MRS M M CRIBB v MR & MRS G RAYNER [1999] UKEAT 181_99_1905
[1]APPEARANCES For the Appellant MR CRIBB (HUSBAND OF APPELLANT) HIS HONOUR JUDGE PETER CLARK: This is an Appeal by Mrs Cribb, the Applicant before the Stratford Employment Tribunal sitting on 7 th May and 16 th October 1998 against that Tribunal's decision promulgated with extended reasons on 4 th December 1998 pursuant to a Certificate of Correction dated 7 th January 1999, dismissing her complaint of unfair constructive dismissal brought against the Respondent Employers, Mr & Mrs Rayner. The Tribunal found that there was no dismissal. The Appellant was employed by the Respondents as a book-keeper from 22 nd August 1991 until her resignation by letter dated 8 th October 1997 effective on 10 th October. A curious feature of this case is that the Appellant, on whom the onus lay to establish dismissal by the Respondents did not give evidence on her on behalf. Instead, her husband Mr Cribb, who conducted the case on her behalf, alone gave evidence. The Respondents' evidence came from Mr Rayner and Mr Neale, the Accountant to the business.[2]The Appellant contended that the Respondents were in repudiatory breach of contract by(1) questioning her competence;(2) questioning her honesty;(3) unilaterally altering the terms of her Contract of Employment. The Tribunal rejected the claim that the first two matters of complaint breached the implied term of mutual trust and confidence on the facts as they found them. They concluded that in notifying the Appellant of the change in hours the Respondents were not in breach of contract. As to a change in her rate of pay, the Tribunal found that any breach of contract was not fundamental entitling the Appellant to treat herself as discharged. Further and alternatively, in the absence of evidence from the Appellant herself the Tribunal was not satisfied that she left the employment in response to the alleged breaches of contract. On those grounds the claim was dismissed.[3]In this Appeal Mr Cribb has effectively sought to re-submit the arguments which he placed before the Employment Tribunal. In summary, he draws attention to a letter written by Mr Rayner dated 19 th September 1997 and submits that the use of expressions such as "It's time to bring you in line" were entirely inappropriate for an appellant of this standing; that the Appellant had brought her work up to date by the time that she left; that the Employer was unilaterally reducing her hours of work from 37½ to 21; that the Appellant's pay rate was reduced and that earlier, in the course of the dispute which arose between the parties, the Employer had wrongly imputed dishonesty to the Appellant and unfairly accused her of incompetence in and about her duties.[4]Those were all matters which were before the Employment Tribunal and are dealt with in their findings of fact and conclusions. It seems to us that the question of whether or not an employer is in breach of a contract of employment and if so, whether that breach is fundamental, is essentially a question of fact for the Employment Tribunal. Our jurisdiction is limited to interfering with errors of law. It is only if it can be properly said that the Tribunal has reached a perverse conclusion as that terms has been explained by Mr Justice Mummery in Stuart –v- Cleveland Guest Engineering Ltd [1994] IRLR 440 page 443 that we can interfere.[5]Having considered the submissions made by Mr Cribb and the way in which the Employment Tribunal dealt with the matter, given the difficulty which arose as a result of the Appellant herself not giving evidence, we are unable to say that this Appeal raises any arguable point of law based on the perversity ground. In these circumstances, the Appeal must be dismissed.