Appeal No.	 EAT/799/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 October 1997

Before
HIS HONOUR JUDGE H J BYRT QC
MRS T A MARSLAND
MISS D WHITTINGHAM

MRS J KINMOND	APPELLANT

RUSHTON CONNECTIONS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR P GRENDON
(Solicitor)
Messrs Whittles
Solicitors
23 Princess Street
Manchester
M2 4ER	
For the Respondents	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF
THE RESPONDENTS	

	JUDGE JOHN BYRT QC:     This is an appeal against a decision of an Industrial Tribunal sitting in Manchester.  The decision was promulgated on 7 April 1987.  By that decision it held that Mrs Kinmond’s claim that she had been constructively dismissed, was unsustainable and they dismissed it.  Mrs Kinmond appeals.

	Quite shortly the facts are that Mrs Kinmond was employed by the Respondents as a Customer Service representative at their premises in Earby, Lancashire and she held a contract of employment in writing which expressly stated that that was where her place of work would be.

	There came a time when her employers decided that they had to shut down their premises at Earby and transfer the work that was carried on there to premises they had at Burnley, which we understand from the Tribunal’s findings of fact to be some 15/20 miles distant.

	On 6 November the Respondents issued a memorandum stating quite specifically that as from 16 December the new place of employment would be Burnley and that, whilst they were prepared to reconsider the hours each employee would be required to work, they could not guarantee that they would be able to accommodate everybody’s wishes relating to hours.  In that memorandum they invited the employees to put in writing the hours that they could not work and they required that to be answered by 9 November.  The next day, 7 November, Mrs Kinmond wrote a letter in which she stated that owing to the travel difficulties and family commitments she was unable to make the change and accordingly, she wished to claim redundancy.

	The issue in this particular case is to whether that memorandum dated 6 November amounted to an anticipatory repudiation of Mrs Kinmond’s contract of employment, so that when, in due course, she intimated that she wished to resign, that was an acceptance of the employer’s repudiatory breach.  If that were the case, she would be entitled to say that she had been constructively dismissed and thereafter go for a claim based upon unfair dismissal.

	Following the writing of her letter of 7 November, she went out and secured alternative employment and as the Tribunal found it was only when she had secured that alternative employment that she communicated to her employers her wish to resign.  The Industrial Tribunal came to the conclusion that essentially, she had not been constructively dismissed at all.  The memorandum of 6 November did not amount to a notice of dismissal.

	Mr Grendon, who has appeared on behalf of Mrs Kinmond, has asked us to allow this matter to go forward to a full hearing before the Employment Appeal Tribunal in order that the issue, the legal issue, as to what the consequences were of the memorandum of 6 November could be fully argued and determined.  Mr Grendon says that the fundamental change brought about by that memorandum was that the employers were indicating that Mrs Kinmond’s place of employment, the original place of employment as stipulated in her contract as Earby, was to close and that if she wished to continue her employment with the employers, the only place she could do it would be at Burnley.  He says that that is a fundamental re-statement of her terms and conditions and she had a right to reject them should she so be minded.

	We think, after having considered the careful decision of the Industrial Tribunal in this case, that this is a matter which should go forward to a full hearing in order that the contractual situation arising out of that memorandum can be reconsidered.

	Accordingly, this matter will go forward for a full hearing.