Greenaway Harrison Ltd v Wiles, United Kingdom Employment Appeal Tribunal, Judgment, Law, casemine.com

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Attorney(S)

For the Appellants MR DAVID GRIFFITH- JONES
For the Respondent MISS L WARREN

Judges

HIS HONOUR JUDGE N HAGUE QC
MR P M SMITH
MR J H GALBRAITH CB

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Greenaway Harrison Ltd v. Wiles

Smart Summary

Factual and Procedural Background

The case concerns an appeal by employers against a decision of an Industrial Tribunal at London (South) dated 2 March 1992. The Tribunal had held that the employee, referred to as the Plaintiff, was constructively dismissed under section 55(2)(c) of the Employment Protection (Consolidation) Act 1978 and that the dismissal was unfair, awarding compensation of £8,744.85. The Plaintiff was employed as a telephonist with set working hours important to her due to family commitments. After the dismissal of a third telephonist, the employers sought to change the Plaintiff's shift pattern to include late shifts, which she refused to work. The employers threatened termination if she did not comply. The Plaintiff resigned, claiming constructive dismissal. The employers appealed against the findings of constructive dismissal, unfair dismissal, and also raised an allegation of bias against the Tribunal chairwoman. The appeal hearing focused on the constructive dismissal and bias issues due to their potential to dispose of the case.

Legal Issues Presented

Whether the Plaintiff was constructively dismissed within the meaning of section 55(2)(c) of the Employment Protection (Consolidation) Act 1978.
Whether there was a significant breach of contract by the employers amounting to repudiation justifying the Plaintiff's resignation.
Whether the Tribunal chairwoman exhibited apparent bias affecting the fairness of the proceedings.

Arguments of the Parties

Appellants' Arguments

There was no actual breach of contract because the change in shift hours had not been implemented; at most, there could have been an anticipatory breach.
No final decision had been made regarding the shift change, as the Plaintiff was offered a meeting with the managing director to discuss the matter further, indicating the possibility of reconsideration.
For an anticipatory breach to occur, the employer's decision must be clear and final, which was not found here.
The employers' actions were an attempt to negotiate a new contract rather than a threat to breach the existing one; any threat was to terminate the contract by notice, which they were entitled to do legally.
The alleged bias arose from a purported remark by the Tribunal chairwoman after the hearing, suggesting a punitive attitude towards the employers for failing to settle, which undermined the fairness of the Tribunal's decision.
The Tribunal's reasons were criticized as cursory and incomplete, particularly for failing to address the employers' reasons for dismissal and the basis for quantifying compensation.

Respondent's Arguments

The opinion does not contain a detailed account of the Respondent's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Western Excavating (ECC) Ltd v Sharp [1978] Q.B. 761	Defines constructive dismissal as a significant breach of contract amounting to repudiation which the employee is entitled to accept.	The Tribunal correctly applied this principle to find that the employers had fundamentally breached the contract by changing shift hours, justifying the Plaintiff's resignation.
Norwest Holt Group Administration Ltd v Harrison [1985] ICR 668	Clarifies anticipatory breach in continuing contracts, allowing employees to accept repudiation before actual breach of executory obligations.	The court used this to explain that the Plaintiff did not have to wait for the actual change in hours to accept breach, supporting the Tribunal's finding of anticipatory breach.
Gunton v Richmond-upon-Thames LBC [1980] ICR 755	Provides dicta on anticipatory breach and employee's election to accept repudiation.	Referenced to support the legal framework for anticipatory breach in employment contracts.
Woods v W M Car Services (Peterborough) Ltd [1982] IRLR 413	Establishes that determinations of breach and its fundamental nature are factual questions for the Tribunal.	The Appeal Tribunal deferred to the Industrial Tribunal's factual findings on breach and repudiation.
Haseltine Lake & Co v Dowler [1981] ICR 222	Held that termination in accordance with contract terms does not constitute breach and thus no anticipatory breach exists.	Distinguished by the court as inapplicable because the contract in that case was to continue indefinitely without alteration, unlike the present case.
J S Winny & Co Ltd v Beaumond (EAT/701/82) (unreported)	Addresses procedural propriety in considering allegations of bias against tribunal members.	Considered but distinguished; the court found it appropriate to consider comments from tribunal members given the nature of the bias allegation.
R v Gough [1993] AC 646	Sets the test for apparent bias as whether there is a real danger of bias, focusing on possibility rather than probability.	The court applied this objective test and found the alleged remark insufficient to establish a real danger of bias.
Stephenson & Co (Oxford) Ltd v Austin [1990] ICR 609	Clarifies that a finding of constructive dismissal does not necessarily imply that the dismissal was unreasonable.	Referenced in the context of the Tribunal's consideration of reasonableness and compensation.

Court's Reasoning and Analysis

The court examined whether the employers had committed a fundamental breach of contract justifying the Plaintiff’s resignation as constructive dismissal. It acknowledged that no actual breach had occurred since the change in shift hours was not implemented, but found that the facts supported a finding of anticipatory breach. The employers’ decision to dismiss the Plaintiff if she did not accept the shift change was considered final, and the offer of a meeting with the managing director was not a genuine opportunity to negotiate but an attempt to persuade her to accept the decision.

The court rejected the argument that the employers’ threat to terminate the contract by notice did not amount to breach, emphasizing that the principle of constructive dismissal assumes the contract continues and that a threat to vary fundamental terms can constitute repudiation. The court distinguished relevant case law cited by the appellants and concluded that the Tribunal’s factual findings on breach and repudiation were well within its discretion.

Regarding the alleged bias, the court considered the timing, context, and nature of the purported remark by the Tribunal chairwoman. It applied the House of Lords’ test for apparent bias from R v Gough, focusing on whether there was a real danger of bias. The court found the remark, if made at all, was a casual comment made after the decision and insufficient to justify a finding of bias. It also noted the Tribunal’s decision was unanimous and that the alleged comment could not be attributed to other members. The court rejected the appellants’ criticisms of the Tribunal’s reasons as feeding suspicion of bias.

Holding and Implications

The court DISMISSED the employers’ appeal on the issues of constructive dismissal and alleged bias. The Tribunal’s findings that the Plaintiff was constructively dismissed due to a fundamental breach of contract and that there was no apparent bias were upheld.

The appeal was to be restored to address remaining issues not argued at this hearing. No new precedent was established, and the decision directly upheld the Tribunal’s findings, affirming the legal principles regarding anticipatory breach and the standards for apparent bias in tribunal proceedings.