Messer & Anor v Balfour 2000 Ltd

Permission to appeal should be refused where the employment tribunal’s findings disclose no real prospect that an alleged change to working arrangements amounted to a fundamental breach of contract. A contractual term requiring managers to work hours laid down in accordance with branch trading hours may permit extended opening hours, provided the facts do not establish an increase in weekly hours, reduced remuneration, or another fundamental contractual breach. The Court of Appeal must proceed on the tribunal’s findings of fact and cannot substitute its own view merely because proposed arrangements appear harsh.

Mr and Mrs Messer, joint managers of a newsagent’s shop, claimed constructive unfair dismissal after the employer proposed extending the shop’s opening hours. The employment tribunal held that the proposals did not fundamentally breach the employment contract and that the applicants had resigned voluntarily. The Employment Appeal Tribunal dismissed their appeal on 20 June 2001.

The applicants sought permission to appeal, arguing that the proposals required additional unpaid work, or contemplated replacing one of them, and were unlawful under working-time and minimum-wage legislation. The central issue was whether the proposals amounted to a fundamental breach of contract and therefore constructive dismissal under Employment Rights Act 1996, section 95(1)(c).

1. Permission refused. Lord Justice Keene held that there was no real prospect of a successful appeal.
2. The employment contract was expressed in wide terms. Its hours-of-work clause contemplated that managers would work hours laid down by the company in accordance with the branch’s trading hours, with salary taking account of additional hours. The proposed extension of opening hours therefore did not, on the tribunal’s findings, itself establish a breach of contract.
3. The tribunal found that the applicants were not required to work more hours each week, although they might sometimes need to work until 6 pm on weekdays and on Sunday afternoons if other staff could not provide cover. The employer had proposed reorganising staff rotas and had discussed employing an assistant manager as one of several alternatives. The tribunal found that this was not an attempt to remove Mrs Messer.
4. The tribunal also found that agreement had effectively been reached about resolving the difficulties, including an additional £9 per week in the wage budget. Those were findings of fact based on the evidence. The Court of Appeal had to proceed on that basis and could not substitute different findings.
5. There was consequently no realistic basis for concluding that the employer was in fundamental breach of contract. Since the appeal had no real prospect of success, permission was refused. Order: application refused.

• Court of Appeal (Civil Division): Lord Justice Keene refused permission to appeal on 21 November 2001.
• Employment Appeal Tribunal: dismissed the applicants’ appeal on 20 June 2001.
• Employment Tribunal, Southampton: held that there was no fundamental breach of the employment contract and that the applicants had resigned voluntarily.