Appeal No.EAT/670/02/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 October 2002

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR D J HODGKINS CB
MR D NORMAN

MRS S STARRITT	APPELLANT

MAZDA MOTORS UK LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR PAUL EPSTEIN
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

MR JUSTICE BURTON (PRESIDENT):

1	This is the preliminary hearing of an appeal by Mrs Sheila Starritt, against the dismissal by the Employment Tribunal at Ashford, Kent in a Decision dated 17 May 2002 of her claim that she was constructively dismissed, in circumstances which amounted to a fundamental breach of contract, and thus was unfairly dismissed.

2	The Tribunal set out the questions, in paragraph 2, of the Decision:

“(i) Was the Applicant dismissed?  In order to show this, she had to establish:
(a) a fundamental breach of contract,
(b) which caused her resignation,
(c) without such delay as to constitute acceptance.
(ii) If the Applicant established that she was dismissed, then the Respondent has to show that it was for a potentially fair reason.
(iii) It is then for the Tribunal to determine whether the Respondent acted reasonably or unreasonably in treating that reason as sufficient reason to dismiss.”

The issue was thus, in short compass, whether there was a fundamental breach of contract, by the employers, which the Appellant was entitled to accept.

3	In resolving the issue before them, the Tribunal indicated that it preferred, where there was dispute, the evidence of Mr Muir and Mr Jackson, the witnesses for the Respondents, which the Tribunal noted was generally comprehensive on the relevant issues, internally consistent, and in accordance with the documentary evidence.

4	The Appellant was employed from 17 August 1998.  On the face of her statement of terms of employment her job title is thus described, “You are employed initially as Technical Centre Coordinator for Mazda Cars (UK) Ltd”, and it does appear that, in that capacity, she worked at premises in Chapman Way, in Tunbridge Wells, and that the precise content of her work changed and evolved as she gained experience.  The responsibility for the management and supervision of the Technical Centre was held by Mr Jackson, who was the line manager for the Technical Centre manager for whom the Appellant worked.  

5	In July 2001 it was concluded, by the employers, that there would be various changes.  In the longer term that was going to involve a move to Dartford to which, in the long term, it was planned that the business relocate.  But it was not suggested, at that stage, that the Appellant go to Dartford, and had it been suggested, then issues as to breach of contract, or redundancy, might then have arisen.

6	The Tribunal concluded in terms, in paragraph 27 of the Decision, that Mrs Starritt resigned because of her anticipation that she would, in due course, be required to move to Dartford.  At the time that she resigned, however, she was not obliged to go to Dartford.  No such move became a reality until some months after she had left the company.  The position, as far as staff moving to Dartford was concerned, was that they might, in appropriate circumstances, have been eligible for redundancy.  Mrs Starritt might, in due course, have been in that position.  However, she resigned well before such a move became necessary, and the Tribunal concluded, as we have indicated, that at the time that she resigned the employer had committed no breach of her contract.

7	The submissions of Mr Epstein, instructed on the Appellant’s behalf today through ELAAS, who has very ably both condensed the lengthy submissions of Mrs Starritt, which we have read, and has put her case forcefully, and indeed in the only way that it could be put, given that an error of law must be identified before this Appeal Tribunal can be involved, revolve around two areas of alleged fundamental breach which, she says, the Tribunal inadequately dealt with.  He specifically did not pursue the suggestions made by the Appellant that there was some deficiency in the attitude of the panel, of which she originally complained.

8	Those two grounds revolve around the move, not to Dartford, but that which was taking place in July and August 2001, namely from the Technical Centre in Chapman Way, to premises found to be 2.2 kilometres away in Tunbridge Wells, namely the then head office at Mount Ephraim.  The Tribunal concluded that there were, first of all, general meetings held with the staff affected, which explained the immediate plans and the long-term plans.  The first meeting attended by the Appellant, together with all the rest of the staff, was on 10 July, when reassurances were given by the employer as to the continuity of employment, against the background of the immediate transfer, although the move to Dartford, it was said, might in due course involve some redundancies.

9	It is plain that the Appellant was not keen on the move at all, certainly was not keen on a move to Dartford, but was not keen on a move to Mount Ephraim, because she was in a position that she needed to go home in the lunch hour, and that was what she was used to doing in the premises at Chapman Way.  

10	The Tribunal found, in accordance with Mr Muir’s evidence, that there was a meeting with the Appellant on 17 July 2001 and, in paragraphs 10 and 11 of the Tribunal Decision, the following is stated:

“10 ... He [Mr Muir] informed her that the work of the Technical Centre had been reduced, and there were vacancies elsewhere within the organisation.  He indicated that he was therefore going to ask her to take on revised duties as administrative support to the after sales director, Mr Jackson.  Mr Jackson was the line manager for the Technical Centre manager for whom Mrs Starritt worked.
11 As Mr Jackson was located at the head office, Mrs Starritt was asked to move there to perform those duties.  She had the use of a company car.  As mentioned, the distance between the Technical Centre and head office was 2.2 miles.  Mrs Starritt did not raise any objection to the move at this stage, but said that she would not be prepared to move to Dartford when the business relocated there.”

11	At some stage between that clear notification, as found by the Tribunal, on 17 July and the end of the month, Mrs Starritt was told that the first date that she should report at Mount Ephraim was 31 July, when she would be providing administrative cover for Mr Jackson commencing on that date.  The evidence, which we have been invited to look at, from Mr Muir and Mr Jackson, clearly indicated that that occurred before 31 July, but no date is either given by them or found by the Tribunal.

12	Mrs Starritt, having been asked to provide administrative cover commencing on 31 July at Mount Ephraim premises, did not attend.  On 2 August there was a staff meeting in Birmingham to provide orientation in the new business structure attended by staff, and the Appellant attended that meeting.  Given that she had not attended on 31 July at Mount Ephraim, an extension was given to her by the Respondents to attend, for the first time, at Mount Ephraim on Friday, 3 August, but once again the Appellant did not attend at Mount Ephraim, but at the Technical Centre in Chapman Way.  She was plainly not content to do that which she had been asked to do by the Respondents.  

13	At paragraph 14, the Tribunal record that she wrote to Mr Muir on 5 August 2001, stating that she was “not prepared to work at the new Dartford location”, and went on to point out that her family life would be affected, by virtue of the fact that her husband works nights, and that she was able to go home at lunch time because of the locality of the Technical Centre.  She concluded, in the letter:

“I consider my contractual role will be made redundant on 1 October 2001 and I am entitled to contractual severance pay.”

14	Paragraph 15 of the Decision records that, as a result of this letter, Mr Jackson and Mr Muir discussed the matter.  They agreed that Mr Jackson would see the Appellant and explain the reason for her change of role and new place of work, and he went to see her at the Technical Centre.  He was accompanied and so was the Appellant.

“16 At that meeting, Mrs Starritt took the view that her job as Technical Centre coordinator was redundant.  She wanted to leave immediately and be paid a redundancy payment.  Mr Jackson explained that there was no redundancy, as the work still needed to be done.  Mrs Starritt then mentioned her need to return home at lunchtime to see her husband.  The issue was raised briefly.  Mr Jackson was prepared to consider a request for altered working hours in order to accommodate family circumstances.  If such a request had been made to him (for example, for an extended lunchtime) then he would have sought advice from the human resources staff.”

The end product was a letter on 9 August 2001, when Mr Muir received a letter of that date from the Appellant, stating that she considered herself to be constructively dismissed, by reason of redundancy.

15	The submission of Mr Epstein is that, first, there was a failure by the Tribunal by way of misdirection and/or inadequacy of the giving of reasons in relation to what, he submits at least arguably, to be a fundamental breach in relation to the giving of inadequate notice of the proposed move to Mount Ephraim, and he coupled this with a submission that the move itself was arguably in fundamental breach.  That case, as he more or less accepted in the course of his oral submissions, is plainly unarguable.  The evidence, which the Respondents accepted, indicates that there was plainly given, on 17 July, notice of the proposed change which Mr Epstein accepts would be reasonable, and sufficient, if that was so, and the precise date of starting was clarified at some stage thereafter;  but the important matter, of course, was the giving of the notice on 17 July, and, although he tells us that there was some dispute about the distance of 2.2 kilometres, it is plain that the Tribunal found not only that that was the distance but also that the move (paragraph 27) did not constitute a fundamental breach of contract.  Further, they said in paragraph 27:

“We understand that she may have been in difficulty as far as visits to home during the lunch hour were concerned.  However, the evidence from the company, which we accepted, was that they might have been able to adjust the lunch hours and make special arrangements if that matter had been properly discussed.”

There is no ground of error in law, as suggested, or inadequacy of reasons, in the Respondents’ decision in that regard.

16	Secondly, Mr Epstein submits, that there was, on the same basis, an error of law in relation to an argument of fundamental breach of contract, in relation to the change of role of the Appellant at the new premises.  He submits that it appears to have been accepted that there would be some changes, as a result of the move from the Technical Centre to head office, where she would be carrying out, what are called in paragraph 10 of the Decision, “revised duties as administrative support” to Mr Jackson, who was not her direct line manager at the Technical Centre, but would become so at head office.

17	The Tribunal conclude, having heard the evidence of Mr Muir and Mr Jackson, who gave an expanded version of those duties, but certainly not a full picture of the difference, if any, there would be, as follows, in paragraph 27:

“She was asked to move from the Technical Centre in Chapman Way, Tunbridge Wells, to Mount Ephraim, Tunbridge Wells.  This move did not constitute a fundamental breach of contract.  Nor did the change in the duties which she was expected to carry out.”

That is a short summation of their conclusion.  In the summary of the Respondents’ case, at paragraph 22, the Tribunal sets out the following, as the submissions being put forward by the Respondent:

“There was no single issue, or combination of issues, which was so fundamental as to entitle her to resign.  If she complained of the move to Dartford, that was not to take place until October.  If the basis was the lack of a precise job description, she could have taken action, for example, by way of the grievance procedure, in order to get the particulars.”

18	Mr Epstein submits that there was, or at any rate may have been, no contractual right to vary the precise role, or job specification of the Appellant and, if there was therefore a material variation, the Tribunal ought, at the least, to have considered, or, if they did consider, explain more fully their reasons for their conclusion as to, whether such change amounted to a fundamental breach of contract.  He points out paragraph 5 of the Decision, which reads as follows:

“Her statement of terms of employment states:
‘You are employed initially as Technical Centre Coordinator for Mazda Cars (UK) Ltd’.
Her job Description is set out at R1/29 and includes a series of secretarial and administrative tasks.  The Employee Handbook (R1/89) states:
‘The Company reserves the right to vary the content on the understanding that this is within your capability’.”

19	He submits that there is no clear finding as to whether the Employee Handbook is incorporated into her contract of employment.  Plainly, if it was, there is no suggestion that the changed duties were not within her capability, and the company would plainly have the right to vary the content of the job description.  We are not persuaded that this point is arguable.  

(1) It is fair to point out that the statement of terms of employment itself only describe the position of Technical Centre Coordinator as the “initial” position.  That would, as a start, carry with it the implication that there could, or might, be change in the nature of the employment, and certainly does not give the employee an absolute right to remain, for all purposes, Technical Centre Coordinator.

(2) But, more importantly, the Employee Handbook is utterly clear, and the question is whether there is an arguable issue that the Employee Handbook was not incorporated into the contract of employment, or did not, at the very least, inform the meaning of the word “initially” in the statement of terms.

20	We have very helpfully been shown by Mr Epstein the statement of terms of employment itself, which contains the job title referred to, with the word “initially” contained in the description.  The Group Handbook is referred to on several occasions, in the course of the document, which is said to set out the main particulars of the terms and conditions on which the Respondent employs.  It is referred to expressly under Holiday Entitlement, Sickness or Injury, Disciplinary Rules and Procedures and Grievance Procedures.  It is plain to us, from that alone, that it is intended that the Group Handbook should be incorporated within the terms, but if that were in any doubt (and Mr Epstein submits that it is not expressly referred to under the section “Job Title”), any such doubts are completely put to rest, by what is set out at the end of the document, when, above the Appellant’s signature, dated 18 August 1998, the following is set out:

“I also confirm that I have read the Group Handbook setting out further terms and conditions of my employment which I understand and accept.”

21	It appears to us unarguable but that the Handbook was incorporated into the contract of employment, thus entitling the company to vary the content from the initial job description in the way they did and, as Mr Epstein has submitted, he cannot effectively complain once the position of notice is resolved.  The one sentence in the Decision, “Nor did the change in the duties which she was expected to carry out [constitute a fundamental breach of contract]” is certainly brief, as Mr Epstein has said.  It might have been better if the Tribunal had said, “We are satisfied that there was no material change in the duties;  alternatively, if there was any material change, as the Respondents have submitted, it would not have been fundamental, or, alternatively, in any event could have been a matter for discussion, because the Appellant gave no opportunity for such discussion or the bringing of any grievance procedures, because she was determined to resign, as we have concluded, for other reasons, namely her reluctance to move to Dartford.  But, even if there were changes of which the Appellant was entitled to complain, we are satisfied that the contract of employment did entitle a variation as per the Handbook, and thus, even if there were changes, that did not amount to a breach of contract, and certainly not a fundamental breach”

22	It is certainly true that the Tribunal could have said that, rather than the short sentence which they did say, but conciseness is not to be criticised.  Certainly, we are satisfied on examination, that there are the fullest possible grounds for the conclusion that the Tribunal came to, and we have no possible grounds to interfere.  In those circumstances, the appeal is dismissed.