Appeal No.	 EAT/266/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 November 1996

Before
HIS HONOUR JUDGE D PUGSLEY
MR K M HACK JP
MR W MORRIS

MR M MYERS	APPELLANT

MR TANG T/A CHINA ROSE RESTAURANT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MICHAEL DUGGAN
(of Counsel)
Messrs Jackson Heath
Solicitors
2 Oxford Place
Leeds
LS1 3AX	
For the Respondent	MR STEPHEN CROSSLEY
(of Counsel)
Howard Cohen & Co
Solicitors
29 Park Square
Leeds
LS1 2PQ	

	JUDGE PUGSLEY:   This is an appeal that arises from a decision of tribunal sitting at Leeds. We say right away that this a case that must have posed considerable difficulty to any tribunal trying the matter. It is clear that the tribunal had to make adjudications about a disputed conversation and, as they make clear in their judgment, it was a difficult task due to the language difficulties that pertained between the two parties. It is pertinent at this stage to give a very brief outline of the salient issues.

	Mr Myers, the applicant, worked for the respondent, who were operating a Chinese restaurant, and the main part of Mr Myers’s job, was to act as a driver transporting the take-away meals to those customers who had placed orders.

	Some time on or about 26th July 1995, there was a conversation between Mr Myers and Mr Tang. In a nutshell it is Mr Myers’s case, that at that stage Mr Tang was telling him that his hours were going to be reduced from five night to two nights. Mr Myers believed that he was being given an ultimatum. It is Mr Tang’s case that all that was being said was a preliminary discussion as to reduction of work.

	We have the Chairman’s notes of evidence before us. The tribunal in paragraph 6 set out the test for constructive dismissal. It then went on in paragraph 7 and 8 to make this adjudication:

“7.	On looking as the facts as we have determined them to be, we find difficulty in establishing that such a repudiatory breach of contract had taken place. We certainly accept that if Mr Tang had imposed upon Mr Myers such a gross reduction in his weekly work that, without doubt, would amount to a repudiatory breach. On the basis of the evidence that we heard, however, it is difficult for us to be sure, particularly when we take into account the language difficulties that exist in this case, that the conversation that took place on 26 July went beyond an exploratory discussion as to a possible change that Mr Tang was hoping to achieve. In the view of this Tribunal, on the basis of the evidence of Mr Myers as to his account of that conversation, it may well be that that conversation went no further than Mr Tang expressing a wish as to a change that he hoped Mr Myers would agree to, and when Mr Myers made it perfectly plain that he would not agree to such a change, rather than making it clear that such a change would be imposed, the matter was left in an inconclusive fashion.
8.	The burden of proof of course lies firmly upon the applicant to establish that a repudiatory breach of contract had occurred. We are not able to find that the applicant has discharged that burden of proof and in those circumstances the application is dismissed.”

	At first blush on reading that decision, it might well be said that a tribunal is perfectly entitled to say it is difficult for them to be sure that the conversation which took place did amount to going beyond merely being an exploratory discussion. But on further analysis, this tribunal believes that the appeal should be allowed. We are concerned that the paragraphs we have just read do not in our view make it clear that the tribunal was applying the correct test as to the standard of proof.

	No one wishes tribunal decisions to be subject to myopic scrutiny and for ingenious advocates to dress up what is essentially a matter of fact as a matter of law. It is conceded by Mr Duggan, who appears for the appellant, that the burden of proof lies upon his client to establish a repudiatory breach of contract has occurred. In no place does the tribunal define and set out this standard of proof, namely on the balance of probabilities. The mere fact that a tribunal does not pompously and ponderously give itself directions of law as to the matters which are clear beyond peradventure from the terms of the decision does not give a ground of appeal. In this case it is not just that the tribunal has not set out the standard of proof. We are not confident that the tribunal applied the relevant standard. The sentence “On the basis of the evidence that we have heard, however, it is difficult for us to be sure” imports the concept of the criminal burden of proof. That fear is enhanced by the use of the words “it may well be that that conversation went no further ...”. 

	At the end of the day the tribunal had to ask itself on the balance of probabilities has the appellant satisfied us that he has been dismissed. In Hotson v East Berkshire Area Health Authority [1987[ AC 750, the dictum of Lord Diplock in Mallett v McMonagle [1970] AC 166 at 176 was cited with approval:

“In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain.”

What this tribunal had to ask itself is, has the applicant satisfied us that it is more likely than not, i.e., on the balance of probabilities, that that conversation amounted to a repudiatory breach of contract, rather than merely being an exploratory discussion as alleged by the employer. They failed to ask that question in terms in the decision and it is not clear whether that was the question they asked themselves in making the decision. 

	In those circumstances, we think there is a misdirection as to law and this matter should now be remitted to a differently constituted tribunal to consider the issue.

	We go on to say that the fact that there was a constructive dismissal does not in itself mean that it was necessarily an unfair constructive dismissal. As the tribunal never reached that point, we make no criticism of their failure to advert to that.