Appeal No. EAT/600/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 November 1994

	Before

	HIS HONOUR JUDGE J BULL QC

	MR J R CROSBY

	MRS P TURNER OBE

MR M S MITCHELL	APPELLANT

NU-SWIFT INTERNATIONAL LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR N DAVIES
(Of Counsel)
Messrs Latchams Montague
Niblett & Co.
63-67 Stokes Croft
Bristol BS1 3QT

	

	JUDGE BULL QC:  This is the Preliminary Hearing, ex parte, of an Appeal by  Mr M  S Mitchell against the decision of the Industrial Tribunal sitting at Bristol on the 23rd March and the 17th May at 1994 by which it dismissed an Application for compensation for Unfair Dismissal, the full reasons having been promulgated on the 26th May of 1994.  

	It is plain from the matters before the Industrial Tribunal that Mr Mitchell was one of the most successful salesmen employed by the employers, Nu-Swift International Limited. In 1993 the company found strong dissatisfaction by their customers when both engineers and salesmen visited such customers within a short space of time.  In consequence, the company considered they were losing business.  To avoid this problem, it decided to introduce a new form of contract for its salesmen designed to space their visits and avoid clashes with those of the engineers.  So far as Mr Mitchell was concerned there were some preliminary discussions at a meeting on the 16th December 1993 and a further one the following day, but nothing much turns upon those meetings.  On the 24th December Mr Suggett, the Associate Director and General Sales Manager wrote to the Appellant about his terms of employment and the letter concluded in this form:

		"It is very much my hope that you will agree we work in the style of the majority of our representatives and you show that agreement by signing and returning the new enclosed Terms before the end of January 1994.  Should you not agree to sign these new Terms I will regrettably have to notify you that dismissal proceedings will commence."

Mr Mitchell took that letter as one of the circumstances which entitled him to claim constructive dismissal against the company.
	
	In this matter, the original Notice of Appeal was not in the terms which any advocate pursuing this appeal might have wished.  Mr Nicholas Davis who took this matter on at a very late stage has sought our leave to re-amend his ground of appeal and that leave, we grant.  

	The Notice of Appeal in its original form alleged that the Industrial Tribunal erred in law and that they failed to draw distinction between cases such as Haseltine Lake & Co v Dowler where no identifiable date for dismissal was given, and a case such as the instant one, where a specific date was given and that was, it was suggested in the Notes of Appeal, the 30th January 1994.  With realism which we applaud, Mr Davies concedes that he is bound to accept, as indeed he is, the letter of the 24th which I have just read out, does not specify a specific date for dismissal and that the argument advanced in that ground of appeal is in our view not tenable.  

	The amended grounds of appeal suggest that the Industrial Tribunal had erred in law in that they failed to appreciate that the intention to terminate was in breach of contract amounting to a anticipatory breach which entitled the Appellant to leave the Respondents' employment.  Again, Mr Davies realistically concedes, this is not supported by the findings because there was no termination that would amount to breach of contract and indeed, in the circumstances of this case all the facts seem to point to a dismissal on notice which would be lawful.  There is, in our view, nothing in that point.

	However, his own grounds of appeal which now appear in the re-amended grounds of appeal for which we are given leave, are in this form firstly that:

		"The Tribunal failed adequately or at all to consider whether the action of the Respondent in requiring the Appellant to sign a new contract of employment coupled with the threat of dismissal if he refused to so sign amounted to a breach of the implied term of trust and confidence."

In the alternative he suggested that:

		"the Tribunal erred in law in holding that such action of the Respondent was not a breach of the said implied term or was not sufficiently serious a breach to justify the Appellant leaving the Respondents' employment."

	In order to found that argument, he focuses upon the final paragraph of the Industrial Tribunal's reasoning.  Paragraph 3 of their full reasons they say this:

		"Mr McEwan" [who then appeared for the Applicant] " whilst accepting that a breach of contract was necessary for constructive dismissal, urged us to find such breach in the respondent's conduct in apparently stating on 17 December that the applicant was not required to sign the new terms and on 24 December writing to say that dismissal proceedings would be commenced if he did not do so.  He said this conduct removed the trust and confidence that should exist between employer and employee and that in itself was a sufficient breach for a finding of constructive dismissal."

In paragraph 4, the Industrial Tribunal continue with these words:

		"We are called upon to determine whether the letter of 24 December amounts to a serious breach of contract sufficient to justify a finding of constructive dismissal.  Having given both it and the circumstances in which it was written careful consideration, we find that it was not such a breach.  Stating that a contract is coming to an end is not in itself a breach.  Neither are we able to support Mr McEwan's argument that the difference between the applicant's understanding of the meeting on 17th December and the terms of the letter of 24 December constitutes such breach.  The application is accordingly dismissed."

It has to be said that in paragraph 2, the Industrial Tribunal set out the matters of law upon which they had to decide impeccably and there is no suggestion to the contrary.

	Mr Davies focuses on the penultimate sentence in paragraph 4.  He suggests and he does with clarity of analysis and a high degree of persuasiveness that the sentence:
	
		"Neither are we able to support Mr McEwan's argument that the difference between the applicant's understanding of the meeting on 17 December and the terms of the letter of 24 December constitutes such breach."

is capable of two meanings - it could either mean that there was no breach of the implied terms, in the view of the Industrial Tribunal or, a second possible interpretation is that the Industrial Tribunal considered that there was a breach but not of sufficient seriousness to justify the employee leaving.  If the latter, be the interpretation, Mr Davies presses upon us that such a finding would be an error of law.  He refers us to the well known case of Woods v W M Cars Services (Peterborough) Limited ICR [1981] page 666 and particularly the passage of Mr Justice Browne-Wilkinson as he then was, at page 669.  Indeed it follows that if the Industrial Tribunal had considered that there was a breach of the implied term of trust and confidence and had reached the conclusion that the breach was not of sufficient seriousness to justify the employee leaving, then indeed there might be an arguable point in this case.  However, it is our unanimous view that reading the whole of their reasons, the decision which they reached was that there was no breach of the implied term.  

	We have looked at the whole of this decision and we reminded ourselves that the question of whether or not there is a fundamental breach of contract is a mixed question of fact and law.  If the material before the Industrial Tribunal would enable them reasonably directing themselves to come to the conclusion which they did, this Appeal Tribunal cannot and should not substitute its decision for that of the Industrial Tribunal, however we might have decided this matter had we been sitting at first instance.  

	Looking at the matter in the round, we can detect no error of law in this Industrial Tribunal and most certainly we cannot say that in any of the respects that have been put forward so ably by Mr Davies, or indeed any other respect which occurs to us, this Industrial Tribunal acted in a way or reach a conclusion that no reasonable Tribunal could have done.  It follows therefore, upon our findings that there is no point of law here, that this Appeal falls to be dismissed and we so dismiss it.