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Cite as: [1995] UKEAT 196_93_0910

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    BAILII case number: [1995] UKEAT 196_93_0910

    Appeal No. EAT/196/93

    EMPOLYMENT APPEAL TRIBUNAL

    58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

    At the Tribunal

    On 9th October 1995

    Before

    HIS HONOUR JUDGE J HICKS Q.C.

    MRS R CHAPMAN

    MR R TODD


    MRS A APARAU          APPELLANT

    ICELAND FROZEN FOODS PLC          RESPONDENTS


    Transcript of Proceedings

    JUDGMENT

    Revised


     

    APPEARANCES

    For the Appellant MR THOMAS KIBLING

    (of Counsel)

    Tottenham Neighbourhood Law Centre

    15 West Green Road

    London

    N15 5BX

    For the Respondents MR ANDREW GLENNIE

    (of Counsel)

    Iceland Frozen Foods PLC

    Second Avenue

    Deeside Industrial Park

    Deeside

    Clwyd

    CH5 2NW


     

    JUDGE HICKS Q.C.: We give leave to re-amend the Notice of Appeal into the terms set out under the heading "Questions of Law" at pages 2 and 3 of the appellant's skeleton submissions with the exception of head (i), which was not taken below, nor is it included in either of the previous versions of the Notice of Appeal and we do not consider that it should be allowed now. We require an undertaking to file and serve a re-amended Notice of Appeal accordingly. [Undertaking given].

    }*********************{

    JUDGE HICKS Q.C.: The appellant Mrs Aparau was at the time of the cessation of her employment employed as the check-out manageress or supervisor of the retail store run by the respondents Iceland Frozen Foods PLC at Wood Green. She had commenced employment with the Bejam Group PLC as a cashier on 18th May 1987 and retained her continuity of employment when that company was taken over by the respondents in January 1989. Her employment came to an end when she terminated it by letter dated 20th July 1990, but she says that that was in circumstances which amount to constructive dismissal. It was her application for compensation for unfair dismissal on that basis which was dealt with by the Industrial Tribunal. The Industrial Tribunal rejected that application, and it is from that decision that she appeals.

    The facts, so far as relevant to this appeal, are that having begun work as I have already indicated she was in the first instance engaged upon the terms of a written contract dated 22nd May 1987, and that contract contained no express provision for the place of employment, nor any express provision as to whether the employers were entitled to transfer her elsewhere. It is a fact that she did not remain for the whole of her employment at Wood Green; following a promotion she transferred voluntarily to Bejam's Whetstone branch, where she worked for some 6 months, and then she came back to Wood Green as check-out manageress in June 1988. Both of those changes occurred before the takeover by the present respondents.

    When the respondents took over Bejams they issued new written terms and conditions of employment in April 1989 to all the 7,000 employees of Bejam Group PLC as well as their own existing 2,500 employees, presumably and understandably with the aim of achieving uniformity of terms of employment. Those terms contained this provision:

    "..... you will normally be located at ..... but may be required to move to a different location at any time."

    The Industrial Tribunal accepted the evidence of the Wood Green store manager that those new terms and conditions, or rather the document containing them, having been received from head office were handed to each employee individually in a brown envelope addressed to that employee by name, and that he personally did that.

    Mrs Aparau gave evidence that she did not receive those new terms and conditions of employment, but the Industrial Tribunal found as a fact that she did, taking into account among other evidence what the store manager had said about handing the terms out and also his evidence that after the issue of a new contract Mrs Aparau had a conversation with him, drawing attention to an alteration in the terms relating to the hours of work, which showed, as the Tribunal found, evidence of her having read the new terms.

    However, what is common ground is that she did not sign and return the duplicate supplied by the employers, which provided in clause 20:

    "I have read and understood the above Conditions of Employment and agree to accept the appointment under these terms."

    Mrs Aparau, according to the findings of the Industrial Tribunal, did not enjoy a good working relationship with the Wood Green store manager, and the Tribunal make findings about the history of that relationship which we need not read verbatim. As the result of a particular disagreement which occurred in July 1990, the district manager offered her a voluntary transfer to East Finchley and she asked for time to consider that without either accepting or rejecting it at the time. Before she had given any considered reply to that offer there was a further disagreement with the store manager, as a result of which the senior manager concerned wrote a letter to Mrs Aparau which contained the following:

    "..... 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 at 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 9 am on Friday 20 July 1990. [The letter being dated Thursday, 19th July 1990.]

    Failure to do so will be regarded as unauthorised absence."

    Mrs Aparau did not accept the respondents' right to give her that instruction and terminated the contract, and that gave rise to the issue which I have already referred to of whether she was constructively dismissed in those circumstances.

    The Tribunal, in rejecting her application, found first that there was no express clause of Mrs Aparau's contract entitling the respondents to move her against her will. The relevant part of their conclusion on that issue was as follows:

    "9. ... We recognise that there can be no acceptance of a contract by silence [and that of course is a reference back to their finding of fact that there had been no signature and return by Mrs Aparau of the revised terms and conditions of contract] and if the respondents had attempted to transfer Mrs Aparau to the East Finchley store compulsorily soon after she had been offered the new terms and conditions of employment a strong case could be made for asserting that she was not bound by the new terms and conditions which she had not accepted. However, we find that she received the new contract in April 1989 and was well aware that it contained different terms than her contract with Bejam Plc and she made no formal objection but worked under the new conditions for a period of more than 12 months before submitting her resignation on 20 July 1990. ..."

    Then at the end of that paragraph:

    "... Mrs Aparau chose to remain silent and to enjoy the benefits of continued employment under the new contract without disclosing her objection: there was acceptance of the new contract by performance."

    On that ground, therefore, the Tribunal came to the conclusion that there was an express term which entitled the respondents to give the instruction which they gave, and that there was no breach of contract and no constructive dismissal.

    They went on, however, to give a second, and indeed a third reason, because having made that finding they then go on to say that they had considered the position if they were found to be wrong in determining that there was an express mobility clause in the contract of employment. They refer back to the commencement of Mrs Aparau's employment with Bejam Group Plc and to the fact that at that time that employer operated a chain of frozen food stores in Greater London and elsewhere in the United Kingdom. They again refer to the fact that that contract was silent as to the place of employment. They continue:

    "11. ... In employment of this kind it is usual for employees to agree to work at branches within reasonable travelling distance of their home. Mrs Aparau commenced employment at the Wood Green branch but agreed to transfer to Whetstone store on promotion, which is a great deal further than East Finchley store. Some 6 months later she agreed to transfer back to the Wood Green store."

    They then refer to an authority which was cited to them, but the facts which they find at that stage relevant to the issue they were about to address were first what they regarded as being the fact that it was usual for employees to work at branches within reasonable travelling distance, and secondly the fact that during the course of that employment Mrs Aparau did in fact by agreement move twice, once away from Wood Green, and once back to Wood Green. Against that background and in the light of the authority which was cited to them the Tribunal address the question of whether there was an implied term entitling the employer, that is to say Bejam (because this question must relate back to the initiation of the employment), to move Mrs Aparau from one store to another, at least within reasonable distance. They reach their conclusion on that in paragraph 12 of their reasons:

    "12. We have no doubt at all that if the employers had said to Mrs Aparau at the commencement of her employment in May 1987 that they had a number of branches in Greater London and that it might be necessary for operational reasons to transfer her to another store within reasonable daily reach of her home, she would have said "of course I will be pleased to work at another nearby store". [Then they give as further reasons for that] She would be eager to secure the employment and would be aware that it might be necessary for operational reasons, as well as for the development of her own career, that she might be required to change her place of work. ..."

    They then go on to say, and this is uncontroversial, that if that were the implied term in the Bejam contract it would have carried over into the contract with the respondents.

    But thirdly, and finally, the Tribunal addressed the question whether, if they were wrong about both of those conclusions, and there was no contract therefore entitling the respondents to move Mrs Aparau, so that the transfer to East Finchley was a breach, that breach was such a breach as would entitle Mrs Aparau to treat the contract as repudiated. They do not actually use the word "repudiated", but that is the test. They put the test in terms of whether it was a fundamental breach, and they come to the conclusion that it was not a fundamental breach, because it was a reasonable requirement in all the circumstances. They also, in support of that conclusion, say that Mrs Bather, the superior manager who made the decision, had satisfied herself by enquiry that the transfer to East Finchley would cause no known hardship to Mrs Aparau and that an offer was made to re-imburse additional travelling expenses. The Tribunal therefore came to the conclusion that even if they were wrong about the right of the employers to transfer Mrs Aparau, so that the order was a breach of contract, it was nevertheless not such a breach as would entitle her to terminate the contract and regard that as constructive dismissal.

    We deal then with those three ways in which the Tribunal reached its conclusion.

    As to the first, whether Mrs Aparau accepted the new terms which the respondents, Iceland Frozen Foods sought to incorporate in the contract, we start from the position that Iceland Foods were not entitled unilaterally to alter the contract, nor indeed do they put their case on that basis. The question is whether there was a fresh contract, whether by way of the old or substitution for it. Clearly, in the traditional analysis of contract formation, the circulation by Iceland Frozen Foods of those terms was an offer Mrs Aparau could accept or reject. The mode of acceptance was in fact specified by Iceland Frozen Foods, the person making the offer, because, as I have said, the form contained in Clause 20 an express acceptance which the employee was invited to sign and return.

    We therefore start from the position which is helpfully summarised in Chitty on Contracts 27th Edition, paragraph 2-042:

    "An offer which requires the acceptance to be expressed or communicated in a certain way can generally be accepted only in that way."

    Then at paragraph 2-045:

    "Even if the prescribed method of acceptance is not complied with, the offeror would no doubt be bound if he had acquiesced in a different mode of acceptance and had so waived the stipulated mode."

    2-047:

    "An offeree who does nothing in response to an offer is not bound by its terms. This is so even though the offer provides that it can be accepted by silence."

    At 2-050:

    "The general rule that there can be no acceptance by silence does not mean that an acceptance always has to be given in so many words. An offer can be accepted by conduct; and this is never thought to give rise to any difficulty where the conduct takes the form of a positive act."

    So much by way of background and really uncontroversial general principles.

    The difficulty in the present case was of course that there was no positive act of acceptance, neither the prescribed act of signing and returning the duplicate form nor any other positive act in the sense of a change, because all that happened was that Mrs Aparau went on working at the same place and being paid exactly as before. The question is whether her doing so, and specifically in the terms of the Industrial Tribunal's judgment doing so for as long as 12 months, could of itself amount to an acceptance.

    There is, in our view, a helpful passage on the application of the general principles to the particular circumstances of an employment contract in the case in this Appeal Tribunal of Jones v Associated Tunnelling Co. Ltd [1981] IRLR 477, and the relevant passage begins in paragraph 21 of the judgment, where the Tribunal was dealing, again, with a case where there had been varied terms issued by the employers but not signed by the employee, who had simply continued working without outward change of circumstance. Dealing with the situation where an employer issues a statutory statement of terms of conditions of employment, the Tribunal say this:

    "... the first of such statements to be issued is often compelling evidence of what terms have in fact been agreed. [That, I interpose, is not strictly applicable here, because it seems from the Industrial Tribunal's findings that the Bejam contract was not simply a statutory statement, but was in fact the contract. However, that does not affect what follows in the judgment in the Jones case, which continues:] But where there are two or more statements which are not in identical terms, the later statement can only be evidence of an agreed variation of the original terms. Such variation may be either express or implied. If, as in the present case , there is no evidence of any oral discussion varying the original terms , the fact that a statement of terms and conditions containing different terms has been issued cannot be compelling evidence of an express oral variation. The most that can be said is that by continuing to work without objection after receiving such further statement, the employee may have impliedly agreed to the variation recorded in the second statement or be estopped from denying it.

    In our view, to imply an agreement to vary or to raise an estoppel against the employee on the grounds that he has not objected to a false record by the employers of the terms actually agreed is a course which should be adopted with great caution. If the variation related to a matter which has immediate practical application (eg, the rate of pay) and the employee continues to work without objection after effect has been given to the variation (eg, his pay packet has been reduced) then obviously he may well be taken to have impliedly agreed. But where, as in the present case, the variation has no immediate practical effect the position is not the same. It is the view of both members of this Tribunal with experience in industrial relations (with which the Chairman, without such experience, agrees) that it is asking too much of the ordinary employee to require him either to object to an erroneous statement of his terms of employment having no immediate practical impact on him or to be taken to have assented to the variation. So to hold would involve an unrealistic view of the inclination and ability of the ordinary employee to read and fully understand such statements.

    Even if he does read the statement and can understand it, it would be unrealistic of the law to require him to risk a confrontation with his employer on a matter which has no immediate practical impact on the employee. For those reasons, as at present advised, we would not be inclined to imply any assent to a variation from mere failure by the employee to object to the unilateral alteration by the employer of the terms of employment contained in a statutory statement."

    Now that was in Jones obiter, in the sense that the Employment Appeal Tribunal decided the appeal on the basis of an implied term, and indeed we must to this case return when we deal with the issue of implied terms. But it is manifestly a considered statement on the application of the law as to acceptance by conduct or by continuation of a state of affairs in the employment field, and in our view is entitled to considerable weight, and indeed we agree with it, both as a statement of law and, so far as it contains a statement as to experience in industrial relations, from that point of view also.

    Against that background, therefore, we turn to the reasons given by the Industrial Tribunal which I have already read. In our view they contain misdirections of law in two respects. The first is that there is no self-direction or warning or an expressed awareness of the need for what in Jones is called "great caution" in reaching the conclusion that an employee has, by merely continuing an employment without any overt change or overt acceptance of terms which the employer is seeking to impose, truly accepted those terms so as to vary the contract. The only recognition of any need for caution at all is the Industrial Tribunal's words: "We recognise that there can be no acceptance of contract by silence ...", but that is very far from showing an approach consistent with what, in our view, and in line with the words which we have quoted from the judgment in the case of Jones, is necessary.

    The second reason for our conclusion that the Industrial Tribunal misdirected itself, is the way in which they put their reason, in that having referred to the inadequacy of silence they then go on to say that: "... if the respondents had attempted to transfer Mrs Aparau ... soon after she had been offered the new terms ... a strong case could be made for asserting that she was not bound ..." and to contrast that with the fact that she had gone on working for more than 12 months. It is not possible to see in what way on principle or authority some specific or any lapse of time should make any difference in this regard. No doubt a matter of a day or two before Mrs Aparau received her next wage packet might be a different position from her continuing after she had done so. But, if continuation in employment is to be regarded as acceptance then that, as far as we can see, cannot be a matter of some gradual process which at some undefined point between the first week and the period of 12 months transforms what is non-acceptance into acceptance.

    Mr Glennie seeks to support the decision of the Industrial Tribunal by reference to their findings that Mrs Aparau had raised the question of the change in terms relating to hours of work, but that seems to us to be of no particular force. In the first place, simply as a matter of common sense in relation to the words which I have cited from the Jones case, just as it is not to be expected that every employee will read and understand every word of a document of this kind, so it is not to be supposed that because one particular clause which has an obvious impact such as hours of work catches her eye that means that she has read every other part of the contract.

    Secondly, in terms of the distinction which is drawn in Jones, with which we agree, between continuing under a change which has immediate practical application, such as rate of pay, and saying nothing about a change which has no immediate practical application again, if Mrs Aparau had concerns about whether she would be required to work different hours that is understandably something which she might want to get clear right away, whereas there was no immediate prospect of her being moved.

    Thirdly, in terms of the use which Mr Glennie sought to make of that fact by reference to the mention in Jones of whether an employee will risk a confrontation with his employer, there is no evidence or finding by the Tribunal that Mrs Aparau's raising of the hours of work was viewed by either side as a confrontation. She may well simply have asked a question and been reassured as to the way in which the new clause would be operated. That would be very different from simply going to the manager and saying "I am not happy with your right to move me under the mobility clause", which would have been a direct challenge to one of the terms which the employer wished to impose.

    For all those reasons we have come to the conclusion that the decision of the Industrial Tribunal cannot be sustained on the first basis on which they put it, namely an express mobility clause. In those circumstances we do not give any ruling on the alternative ways in which Mr Kibling put that first point. He said that the alleged variation of contract would fail for lack of consideration, but there is no need for us to deal with that, since we find that there was no acceptance of the new contract by Mrs Aparau. Further, he said, even if that clause were incorporated it should not, as a matter of construction or by way of implied term, be capable of being used for disciplinary purposes, as he says on the facts was attempted in this case. Again, we need not deal with that because we have found that this was not an express term of the contract. Finally, the last way in which Mr Kibling, by his re-amended Notice of Appeal, sought to attack this finding was to allege that the Tribunal's finding of fact of the receipt of the terms by Mrs Aparau was perverse, but he abandoned that ground of appeal, and therefore we need not deal with that.

    We come therefore to the second way in which the Industrial Tribunal put their decision, that is to say by way of an implied term dating back to the original contract with Bejam Group Plc. We have in mind the classification of implied terms set out in the speech of Lord Wilberforce in the case of Liverpool City Council v Irwin [1977] AC 239. At page 253 Lord Wilberforce said at letter F:

    "Where there is, on the face of it, a complete, bilateral contract, the courts are sometimes willing to add terms to it, as implied terms: this is very common in mercantile contracts where there is an established usage: in that case the courts are spelling out what both parties know and would, if asked, unhesitatingly agree to be part of the bargain. In other cases, where there is an apparently complete bargain, the courts are willing to add a term on the ground that without it the contract will not work - this is the case, if not of The Moorcock ... itself on its facts, at least of the doctrine of The Moorcock as usually applied. This is, as was pointed out by the majority in the Court of Appeal, a strict test - though the degree of strictness seems to vary with the current legal trend - and I think that they were right not to accept it as applicable here. There is a third variety of implication, that which I think Lord Denning M.R. favours, or at least did favour in this case, and that is the implication of reasonable terms. But though I agree with many of his instances, which in fact fall under one or other of the preceding heads, I cannot go so far to endorse his principle; indeed, it seems to me, with respect, to extend a long, and undesirable, way beyond sound authority.

    The present case, in my opinion, represents a fourth category, or I would rather say a fourth shade on a continuous spectrum. The court here is simply concerned to establish what the contract is, the parties not having themselves fully stated the terms. In this sense the court is searching for what must be implied."

    In the case of Jones, to which we have already referred, this Tribunal held that there must necessarily in a contract of employment be some term as to place of work, so that term would fall within Lord Wilberforce's fourth category. One is not asking whether given an apparently complete contract one should add some term, with the strict test which is required in order to do that. One is looking for what should be the term on a subject which must be covered one way or the other, and if not expressly, it must be covered by implication. Now if there must be a term as to the place of work, that causes no difficulty in a case like the present. It is manifest that the implied term as to place of work is that is shall be the place where the employee is actually working at the time, or about to start work if it is the very beginning of the relationship.

    We also agree with the judgment in Jones v Associated Tunnelling Co. Ltd, that in the type of employment which was under consideration there, that is to say working for contractors who, among other things, were carrying out specialist tunnelling and bunkering work at National Coal Board Collieries, there must also be some implied term as to mobility, because the nature of the work was such that it was certainly not guaranteed to, and very probably would not, continue indefinitely at the same place. Another example often cited in the authorities is that for instance of a steel erector. Here there was no necessity for such a term, and in our view it should therefore be implied only if the stricter test appropriate to such circumstances is satisfied. The Industrial Tribunal seem indeed to have had that test in mind, in the way in which they put the question in paragraph 12, where they say that if the employers had said to Mrs Aparau that it might be necessary, she would have said "of course". That is not exactly the way in which the traditional test is put in The Moorcock, but it plainly has that sort of approach in mind. If that is the correct test, then we for our part are quite clear that the answer given by the Industrial Tribunal is incorrect. If this was a term not necessitated by the express terms, or by the nature of the relationship, in the sense that it would be necessitated by the nature of a steel erector's contract, then we see no reason at all why Mrs Aparau should simply have said "of course" if the question of such a clause had been raised. Nor, to put the test in another way, do we see any reason for implying such a term in order to give business efficacy to the contract. Of course, it is an advantage to employers of assistants in large chains of stores to be able to move employees around, but it plainly is not a necessity; there are all sorts of ways of dealing with obtaining the necessary flexibility of employment, without having to have resort to a compulsory right to transfer, and on that way of putting the test we see no reason why this term had to be implied.

    If we are wrong about that and the correct conclusion is that some term as to mobility must be implied in every contract of employment, then first that does not of course necessitate that such a term will always give the employer the right to move the employee. The term as to mobility may simply be that the employee is entitled to remain at the particular work place. For that reason the distinction between the necessity of having some term as to mobility and not is rather an unreal one, because it is a distinction between silence as implying no right to transfer and an express provision against transfer, which may not be very common. However, if that is the way in which the matter should be approached, Mr Glennie relies on the case of Courtaulds Northern Spinning Ltd v Sibson [1988] ICR 451 which was also cited to the Industrial Tribunal, for the proposition that the test in that case is simply, and this comes at page 460G, as being:

    "... The court merely has to be satisfied that the implied terms one which the parties would probably have agreed if they were being reasonable."

    And in that passage Slade LJ in his judgment, it appears, contrasts that test with the test of the court having to be satisfied that the parties, if asked, would in fact have agreed the term before entering into the contract.

    We are not at all clear how that test as formulated by Slade LJ, in Courtaulds, is to be reconciled with what the House of Lords said in Liverpool City Council v Irwin, where for instance Lord Wilberforce at page 254 F in his speech said:

    " My Lords, in order to be able to choose between these, it is necessary to define what test is to be applied, and I do not find this difficult. In my opinion such obligation should be read into the contract as the nature of the contract itself implicitly requires, no more, no less: a test, in other words, of necessity."

    However, assuming in the respondents' favour that the Courtaulds test is correct and that we must therefore on this assumption ask ourselves what term the parties would have agreed if they were reasonable, we are clear that on that basis also no term entitling the respondents to transfer Mrs Aparau against her will should be implied. The facts of the present case are very different from those of Jones v Associated Tunnelling Co. Ltd, where such a term was implied, and the nature of the employment there I have already described. They are also different from those in the case of Courtaulds v Sibson itself, where the employee was a lorry driver working out of a particular transport depot, but of course in the course of his employment driving substantial distances. It is noteworthy in the Courtaulds case that despite the conclusion that a mobility clause was properly to be implied there the judgement of Slade LJ, with whom the other members of the Court of Appeal agreed, contained this sentence at page 461 H, after dealing with the circumstances of the employees job in that case:

    "Though constant reference has been made in the course of argument to Greengate as the employee's "place of work", it was in truth no more than a starting and finishing place for his work shifts - ... The present case is quite different, for example, from that of a shop assistant whose place of work will ordinarily be a particular shop in a particular locality throughout the working day."

    That of course, again, is obiter, but it is striking that the counter-example which the Court of Appeal chooses to give in the very case in which it is coming to the conclusion that an implied mobility clause arose is the example of a shop assistant.

    We do not therefore consider that the decision of the Industrial Tribunal can be sustained on this ground either, and to summarise: our first reason is that there was no necessity to have any clause in such a contract about mobility and secondly, if we are wrong about that, and some clause must be implied, there was no necessity or no ground for supposing that the parties, being reasonable, would both have agreed that it should give the employer the right to move Mrs Aparau at the employer's will.

    That brings us therefore to the third basis on which the Industrial Tribunal put its decision, that if there was no express or implied mobility clause, nevertheless what must in those circumstances be a breach on the part of the respondents in instructing Mrs Aparau to move was not a fundamental breach or, to put it more accurately, not a repudiatory breach entitling her to treat herself as having been constructively dismissed.

    In our view that ground cannot be sustained either. The specific finding which the Industrial Tribunal made, and which plainly is a significant and material part of their reasoning in reaching that conclusion, is that there was an offer by the employers to re-imburse the additional travelling expenses which Mrs Aparau would have incurred in working at East Finchley. Mr Kibling says, and Mr Glennie does not dispute this, that there is simply no note of any evidence to that effect. In those circumstances we really see no justification for assuming that there was some unrecorded evidence covering the point, so for that reason alone we would reject this ground, for the reason that there was no evidence to found the Industrial Tribunal's conclusion.

    But we also consider it wrong on a more general level, because for an employer to give a summary instruction to an employee to change the employee's place of work, when there is no term entitling the employer to give such an instruction, must in our view be a prime example of a repudiatory breach. It would require the most extreme circumstances to take it out of that category. Mr Glennie said: what if the employers had moved their shop from number 47 The High Street to number 48? Well, it may well be that in those circumstances the situation would be different, but this is far from being that sort of case, this was a case where an employee was working at one branch, that that branch was to continue in existence, and that she was being told to go to work at another branch at a very significant distance away, not of course one which required her to move house or anything of that kind, but nevertheless one which made a significant difference in her pattern of life. We see no way in which that can be found to be other than a repudiatory breach of contract.

    For those reasons, therefore, we consider that the Industrial Tribunal's decision was wrong in law on each of the three grounds on which it was based. We have not been addressed as to whether, in those circumstances, we are in a position to substitute a conclusion of our own or whether, as would be the normal course of events, the matter must be remitted for a further hearing. We take it that if it were remitted it would have to be for a complete re-hearing before a different Tribunal; it does not seem possible to separate particular findings that could stand and leave the rest to be dealt with afresh.

    JUDGE HICKS Q.C.: We have come to the conclusion that the proper result of the decision which we have announced and the reasons which we have given for it is that in the case of the third ground relied upon by the Industrial Tribunal, that there was no fundamental breach, we are in a position to substitute our own decision that there was such a breach for their decision, that is of course on the basis that both of the earlier grounds are not made good. Our reason for that is that, in our view, no Industrial Tribunal correctly directing itself could come to any other conclusion.

    As to the second ground, the implied term, as Mr Glennie very properly and fairly concedes, whether a term should be implied, given facts properly found, is itself a matter of law, and therefore the result of our decision there is that we should substitute a finding that there was no such implied term. The only gloss or qualification which Mr Glennie places upon that is that it is necessary to have the facts, and he submits that there is the possibility that we are not in possession of the full facts as to the nature of Mrs Aparau's employment. We consider that really an insubstantial doubt or qualification, because her employment was originally with Bejam that of an `assistant sales assistant' in a chain of retail stores, and really there is no great mystery or technicality about the nature of that employment that is likely to be outside our collective experience.

    But, as to the first ground, we accept that since our reason for setting aside the decision of the Industrial Tribunal is that of misdirection we ought to remit the matter for a re-hearing of that issue alone, which will of course be conducted on the basis of a proper direction as we have held it to be. Unless it is objected to by either side, we direct that that re-hearing should be before the same Tribunal if it can be re-assembled; of course if it cannot, then other arrangements will have to be made, but that is our disposition.

    If we send it back to a freshly constituted Tribunal, they will have to start from the beginning and hear all the evidence. However long ago this may be the existing Tribunal, if they can be re-assembled, are perfectly entitled to refresh their memory from the Notes of Evidence and start from there, which will be a great saving of time and expense. There are delicate considerations to be taken into account as to whether the original Tribunal can be expected to be able to disembarrass themselves of their earlier decision and so on. But our inclination at the moment is to say that it should go back to them if they can be re-assembled.

    We do not think, although we have found them mistaken, that there is any reason to suppose that this Tribunal could not deal with the matter fairly, once they have given themselves a proper direction.

    So our direction will be that the matter be remitted for a re-hearing of the issue whether there was an express incorporation of Clause 5 of the respondent's standard terms and conditions as circulated in 1990, that that remitted hearing shall be before the same Tribunal, if it can be re-assembled. We do not think we need make any direction about remedies. If as a result of that re-hearing the Tribunal come to the conclusion that there was an unfair dismissal they obviously will have it within their jurisdiction to decide whether to go straight on to remedies, or to have a separate hearing. It will be in their hands.


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URL: http://www.bailii.org/uk/cases/UKEAT/1995/196_93_0910.html