Appeal No. EAT/0387/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 June 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MRS J M MATTHIAS

BARCHESTER HEALTHCARE PLC	APPELLANT

MR S JIMMISON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S H MOON
Representative

		

JUDGE PETER CLARK

1.	The question in this appeal, brought by the Respondent employer before the Reading Employment Tribunal, Barchester Healthcare Plc, against that Employment Tribunal’s decision promulgated with Extended Reasons on 30 January 2001, is whether the Employment Tribunal was entitled to conclude that the Applicant, Mr Jimmison had been constructively dismissed.  If so, there is no appeal against the Employment Tribunal’s further findings that the dismissal was unfair or as to the assessment of compensation due to the Applicant for unfair dismissal.

2.	The Employment Tribunal found that the Applicant commenced employment with the Respondent as a domestic assistant at their Chalfont Lodge Nursing Home on 30 April 1999.  In August 1999 he was promoted to supervisor.

3.	On 17 January 2000 the Hotel Services Manager resigned.  The Applicant and a waiter both applied for that now vacant post.  Neither was thought capable of taking on that role but Mrs Dannfald, a director of the Respondent, appointed the Applicant as Ancillary Services Manager and the waiter as Restaurant supervisor.  Both reported to the director until such time as a new Hotel Services Manager was appointed.
 
4.	That post was eventually filled by Mrs Judy Naylor on 7 June 2000.

5.	Whilst the Applicant was on holiday in July 2000 both Mrs Dannfald and Mrs Naylor became concerned over the Applicant’s performance in relation to the laundry and room cleaning operations.  It emerged that the ordering of materials had not been properly carried out.  His explanation for these matters in evidence to the Employment Tribunal was that he had been put on driving duties for 5 weeks prior to his holiday, so that his time available to devote to the laundry and other matters had been restricted.

6.	On his return from holiday on 18 July Mrs Dannfald told the Applicant that she wanted him to concentrate on the laundry, due to complaints having been received, until that operation returned to a good standard.

7.	Unhappy at this he spoke to Mrs Naylor later that morning about his duties.  At about 11.30 am a further meeting took place between the Applicant, Mrs Naylor and Mrs Dannfald.  The Applicant was under the impression that he was to be in the laundry full-time, but Mrs Dannfald reinforced management’s view that it was a temporary assignment until the laundry was performing efficiently.

8.	There was an issue of fact before the Employment Tribunal.  The Applicant maintained that Mrs Naylor said they wanted a full-time laundry supervisor and Mrs Dannfald said that if that was the only available position that was all there was for the Applicant.  Mrs Dannfald, in evidence, could not remember making that remark; Mrs Naylor was not called to give evidence.

9.	The Applicant resigned.  He contended that Mrs Naylor had taken over all his duties; the offer of full-time laundry supervisor would be a step backwards.

10.	In argument, Mr Moon for the Respondent conceded that if what the Applicant had said in evidence was true and there had been a permanent demotion, that was likely to amount to a constructive dismissal.  However, he submitted that the Applicant had only been temporarily assigned to laundry duties; that was a legitimate exercise of management discretion.  Alternatively any demotion was temporary and did not amount to a repudiatory breach of the contract of employment.

11.	The Employment Tribunal at paragraph 21 of their reasons preferred the Applicant’s evidence, in the context of the erosion of his duties following the meeting of 18 July.  They record that he effectively lost responsibility for handling disciplinary matters, his duties of delegation to staff were taken away as was the preparation of shift rostas and his responsibility for interviewing for vacant staff positions was removed from him.  He was de facto demoted, although his pay remained the same.

12.	In short, the Employment Tribunal found his position as Ancillary Services Manager had been so eroded and undermined as to constitute a fundamental breach of the contract of employment entitling him to resign and treat himself as constructively dismissed.

13.	In this appeal Mr Moon submits that the Employment Tribunal has failed to make a material finding of fact based on the real issue before them, that is whether the Applicant’s assignment to laundry duties on 18 July was a permanent or temporary change.

14.	He further argues that the Employment Tribunal made no distinction, although such a distinction arose in the evidence of Mrs Dannfald, between duties which were removed from the Applicant upon Mrs Naylor’s appointment on 7 June, as to which no complaint was made and those removed on 18 July.

15.	He contends that the Employment Tribunal were wrong at paragraph 22 of their reasons to regard this as a disciplinary matter.  He submits that the Respondent in the absence of clear findings by the Employment Tribunal does not know why it has won or in this case lost.  See Meek v City of Birmingham District Council [1987] IRLR 250.

16.	Finally, he submits that the decision was perverse in the legal sense.  We have carefully considered those submissions and it seems to us that the critical question is whether reading the Employment Tribunal’s reasons as a whole we are able to discern a finding by the Employment Tribunal as to whether or not the move to laundry duties on 18 July was permanent or temporary.  

17.	We think that we can.  The issue raised by Mr Moon on behalf of the Respondent is clearly identified by the Employment Tribunal at paragraph 14 of their reasons and we have little doubt that it was at the forefront of their minds.

18.	We think that a combination of findings in paragraphs 12, 20, 21 and 22 of the reasons amounts to this, that the Applicant’s case that he was told that he would be working full-time in the laundry as supervisor was accepted by the Employment Tribunal.

19.	We think that the expression full-time was used by the Employment Tribunal as shorthand for not only being his full-time duty but also full-time in the sense of being permanent as opposed to a temporary assignment.  This we think emerges from paragraph 12 of the reasons.

20.	In these circumstances we think that the concession made by Mr Moon quite properly below that if there had been a permanent demotion, as was the Applicant’s case, then it was likely to be a constructive dismissal, the only proper way of reading this Employment Tribunal’s reasons in our judgement is to the effect that the Applicant’s case on this point was accepted and accordingly they found that he was constructively dismissed when he resigned from the employment.

21.	The question as to whether or not an employer is in breach of contract and if so whether that breach is repudiatory is essentially one of fact for the Employment Tribunal – see Pederson v London Borough of Camden [1981] ICR 674.  Having satisfied ourselves that that is the finding of the Employment Tribunal we can see no grounds in law for interfering with that conclusion.  Accordingly this appeal must be dismissed.