Appeal No.	 EAT/1182/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 February 1997

Before
HIS HONOUR JUDGE COLIN SMITH QC
MR P DAWSON OBE
MR P A L PARKER CBE

MRS E HEWITT	APPELLANT

SILVERSTONE DRIVING CENTRE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT	

	JUDGE COLIN SMITH QC:   We have received a letter from the appellant’s representative, Mr Naylor, who has written to the Employment Appeal Tribunal on 11th February 1997, as follows:

“I am unable to attend the hearing today. I apologise for this.
The submission made to the EAT on 19th Oct 1996 is self-explanatory. I could not add anything further to the statement. I would like the EAT to decide if there is a valid claim on the documentation already submitted.”

We have considered the matter and discussed it. We have looked of course at the letter of 19th October 1996, which is at pages 1 and 2 in the bundle, and we will deal with that in the course of this short judgment.

	This is preliminary application for leave to proceed to a full hearing of her appeal by Mrs E Hewitt, the employee, against a decision of an Industrial Tribunal held at Leicester on 12th September 1996, when the Industrial Tribunal decided that the appellant had not been dismissed by her employers, Silverstone Circuits Ltd, and dismissed her application for unfair dismissal accordingly. Extended reasons were sent to the parties on 23rd September 1996. 

	As appears from the findings of the Industrial Tribunal, the appellant had joined the respondents in March 1991, and at the material time she was employed as a circuit sales executive, until she handed in her notice of resignation to the respondents by letter dated 21st December 1995. She claimed that she had been constructively dismissed.

	The Industrial Tribunal correctly stated the law relating to constructive dismissal in paragraph 6 of the extended reasons for the decision, and considered first of all whether on the facts found by them, the appellant had established repudiatory breach of contract by the respondents. In order to arrive at their decision on this first issue, the Industrial Tribunal in paragraph 7 of the extended reasons looked at each of the various complaints made by the appellant which were said, either individually or cumulatively, to constitute a breach of contract by the respondents. At paragraph 7.4 they considered in particular a complaint by the appellant in evidence before them that she had been driven to resign by the fact that her bonus and commission rates for 1996 had not been agreed by 21st December 1995. The Industrial Tribunal dealt with this complaint as follows:

“7.4 The targets were not set and agreed in December 1995. The applicant’s statement of employment particulars states:
	“the targets and rates of commission will be agreed on an annual basis and notified to you by letter.”
	No date by which this will be done is stated and in this particular year there was some delay because of a delay in the production of budgets. Again, and although the applicant tells us that this was one of the matters that finally prompted her resignation, there was no mention of this by the applicant at the time of her resignation nor in the IT1 nor in the letter of 27 March 1996.”

	The Industrial Tribunal, having rejected all the appellant’s complaints, including the complaint relating to the fact that bonus and commission rates had not been set, concluded in paragraph 9 of the decision that the actions of the respondents did not either separately or taken together amount to a fundamental breach, nor did they amount to a breach of the implied term of mutual trust and confidence. Accordingly, they found that the appellant was not dismissed within section 85(1)(c) of the 1996 Act.

	By paragraph 10 of their reasons, the Industrial Tribunal observed that in the light of their finding that there had been no breach of contract, they did not need to consider whether in any event the appellant had resigned because of any breach, or because “she had attempted a bluff which had failed”, as the Industrial Tribunal put it. The Industrial Tribunal had found at paragraph 5.18 of their decision that the appellant had told them in evidence, and they accepted, that her letter of resignation was, in effect, “a bit of a bluff”, handed in in the hope that “things would be sorted out”.

	The single point upon which leave is sought to proceed to a full hearing is a submission that the contractual requirement that “the target and rates of commission will be agreed on an annual basis and notified to you by letter”, was a strict and inflexible contractual obligation of which time was the essence, to use the language of contract, and of which, therefore, the respondents were unambiguously in breach when the appellant handed in her letter of resignation in December 1995. With respect, in our judgment, this submission is based upon a misapprehension of the relevant principles of contract law. It is only in the case of particular stipulations and cases that time is of the essence of a contract, namely:

(1)	where the parties have expressly so provided;
(2)	where circumstances dictate that a fixed date must be exactly complied with, e.g. the time for delivery in sale of goods; or
(3)	where one party has given notice to the other who has been guilty of undue delay requiring the contract to be performed within a reasonable time.

No doubt here the appellant could have given such a notice, but unless and until she did so, there simply was no breach and the conclusion of the Industrial Tribunal in that regard cannot, in our judgment, be faulted. Accordingly, although we have reminded ourselves that the appellant need only show an arguable ground of appeal, in this particular case there is no such arguable ground of appeal, and accordingly the application is dismissed.