Barrows v The Post Office [1997] UKEAT 1330_96_1604

EAT
Barrows v The Post Office
[1997] UKEAT 1330_96_1604 · 1997-04-16

JUDGE D M LEVY QC :

Mr Paul John Barrows wishes to appeal from a decision of an Industrial Tribunal held at Stratford on 20 September 1996, when he appeared in person and the Post Office, the Respondent to his application and to this appeal, was represented by Counsel.On that occasion the Industrial Tribunal determined that he had not been dismissed by the Post Office within the meaning of section 95 of the Employment Rights Act 1996 , but had terminated the contract of employment by his resignation. They held that the effective date of termination was 19 February 1996 and they gave leave to the Respondents to amend the Notice of Appearance in the form of a draft presented to the Tribunal. The decision of the Tribunal was sent to the parties on 22 October 1996.The dispute between Mr Barrows and the Post Office appears to have been this. There were disciplinary enquiries which involved Mr Burrows which were held by the Post Office. At the end of those enquiries it was determined by the Post Office that Mr Barrows could not continue to work in the offices which he had worked at Southend, but could be offered a different job in St Albans. Mr Barrows, who lived apparently in Southend, did not feel it appropriate for him to travel from Stratford to Southend where the different job was available for him.The grounds on which the Notice of Appeal says that Mr Barrows wishes to appeal are these:
"1. In finding that the Respondent was not in breach of contract in requiring the Appellant to work 5 miles away from home when the mobility clause in the contract provided (inter alia) that the obligations to work elsewhere than the initial place of employment would be implemented in accordance with Post Office rules and the Tribunal gave no consideration or no apparent consideration to such rules.
2. Further or in the alternative that no reasonable Tribunal, on the evidence available, could have reached the conclusion that it was possible for the Appellant to travel from Southend on Sea to St Albans on a daily basis during the busiest times of the day.3. Further or in the alternative in permitting the Respondent to amend its notice of appearance on the morning of the hearing to allege a new ground, namely that the Appellant had resigned his employment and yet not giving the Appellant the opportunity of a postponement to take advice."Those are the three grounds mentioned in the Notice of Appeal. So far as the last of these grounds there is no evidence that Mr Barrows was not given the opportunity to consider the amendment and indeed, it quite frequently happens at the time of the hearing an amendment is made. If there is to be an allegation that something improper happened, that has to be supported by affidavit and that has not happened here.As to the other two grounds, it is apparent from reading the Extended Reasons of the Industrial Tribunals, that they were well aware of the factual issues which divided the parties and they considered that, given the history which had taken place between them, it was practical, possible and no breach of any of the rules for Mr Barrows to be offered different employment at St. Albans, rather than in Southend.Paragraph 9 of the Reasons says:
"The unanimous view of the Tribunal is that when Mr Barrows declined to attend at St Albans and refused to work there that he thereby resigned his employment with the Respondents who were in law, entitled to ask of him what they did."
In our judgment, having heard the evidence, this is a decision that the Tribunal of fact was entitled to reach. Nobody has attended to argue otherwise on Mr Barrows' behalf this morning. We have had letters from him and from Solicitors saying they were not going to attend on this ex parte application.In our judgment, the proper course now to take is to dismiss this appeal at this stage.