Hawkins v Thames Cleaning [1997] UKEAT 297_96_2701

EAT
Hawkins v Thames Cleaning
[1997] UKEAT 297_96_2701 · 1996-10-16

JUDGE BYRT QC :

This is an appeal against the decision of an Industrial Tribunal sitting at Stratford on the 13th December 1995 when it unanimously dismissed the claim of the Applicant (now the Appellant) for unfair dismissal and redundancy.The Appellant was a cleaner employed by CHS Environmental Services Ltd. Her allotted task, along with some 30 others employed in the same capacity, was to clean daily the office premises of a large firm of solicitors situated in the City of London. In 1995, CHS lost the contract for this particular client, the successful tenderer being the Respondents, Thames Cleaning Co. Ltd. The latter took over the cleaning contract as from the 28th July 1995. The Industrial Tribunal found as a fact that this take over constituted a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 1981 and so, in the ordinary course of events the Appellant would automatically become employed by the transferer, the Respondents. Though the latter, by their Notice of Appearance, initially challenged the Appellant's transfer of employment, the Respondents have not appealed that part of the Tribunal's decision.When it became apparent that the Respondents would be taking over the cleaning work for this client, Mr Beach, the Respondents' Development Director at that time, held a number of meetings with the cleaners who had hitherto been carrying out the cleaning work. He spelt out the new terms upon which these same cleaners would, if they chose, be expected to carry out that work. Although the Industrial Tribunal made no specific finding as to this, it is, in our view, implicit in their Reasons, and not disputed by the Respondents before us, that the new proffered terms amounted to a fundamental change in the contract such that the Appellant would be entitled to reject them should she so choose.In paragraph 1 of their Reasons, the Tribunal set out the Respondents' case that they asked all the ex-employees of CHS to apply for positions with themselves as they had vacancies "in a number of major contracts throughout the South East" where the salary levels would match the amount previously earned by the Appellant if she was dissatisfied with the new terms being offered. In paragraph 2, the Tribunal record that Mr Beach's offer included full-time employment "at other offices in the City of London".The Appellant's case, supported by her witnesses, was that Mr Beach had no alternative jobs to offer, but, in coming to their findings, the Industrial Tribunal clearly preferred the evidence of the Respondents and rejected that of the Appellant on this point. In paragraph 5, the Tribunal states:
"What we do find is that there were meetings at which the terms of the new contract were explained to the staff, and that it was made clear at these meetings that those who were not prepared to accept the reduced hours of work which the Respondents were offering at this contract, could have the opportunity of transferring to other work which the Respondents offered them and which would be either nights or day for periods of 40 hours. We find that it was made plain to the staff that these positions were available."
That is a finding of fact which is not for us to disturb unless it is perverse.The Appellant, then says that in response to the Respondents' invitation, she forwarded a written application, based on a printed form provided by the Respondents, and dated it the 5th July. The Respondents say they never received it. Mrs Hunn, who worked at the site of the contract from early July as the Respondents' representative, said she had no knowledge of the Appellant's application nor had she been approached by the Appellant about a job. The Tribunal found, as a fact, that the Appellant never made any effort to follow up her application or any other attempt to respond to the Respondents' invitation to take up one of the alternative jobs available to her. They found that the Appellant simply walked out and obtained a new job without telling them. The fact that the transfer took place on the 28th July, her new job was confirmed on the 31st July and she started work with her new employers on the 7th August lends credence to this finding of the Tribunal.On those findings of fact, the Tribunal declined to find that the Appellant had left her new employers because of an express or implied dismissal or by reason of any acceptance of a repudiatory breach of her terms of employment. Again, those findings are of mixed law and fact.The Appellant's case is that, having unilaterally altered the terms of her original contract of employment, the Respondent never redressed the situation by coming up with the offer of a suitable alternative job, and in consequence all that she was left with was a repudiatory breach of the contract she had, and she accepted that repudiation. Mr Brick, who has argued the case on the Appellant's behalf, says that the offer of the alternative job has to be sufficiently precise and specific to be capable of immediate acceptance: see Curling & Others v Securicor Ltd [1992] IRLR 549 . He says the Respondents never came up with such an offer, and the Tribunal's finding that they did, is flawed.Mr Brick further submitted that the Tribunal was once more in error in saying, in effect, that the burden fell upon the Appellant to chase up her application.Mr Willers, for the Respondents, has courteously but quite firmly reminded us that the salient findings of the Tribunal, referred to above, are findings of fact or of mixed fact and law, and should not therefore be interfered with by us. He too referred us to the case of Curling (Supra) to confirm that the issue whether the employer had offered alternative employment is one of fact. Likewise, the issue whether the Appellant resigned or was dismissed. He says that if there was some evidence upon which the Tribunal could base its conclusion in each instance, there is no ground for this Tribunal to intervene.After much careful consideration, we accept Mr Willer's submission. It has to be accepted that the offer of alternative employment and the issue of resignation or dismissal must be questions of mixed law and fact. We cannot disturb the Tribunal's conclusions so long as there is some evidence upon which they could base them. We did not hear the evidence of Mr Beach or Mrs Hunn, nor do we have the Chairman's notes of what they said. In those circumstances, it is well nigh impossible for us to challenge the Tribunal's findings and we do not propose to do so. That is sufficient to determine this appeal.We believe the Industrial Tribunal approached this case as they should, namely as an industrial jury. Notwithstanding their finding that the Respondents' offer of alternative employment was genuine and sufficiently specific, we think they concluded that the Appellant did not pursue her application sufficiently vigorously to satisfy herself that the offer was genuine or otherwise. Instead she lost interest in her application and went, quite freely, for another job. Hence their finding that she resigned.In the circumstances, we dismiss the appeal.