MR D L ROACH v APCOA PARKING (UK) LTD [2002] UKEAT 0719_00_0503

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0719_00_0503

Case No Appeal No. EAT/0719/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D L ROACHAPPELLANT

APCOA PARKING (UK) LTDRESPONDENT

Before

Mr Justice Lindsay

Date 5 March 2002

[1]APPEARANCES For the Appellant MR JOHN FALKENSTEIN (Of Counsel) Instructed by: Messrs Stuart Cohen & Mae Solicitors 207 City Road Cardiff CF24 3JD For the Respondent NO ATTENDANCE BY OR ON BEHALF OF RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a full hearing the appeal of Mr D L Roach in the matter Roach v APCOA Parking (UK) Ltd . Today Mr Roach has been represented by Mr Falkenstein. No-one appears for APCOA, which is a matter which will come on to. It is rather depressing that at this full hearing very little seems to have happened since the adjourned full hearing that was before us almost a year ago, on 12 March 2001.

[2]The chronology is that on 11 November 1999 Mr Roach put in an IT1 for constructive dismissal. He had been a car parking supervisor from 1996 to 1999. He said that he worked a 60 hour week. There had been a TUPE transfer from his previous employment to APCOA. He said that his hours had been reduced by 20 a week and he claimed that he was £4000 a year worse off. He said:

"My resignation came about when the management of Apcoa Parking stated that my previous contract no longer existed and if I did not fill in an application to apply for my position I would not be given employment. To fill in such an application form would have forfeited my previous contract and my continuous employment history. I asked for and was refused redundancy, despite my previous contract manager being offered £5,500.00. I therefore wish to pursue a claim of constructive dismissal."

On 2 December 2001 there was an IT3 from APCOA and they said:

"Prior to the transfer [still TUPE transfer] the Respondents visited the site at which the Applicant worked and advised him of the transfer and the arrangements they were to put in place as a result. At this time the Applicant was advised that he would not in future be requested to work up to 60 hours a week as he had by Sureways Parking [that was the company that was the previous employer] and that to compensate for this his hourly rate would be increased from £4 per hour to £4.60. The Applicant at this time indicated he was agreeable to this and would not refuse to transfer."

And then a little later it said:

"The Respondents contend that there was no breach of contract which entitled the Applicant to resign and claim constructive dismissal. The amendments made as a result of the transfer were fully explained to the applicant prior to the transfer and brought his terms and conditions within the Working Time Regulations. In recognition of these alterations his hourly rate was increased and he accepted this. The Applicant cites his altered hours and "de-skilling" as the basis for his resignation. We submit that after only 3 days he was carrying out the same work at the same location, and was declining to work additional hours, yet in receipt of an additional 60p [I think it is] per hour. Under the circumstances there was no breach of his terms and conditions which amount to a substantial breach requiring that he resign and seek to claim constructive dismissal."

The IT3 does not mention an offer of overtime or overtime rates.

[3]On 15 February 2001 there was a hearing before the Employment Tribunal at Cardiff. On 22 February the Employment Tribunal gave its summary reasons. On 3 May the Decision was sent to the parties with Extended Reasons. It was the Decision of the Tribunal under the Chairmanship of Dr Davies and the Decision was unanimous and was:

"The unanimous decision of the Tribunal is that unfair constructive dismissal is not established."

[4]On 7 June Mr Roach put in a Notice of Appeal. On 25 October 2001 there was a Preliminary Hearing at the Employment Appeal Tribunal sitting under his Honour Judge Reid QC and a number of points were then made. The Tribunal ordered that the appeal would be allowed to proceed to a full hearing. They directed that the learned Chairman be asked to provide her notes of evidence and a point was taken in paragraph 11 of the judgment delivered on that Preliminary Hearing. The learned judge says:

"Essentially, we take the view that the attack that can perhaps be properly mounted, is more on the findings of fact which are inconsistent on their face and which do not appear to tie in with what appears to have been the evidence."

The order directed that Chairman's notes of evidence be provided.

[5]The matter then came to a full hearing on 12 March 2001 here in Cardiff and the appeal was adjourned. We set out on that day that Chairman's notes had been requested and the judgment of that day, which was delivered by me, included this at paragraph 4:

"By 2 letters the Employment Appeal Tribunal made a request for the Chairman's notes. On 17 January 2000 the Employment Tribunal, by the Regional Secretary, wrote back a letter that began: "

Thank you for your letters of 13 December 2000 and 11 January 2001. These have been referred to the Chairman and I have been directed to reply as follows: We regret that we have been unable to find the missing file and so cannot provide full notes of evidence as requested. I apologise for the delay in responding to your letter of 13 December, but the Chairman has been absence due to sickness and was not available to recall any details of the case." And it continued:- "She is now back at work" And then the letter goes on to give recollections of the Chairman. The words "recollection" and "recall" are frequently used in the rest of the letter. We said in our paragraph 6 on that day a year ago:

"For all that, it seems to us that the evidence given below is going to play a significant role in the determination of the full hearing and we are not content to go forward on the basis of the letter of 17 January."

We said:

"We were invited to proceed on the basis that the one and a half pages of the letter of 17 January 2000, including recollections of memories second hand from the Regional Secretary on behalf of the Chairman, were, in effect, a Chairman's note, although manifestly they are nothing like Chairman's notes of evidence."

[6]So we had the problem of what is one to do when Chairman's notes have been requested and when they cannot be supplied and we gave directions as to compilation by the parties of the best possible note of evidence, recognising, as we have already cited, that we thought that the evidence given was going to play a significant role. We gave directions for the parties to co-operate by each giving their own sequential best recollections with a view to the papers then being sent to the Chairman who would be able to add or subtract as her memory required. We said in our paragraph 9:

"The object of the exercise, plainly, is that when the matter is restored for a full hearing the best objective account, composed from the memories of all those who were there either as parties or as a Tribunal itself, should be available at the full hearing."

[7]What happened was that Mr Roach then set out his version of events on 26 March 2001. It did not truly follow the pattern we had hoped would be adopted but he made a number of points. He said, of the day of the hearing:

"The Chairwoman then asked me several questions to clarify the evidence that I had earlier given. One of the questions was that I had accepted the change in conditions by accepting the new rate of pay. This rate of pay was admittedly higher than my existing rate but as I worked longer hours at a lesser rate, my existing conditions were better. I explained that I had asked for redundancy as I could not support my family on the new rate and the implications of the proposed reduction in take home pay. I also made it clear that I was faced with a decision that I could not resign. The Chairwoman said my reasons were superfluous as I had accepted the change in hours by continuing to work for APCOA albeit for a short period of time."

A little later he says in paragraph 8:

"I asked him [that is Mr Ferris of APCOA] to confirm that he had said 'I either sign the new application form or I would be out of a job'. He replied it was company policy to have all employees sign an application form so that their details were recorded. At this point the Chairwoman interrupted and said I was deliberately being difficult and that I could have come to some arrangement with APCOA by deleting parts of the application form."

In his paragraph 10 he says this:

"The Chairwoman asked me to sum up my complaint and I said that my existing conditions should have been transferred automatically under the provisions of TUPE, as it had been on several previous occasions. The transfer should have preserved my existing conditions and that I should have been advised of any potential alterations in advance and in writing. I also referred to the budget calculations of APCOA for running the new contract and said that it is clear from the calculations that it only provided for two employees and accordingly I felt that APCOA had no intention of honouring the transfer of my employment or my existing contract."

In his paragraph he says:

"He [that is Mr Aghovia on behalf of APCOA] did not address the point that I would have suffered a significant drop in income if I had remained in the employment of APCOA."

Mr Ferris of APCOA said on 19 March as follows:

"Further to the above order made on myself to reconstruct the evidence of the original tribunal, which I cannot recall with any accuracy, evidence or cross-examination made at the time by either the chairman or his lay associates. I have been unable to find any notes, which my representative or I made during the tribunal and have little recall of events or words used after such a long period. Regrettably I am unable to assist in complying with the direction given and trust that the Employment Tribunal understands and respects my position."

[8]One of the two lay members, Mr P F Harris, wrote on 16 August. He said this:

"I would confirm again that I have no written record of the retrial proceedings (20 months ago!). My recollection of the day extend to the fact, that it was a normal hearing conducted in a very normal manner and went without incident. Beyond the above, I'm sorry to say and record that I can be of no further assistance in this matter."

The other lay representative, Mr A Blunt, wrote on 18 August 2001, seeming to refer to the Chairman's reaction to Mr Roach's note, by saying this:

"I have read Mr Roach's 26 March statement and the proceedings he describes do not square with what I know to be the general practice of the ET. Like the Chairman I am unable to disentangle the truth from the statement. Mr Roach's statement has jogged my memory as to one point – para 2 – the Chairman certainly asked Mr Roach to paginate future bundles and gave the reasons – so that all participants know they are reading the same document."

[9]Then on 18 September the Chairman gave her comments. She says:

"The applicant's recollection dated 21 March 2001 is so littered with false perceptions and fabrications that I have had difficulty in extracting the elements of truth. She says later of some queries: "

Those queries included a query of Mr Roach by me as to whether his complaint of constructive dismissal was based on the proposed changes in calculation of pay and hours, or the request that he sign the "application for employment form", or both. The question was carefully put to him twice, to ensure that he understood its significance. It was explained to him that the object was to identify the relevant issues and that in order to establish constructive dismissal he would need to show breach of a fundamental term of the contract of employment, and that that breach was the cause of his resignation. His reply was that the reason for his resignation was the request that he sign the form, and it was that request which was the basis of his complaint of constructive dismissal. He said the reason for his resignation was not the proposed changes in calculation of pay and hours, and that this was not the basis of his complaint. His evidence was that he accepted the changes in calculation. In the sixth paragraph of his evidential statement he says that he "conceded" the changes, and in the seventh paragraph he says "I agreed to say …". He confirmed this firmly in his response to my questioning." And a little later she says:

"The fact is that Mr Roach was not complaining to the tribunal that his job description was altered and that he was £4000 worse off. There was reference to an alleged £4000 differential in the Originating Application and in the second paragraph of the evidential statement, and it was for this reason that I was careful to ascertain whether it formed part of the complaint. Mr Roach was firm in his reply that it did not, and that it was merely part of the background history. The apparent differential on the basis of an asserted £12,480 per annum for a 48 hour week would, if proven, have been £998.40 not £4,000, but as this was not the cause of the resignation, it was not relevant to the tribunal's decision as to whether he had been constructively dismissed. If it had been we would have dealt with it fully in the Reasons. The tribunal was of the view that lines 6 to 10 of paragraph 9 of the Reasons were sufficiently explanatory of a matter which, on Mr Roach's own explanation as to the basis of his case, did not contribute to the decision."

[10]So, by that time there were various versions of what had occurred at the original hearing. On 4 October 2001 Mr Roach's solicitors indicated that they had reservations about the Chairman's comments and asked that those Chairman's comments to be excluded. On 11 October 2001 Mr Ferris found after all that he did have a memory of the Employment Tribunal's decision and he concurred with the Chairman's comments.

[11]With that background to the procedure which has been followed we turn to the Employment Tribunal's decision and the Extended Reasons. The Tribunal, so far as concerned Mr Roach's newly negotiated contract with APCOA after the TUPE transfer, found this (with our emphasis):- "On Monday 1 November Mr Roach expressed dissatisfaction with the new regime and the reduced hours but was offered, and accepted, a pay increase to £4.60 per hour so that there was no loss of income . He agreed to continue working for the new employers on those terms ."

[12]So it appears from that that, as part of the terms that were then agreed by way of a new contract between Mr Roach and APCOA, there was agreement that there would be no loss of income. The Employment Tribunal, though, held that he did not complain of that fact. The Tribunal below said:

"He does not complain as to the change in hours and pay and had he done so we would have found that there was no breach of any fundamental term in this respect and that he agreed to work fewer hours for more money so that his income remained the same, and we can see no breach of contract here."

APCOA's own evidence had been:

"He hoped to bring them in line with the respondents' other staff throughout the UK who operated on a 40-hour week. He [that is Mr Ferris of APCOA] suggested that he should reduce the working hours but increase the hourly rate in line with that of other staff at other sites, so that there would be no loss of income."

[13]The position had been that Mr Roach had indeed complained in his IT1 of the reduction in salary. Of course, it could be that he retracted from that in oral evidence but we have no way of examining the Chairman's notes to find out whether that was the case. It is no fault of Mr Roach that there are no Chairman's notes of evidence available and the passage "had he done so we would have found that there was no breach of any fundamental term" is entirely puzzling as a change from 60 hours per week to 40 is not compensated for by a change from £4.00 to £4.60. Other terms may have been agreed such as overtime and overtime rates but they are not set out in the Tribunal's decision.

[14]Given that there was a complaint in the IT1 as to loss of salary, given that the fact that under TUPE the previous terms of employment would continue unless new terms were specifically agreed (so that the onus would have been on APCOA to prove new terms), given that the new terms apparently included: "so that there was no loss of income" but given that, at any rate on the mathematics as the Tribunal itself sets them out, there manifestly would have been a loss of income and given that there were no Chairman's notes available, the only safe conclusion, in the absence of Chairman's notes and in the absence, as it now transpires, of an agreed substitute for them, is that we must proceed on the basis that there was some misunderstanding going that explained the curious approach of the Employment Tribunal on the arithmetic of the case.

[15]But that is not the only matter as to which the Employment Tribunal is vulnerable. The Employment Tribunal in its paragraph 7 says:

"In a constructive dismissal case the burden is on the applicant to show that the respondents' conduct constituted breach of a fundamental term of the contract of employment and rendered his situation so intolerable that he could not reasonably be expected to continue working for them. He must show that the breach was the direct cause of his departure. He must leave with reasonable speed if he intends arguing that his situation was intolerable but is normally expected to give the employer an opportunity to address his concerns and to remedy the situation."

[16]We cannot accept that as an accurate summary of the law in relation to constructive dismissal. If there has been a fundamental breach of contract by the employer the employee can accept that as a repudiation of the contract by the employer and treat himself as if dismissed without any further need either to prove that his situation had become so intolerable that he could not reasonably be expected to continue to work for that employer or to give the employer an opportunity to remedy the situation. Of course, if he does prove each of those then his case would be even stronger but it is no necessary part of constructive dismissal that those further ingredients should be proven. To that extent the Employment Tribunal misdirected itself on the law as to constructive dismissal.

[17]The Tribunal held ultimately:

"There has been no breach of any fundamental term of contract of employment. Mr Roach resigned of his own accord. Having regard to those findings we conclude that constructive dismissal is not established. The application is dismissed."

But, if, as the Employment Tribunal held, part of the new terms of employment were that there would be no loss of income and if the pay went up from £4.00 to £4.60 but the hours went down to from 60 per week to 40 a week, it is impossible to see that there would not have been a fundamental breach. The issue of whether or not at the hearing Mr Roach still complained of it is a different issue as to which, in the absence of Chairman's notes as we have mentioned, we can only conclude that there was a serious misunderstanding.

[18]We therefore come back to the Tribunal's view of constructive dismissal. We hold the Tribunal to have erred in law. It misdirected itself as to constructive dismissal. It fails to explain how, in its view, there was not a fundamental breach of contract and it has disabled itself from fully explaining itself by reference to Chairman's notes because the Chairman's notes have been lost as part of the loss of the file.

[19]We gave directions a year ago for the constitution of an alternative bundle and unhappily that has come to nothing. Accordingly, recognising the error of law that we have described, we set aside the Decision and we remit the whole Originating Application to be heard afresh by a different Tribunal. We mentioned at the outset that no-one represented APCOA today. We did have a letter from APCOA explaining that Mr Ferris of APCOA could not attend today and that he asked for an adjournment. The position is that on 25 February 2002 he was ordered by his GP to take 2 weeks off work. He has, it seems, Carpal Tunnel syndrome which affects his wrists and also had been suffering from Vertigo. But we have to remember that APCOA is a company of some size. It is not some small local company. It has an office in Wales and a head office in Middlesex. It is difficult to believe that no-one else could have attended to argue on its behalf. I am sure that Mr Ferris is more familiar with the facts of the case than other directors are likely to be but we are only concerned here with points of law and we have no reason to think that APCOA could not have arranged for adequate representation either by another director or officer of APCOA or by a Solicitor or Counsel. In any event Mr Ferris put in a written Skeleton Arguments which mainly give rise to allegations of fact which, had they been given in evidence below (which is said to be the case) could have led to a finding in APCOA's favour. Certainly that could have been the outcome had they been given in evidence which had been accepted by the Tribunal. However, in the absence of Chairman's notes we cannot come to any view on that. But, coming back to the position of Mr Ferris, we did not see it as leading to a yet further adjournment of a matter which has already been comprehensively adjourned in the past and so we proceeded with the case in the absence of representation from APCOA. So, what we do is to set aside the Decision below and remit the whole Originating Application to be heard afresh by a different Tribunal.