MR MORTON v SANDWELL TRAINING ASSOCIATION [1999] UKEAT 362_99_0707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 362_99_0707Case No Appeal No. EAT/362/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR MORTONAPPELLANTSANDWELL TRAINING ASSOCIATIONRESPONDENT
Before
His Honour Judge H Wilson Mr B M WarmanLord Davies of CoityDate 7 July 1999
[1]APPEARANCES For the Appellant MR C W WILSON (Representative) Oakdene Management Consultancy Services Oakdene House 45 Orchard Road Endington Birmingham B24 9JB JUDGE WILSON: This hearing today has been a preliminary hearing to examine the grounds and merits of the appeal which the original Applicant, Mr Morton, seeks to bring against the decision of the Employment Tribunal that he was not unfairly dismissal. The facts may be briefly stated. The original Applicant, Mr Morton, worked for a number of years for the Providence Training Scheme Ltd. There came a time when that concern was taken over by the Respondent, the Sandwell Training Association. When it was taken over, in common with other employees, Mr Morton received a letter saying that his employment would be continued on the same conditions and terms until further notice.[2]After having taken over, there were meetings, and proposals were tabled to change the conditions enjoyed not only by Mr Morton, but certainly by two other witnesses who gave evidence on his behalf: Mr Havins and Mr Parkes. There was apparently a meeting at which Mr Havins and Mr Parkes were present when the phrase "not negotiable" was used, Mr Morton apparently took that to refer to the proposals for change generally. The phrase was however used in relation to changes in the management structure. That was the Respondent's evidence and it was corroborated by Mr Morton's own witnesses, Mr Havins and Mr Parkes.[3]The other changes concerned the date of payment of salary, which was changed without consultation; the proposal to increase weekly hours worked by two; and the discontinuance of paying private mileage for the Applicant's company car, and the refusal to supply a laptop computer.[4]So far as the change of date of payment of salary was concerned, in paragraph 9 of its decision, the Tribunal stated that it regarded it as inconsequential:
"We accept that the lack of consultation was an oversight, and the Respondent did offer to make provision for any employee who suffered as a result of the change. It does not, therefore, constitute a fundamental breach of the Applicant's contract of employment."
So far as this Tribunal is concerned, that is a finding of fact and a conclusion from it which it was open to the Tribunal reasonably to reach.[5]With regard to the other matters, the Tribunal observed in paragraph 10 that they might well, or could be a basis for constructive dismissal. They however did not accept Mr Morton's evidence that the phrase "not negotiable" related to them. This is dealt with in paragraph 11 of the Tribunal's decision:
"It is the Applicant's evidence that these changes were to be forced upon him. Again, the evidence of Mr Havins and Mr Parkes, who were asked to consider the same changes, is that none of the changes had, at the date of the hearing, been forced upon them. Indeed, at the date of the hearing which was 18 November 1998, some months later, they were still working to their old terms and conditions and it had apparently been made clear to them by Mr Trim and Mr Hollyoak that any changes were a matter for negotiation. Coupled with the evidence of the Respondent it seems clear to the Tribunal that the Applicant's view is totally misfounded, and based more on the gossip and conjecture he referred to in his evidence that to the reality of the situation."
The Tribunal's conclusion is summarised in paragraph 12:
"For these reasons, on the issue of whether the respondent's conduct amounted to a fundamental breach of the applicant's Contract of Employment, we find that it did not. We prefer the evidence of the respondent, as corroborated by Mr Havins and Mr Parkes, and consider it to be more reliable and accurate than that of the applicant."
[6]We need go no further. Those are findings of fact and conclusions drawn from them, which it was perfectly open to the Tribunal, properly directing itself, as it had done earlier in its decision in paragraph 5, to reach.[7]The fact that they went on to say that even if the Respondent's conduct had amounted to a fundamental breach, the Tribunal would not find that is caused the Applicant to resign, is not material to the decision as found. It was just an observation expressed in the light of other evidence to do with the Applicant's having obtained other employment before the moment he handed in his letter of resignation.[8]In our view this appeal has no reasonable prospect of success and must be dismissed.