respondent wishes to appear and make oral representations it may be that the parties will see fit to provide a revised time estimate to the Registrar as early as possible.

	There shall be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing, copies of those skeleton arguments to be lodged at the same time with this Tribunal.  There are no further directions.