Appeal No.	 EAT/744/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 March 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR E HAMMOND OBE
PROFESSOR P D WICKENS OBE

MRS A APARAU	APPELLANT

ICELAND FROZEN FOODS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C A PURNELL
(of Counsel)
Tottenham Neighbourhood Law Centre
415 Green Lanes
Tottenham N4	
For the Respondent	MR A GLENNIE
(of Counsel)
Messrs Bullivant Jones
Solicitors
State House
22 Dale Street
Liverpool L2 4UR	

	JUDGE PETER CLARK:  As long ago as 24 July 1990 the Appellant, Mrs Aparau, presented an originating application to the Industrial Tribunal.  The question which she asked to be decided by the Tribunal was “constructive dismissal”. There, at the outset, lies one of the widely held myths of employment law, that constructive dismissal equals unfair dismissal.  It does not, as this case shows.

	The matter came before an Industrial Tribunal sitting at London (North) on 28 January 1993.  That Tribunal found that there had been no dismissal by the Respondent in the following factual circumstances.

	The Appellant commenced employment with Bejam Group Plc as a cashier on 18 May 1987 at their Wood Green store.  Shortly after commencing that employment she signed a written contract of employment on 22 May 1987.  That contract contained no mobility clause, entitling Bejam to transfer her from store to store.

	During her employment with Bejam she was promoted and voluntarily transferred to their Whetstone |Branch, some distance further away from her home than the Wood Green store.  She worked at Whetstone for some 6 months and then returned to Wood Green as checkout manageress in June 1988.

	She remained in that post at Wood Green until she resigned the employment on 20 July 1990 in circumstances which, she contended, amounted to constructive dismissal.
Meanwhile, in January 1989 the business of Bejam, including the Wood Green store, was acquired by the Respondent, Iceland Frozen Foods Plc.  The Appellant’s employment was duly transferred to the Respondent.
	In April 1989 the Respondent issued new particulars of terms and conditions of employment to its former Bejam employees, including the Appellant.  Paragraph 5 of the Statement read:

“Location
You will normally be located at Wood Green but you may be required to move to a different location at any time.”

	The Appellant never signed that document to indicate her acceptance of the terms there set out.

	Unfortunately, so the Tribunal found, there was a breakdown in the relationship between the Appellant and the store manager at Wood Green, Mr McKechnie, culminating in a written instruction from Mrs Bather, Group Personnel Controller, dated 19 July 1990 which read as follows:

“Dear Mrs Aparau,
I write to confirm that you will be transferred to East Finchley store with effect from 20 July 1990.
You had been offered this move on a voluntary basis by your District Manager, Phil Jones, when he saw you on Wednesday 11 July 1990 and again on Wednesday 18 July, but you were unwilling to commit yourself.
However, following the incident yesterday when you made derogatory comments to your Store Manager, Mr S McKechnie, in the presence of a junior member of staff, we have decided that the situation in Wood Green must be resolved as soon as possible and that it is in everyone’s interest that you transfer to East Finchley immediately.  Please report to Mr Carl Simpson at 9am on Friday 20 July 1990.
Failure to do so will be regarded as unauthorised absence.”

	The Appellant refused to transfer to the East Finchley store.  On 20 July she replied to Mrs Bather, indicating that she had taken advice from her Trade Union, USDAW, that the Respondent was not entitled to transfer her from Wood Green without her agreement, and that she was leaving the employment and intended to present a claim to the Industrial Tribunal forthwith on the grounds of being constructively dismissed.

	The Industrial Tribunal rejected the Appellant’s case that she had been constructively dismissed on three grounds.  First, that there was an express mobility clause;  although the Appellant had not signed the Respondent’s statement of terms and conditions issued in April 1989, she had continued working without demur and was deemed to have accepted the mobility clause by performance;  alternatively, such a term was to be implied into the contract or, thirdly, even if there was a breach of contract in the Respondent requiring her to transfer to East Finchley, it was not a repudiatory breach entitling her to treat herself as discharged from further performance under the contract.

	Against that decision Mrs Aparau appealed.  Her appeal came before a division of this Tribunal presided over by Judge Hicks QC on 9 October 1995.  For the reasons given in the judgment delivered by Judge Hicks and reported at [1996] IRLR 119 the appeal was allowed.  In summary, the Employment Appeal Tribunal found that the Industrial Tribunal had misdirected itself in law in finding that there was an express mobility clause;  that no such term could properly be implied and that if there was a breach of contract, it was repudiatory.

	Having allowed the appeal the case was remitted to the same Industrial Tribunal to consider whether in the first instance there was an express mobility clause in the contract of employment, applying the law as stated by the Employment Appeal Tribunal.

	When the matter came back before the same Industrial Tribunal on 11 March 1997 we understand that the Respondent conceded that there was no express mobility clause in the contract.  It followed, in accordance with the judgment of the Employment Appeal Tribunal, that the Appellant had been constructively dismissed.

	However, that left open for determination the question as to whether that dismissal was fair or unfair.  It was that issue which the Tribunal went on to address at the second hearing.  It found, for the extended reasons promulgated with a decision on 19 May 1997, that the dismissal was fair.  It is against that decision which the present appeal is brought.

	In their second decision, the Tribunal first addressed the question as to whether the Respondent had established a potentially fair reason for the dismissal.  They found that it had.  It was some other substantial reason within the meaning of s.98(1)(b) of the Employment Rights Act 1996, namely, the breakdown in personal relations between the Appellant and her manager, Mr McKechnie, requiring immediate separation of the two by compulsorily transferring the Appellant to a comparable vacancy at their East Finchley store.

	Next, reasonableness under s.98(4) of the Act.  In finding that the reason for dismissal, as found by the Tribunal, was a sufficient reason for dismissal, they took into account the following factors:

(1)	The Appellant was responsible for the breakdown in relations between herself and her manager, which was unsettling for the staff and damaging to customer service in the Wood Green Store.
(2)	The Appellant had not dismissed the notion of a transfer to East Finchley when it was suggested to her on a voluntary basis by the District Manager, Mr Jones, on 11 and again on 1 July 1990.
(3)	On 18 July the Appellant was involved in a further altercation with Mr McKechnie, when she accused him with having an affair with a member of staff in the store, in front of another junior member of staff.  That, in the view of the Group Personnel Controller, Mrs Bather, called for immediate transfer.
(4)	The transfer would involve a further 20 minutes travel.  Extra travelling expenses would be made good by the Respondent.
(5)	She did not take the opportunity given by Mrs Bather to reconsider her resignation decision.
(6)	The Appellant did not recognize that she was in any way responsible for the breakdown in the relationship between herself and Mr McKechnie.  She regarded her contractual right not to be compulsorily transferred as paramount, coupled with her domestic considerations, in particular the fact that her 6-year old child attended school close to the Wood Green store.
(7)	The Respondent reached a reasonable decision to transfer the Appellant to East Finchley in light of the breakdown in relations, brought to a head by the altercation on 18 July 1990;  the Appellant’s responsibility for that breakdown, as opposed to Mr McKechnie, and the fact that there was a vacancy elsewhere in her position but not that of Mr McKechnie.
(8)	The fact that, as it turned out, the Respondent was mistaken in its belief that it had the contractual entitlement to compulsorily transfer the Appellant was a relevant but not conclusive factor in determining the fairness of the dismissal, applying the dictum of Phillips J in London Borough of Redbridge v Fishman [1978] IRLR 69, 72.
(9)	Although the Appellant was not consulted about the transfer on 19 July, the Tribunal found on the particular facts of the case that this did not render the dismissal unfair, bearing in mind the need for immediate separation of the Appellant and Mr McKechnie,
 and the conversation between Mr Jones and the Appellant, passed on to Mrs Bather, which had taken place regarding the proposed voluntary transfer on 11 and 18 July.

	For all those reasons and in those circumstances the Industrial Tribunal concluded that the dismissal was fair.  Had they found it unfair due to lack of consultation, they went on to hold that proper consultation would have lasted only 3 days and the outcome, transfer to East Finchley, would have been the result.  Further, the Appellant would have received no compensation by reason of her unreasonable attitude and behaviour which gave rise to the need for the compulsory transfer.

	The present appeal came on for a preliminary hearing before an appeal tribunal presided over by Morison J on 13 October 1997.  On that occasion the appeal was allowed to proceed to a full hearing on three grounds, formulated by the President in this way:

	(1)	Did the Industrial Tribunal misdirect itself as to the reason for dismissal?
	(2)	Did the Industrial Tribunal misdirect itself as to the approach to a case where an employer has acted unlawfully in breach of contract?
	(3)	Did the Industrial Tribunal fail to give proper and due consideration to the need for consultation having regard in particular to the fact that the Appellant was the mother of a child who was in education?

	It is to those issues, assisted by the submissions of Counsel, that we now turn.
Reason for dismissal
	Mr Purnell began by referring us to the judgment of Lord McDonald in The Gaelic Oil Co Ltd v M C Hamilton [1977] IRLR 27, in which His Lordship suggested at paragraph 8 of the judgment that having found a constructive dismissal it would not be necessary for an Industrial Tribunal to go on to consider the fairness of that dismissal.  However, Mr Purnell accepted that Lord McDonald had himself drawn back from so bold a proposition in the later case of Industrial Rubber Products v C Gillon [1977] IRLR 389, as Waller LJ pointed out in Savoia v Chiltern Herb Farms Ltd [1982] IRLR 166, paragraph 15.  Savoia is Court of Appeal authority, binding on us, for the proposition that a constructive dismissal may be a fair dismissal.

	Other examples of such findings abound.  We would refer only to Genower v Ealing, Hammersmith & Hounslow Area Health Authority [1980] IRLR 297 in this connection, a case in which the employee was instructed to move his place of work and alter his duties in circumstances amounting to a repudiatory breach of contract by the employer entitling him to quit and treat himself as constructively dismissed.  That dismissal was nevertheless found to be fair;  a finding upheld by the Employment Appeal Tribunal, Slynn J presiding.

	In these circumstances we have no doubt that this Tribunal was entitled to find that the set of facts amounting to the Respondents’ reason for its repudiatory breach of contract in directing the Appellant to transfer to East Finchley was capable of amounting to some other substantial reason, a good business reason, on the facts as found.

The significance of the breach of contract
	We have recently considered the significance of a repudiatory breach of contract on the question of reasonableness under s.98(4) of the Act in Farrant v The Woodroffe School [1998] ICR 184.

	For the purposes of this appeal it is sufficient to record that Mr Purnell accepts the formulation of the position to be found in the judgment of Phillips J in Redbridge London Borough Council v Fishman [1978] ICR 569, 574 where he said:

“In truth, we think that the industrial tribunal perhaps paid too much attention to the contractual position.  The jurisdiction based on paragraph 6(8) of Schedule 1 to the Trade Union and Labour Relations Act 1974 [now s.98(4) of the 1996 Act] has not got much to do with contractual rights and duties.  Many dismissals are unfair although the employer is contractually entitled to dismiss the employee.  Contrariwise, some dismissals are not unfair although the employer was not contractually entitled to dismiss the employee.  Although the contractual rights and duties are not irrelevant to the question posed by paragraph 6(8), they are not of the first importance.”

	That approach was specifically applied by this Industrial Tribunal (see paragraph 5(i) of their reasons).

	In these circumstances we can discern no misdirection in law under the second issue.

Consultation
	Mr Purnell referred us to the Employment Appeal Tribunal decision in United Bank Ltd v Akhtar [1989] IRLR 507.  That was a case concerned solely with the issue of constructive dismissal.  It did not deal with the question of reasonableness under s.98(4).  We found it of no assistance.

	He further reminded us of the well known test of proper consultation, formulated by Hodgson J in R v Gwent County Council ex parte Bryant [1988] Crown Office Digest 19, and approved by Glidewell LJ in R v British Coal Corporation and Secretary of State for Trade and Industry ex parte Price and Others [1994] IRLR 72, paragraph 24.

	In our view this ground of appeal can only succeed on the basis that the decision to find the dismissal fair was perverse in the light of the lack of consultation about the compulsory transfer instruction which was given to the Appellant at 8.45 pm on 19 July 1990.

	We reject such a submission.  It seems to us that the Industrial Tribunal were well aware of the force of the point, but taking into account the history of relations between the Appellant and Mr McKechnie;  the urgent need to separate them;  the discussions between Mr Jones and the Appellant on 11 and 18 July concerning the possibility of voluntary transfer to East Finchley and the effect on the staff and customer service of continuing friction between these two senior managers within the store, set against the Appellant’s domestic difficulty over her child’s schooling and the fact that the Respondent was in repudiatory breach of contract by directing her to transfer involuntarily, the Industrial Tribunal came to a conclusion which was a permissible one.

	That disposes of the three issues in this appeal identified at the preliminary hearing.  The appeal is dismissed.

	Finally, Mr Purnell sought leave to argue a further point, namely that the Industrial Tribunal was not entitled to find that even had the Appellant been unfairly dismissed due to lack of consultation, she was not entitled to any compensation due to her own behaviour.  That application was opposed by Mr Glennie.  It is not necessary for us to decide the point, but had we done so, we should have rejected Mr Purnell’s challenge to that alternative finding by the Industrial Tribunal.