Appeal No.	 EAT/592/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 September 1997

Before
HIS HONOUR JUDGE J HICKS QC
MRS R CHAPMAN
MR D G DAVIES CBE

MRS S LEAKER	APPELLANT

LEICESTER CORPORATE KNITWEAR LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B BLYTH
(Representative)
Leicester City Council
Anti-Poverty Section
A4 New Walk Centre
Leicester
LE1  6ZG	
For the Respondents	NO APPEARANCE ON BEHALF OF THE RESPONDENTS	

	JUDGE HICKS QC:   Mrs Susan Leaker, the Appellant, was employed by Leicester Corporate Knitwear Ltd, who are garment manufacturers.  In a letter dated Friday 28 July 1995 she resigned and it may well be that the letter reached the employers the following Monday, 31 July.  

	The reason why she resigned, she says, is that during the previous week she had been laid off work, initially, by what she was told on the previous Friday, 21 July, for three days: Monday, Tuesday and Wednesday.  On Tuesday she was telephoned and told there was work on Wednesday, but she was not available for that.  Although she said she could go in on Thursday, her evidence apparently was that she was told not to do that but to come in on Friday.  When she went in on Friday she collected her wages.  There is nothing in the Tribunal’s findings as to whether she wanted to work and could not, or whether she did not want to work.  Her evidence about that in the Chairman’s Notes is not so clear that we propose to make any finding about it, because it is not for us to make findings of fact.  

	What undoubtedly did happen on that Friday, as she said and as the Tribunal accepted, was that she asked for a guarantee that in the following week, and indeed generally, she could have a guarantee of 39 hours per week work, those being the basic hours which had obtained normally during the course of her work as she had said in her Notice of Application and as the employers had accepted in their Notice of Appearance.  She was told that there could not be any such guarantee and that same day, apparently, she wrote her letter of resignation.  

	On that same day, but she said in her evidence later, she went for an interview for another job.  According to the Notes of Evidence, there is nothing to indicate that it was a better job in the sense of more highly paid or anything of that kind, but she took it.  It was the same type of work, and her resignation therefore stood.  Her application to the Industrial Tribunal was on the basis that that was a constructive dismissal because her resignation was prompted by the fundamental breach by the employer of the contract in the lay-offs that week and the refusal to promise that there would not be further lay-offs; that is to say, the refusal to guarantee the 39 hour working week.

	In those circumstances, in our view, it was incumbent upon the Industrial Tribunal first to find what were the relevant terms of the contract between the parties and, in particular, whether the employers were entitled to lay Mrs Leaker off either without pay, or, as appears to have been the case - although there is no finding about this in the Industrial Tribunal’s reasons - at some minimum guaranteed lay-off pay, for which there is indeed statutory provision; but there is no finding by the Industrial Tribunal as to what the relevant term of the contract was in that regard and therefore it was impossible for them to find, and again there is no finding, whether what did in fact happen was a breach of that contract.  That must be the fundamental starting point of any decision in the case of constructive dismissal.  It follows yet again that since there was no finding as to breach there was no finding as to whether any breach was fundamental or repudiatory and therefore such as to justify the employee’s resignation.

	There is a simple statement that the Tribunal considered that this was not a situation where the employee was entitled to consider that she had been constructively dismissed, but that by-passes all the necessary findings of fact on the way to such a conclusion.  There is also this sentence: “We believe she resigned in order to find a better job”.  First of all, as far as we can see, there was no evidence that the job she obtained was better, but more fundamentally it is not at all clear whether the Tribunal is relying on that as a totally separate reason for their conclusion, in other words that even if there had been a fundamental breach, it was not that which was the true reason for Mrs Leaker’s resignation, or whether they are simply pointing to that as one of their reasons for finding that there was no fundamental breach in the first place.  

	In either event that sentence is, in our view, unsatisfactory, because on the first alternative there seems to be no evidence to support the finding that it was a better job and no findings of fact as to the crucial sequence of events on the Friday, that is whether she was already contemplating applying for another job before she resigned and on the second alternative, that, in any event, is not helpful or relevant to the question of whether the employers were in breach and if so whether the breach was fundamental.  

	For those reasons we find that the Tribunal’s reasons were not good in law and we must therefore allow this appeal.  We have considered whether it should be remitted for a further hearing to the same Tribunal or to a differently constituted Tribunal.  Balancing the considerations on either side, which are familiar, we have come to the conclusion that in this case it will be better to direct that there be a re-hearing ab initio before a newly constituted Tribunal.