Appeal No.	 EAT/470/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 October 1997

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR E HAMMOND OBE
MR R H PHIPPS

MR M THOMPSON	APPELLANT

ACACIA MEATS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT	

	MR JUSTICE MAURICE KAY:   There is listed before us today a preliminary hearing of Mr Thompson’s appeal against a decision of the Industrial Tribunal sitting at Bury St Edmunds on 17th February 1997. On that occasion the Industrial Tribunal found that Mr Thompson had not been dismissed. He was claiming unfair dismissal on the basis of a constructive dismissal. The decision was promulgated and sent to the parties on 25th March 1997.

	We have seen a letter dated 14th October 1997 in which Mr Thompson informed this appeal tribunal that he would not be attending today, but asked us to take a number of things into account. We have also looked carefully at his hand-written Notice of Appeal.

	He had been employed as an accounts clerk by the respondent company, Acacia Meats Ltd. A point arose when his employers became dissatisfied with an aspect of his work. In July 1996 he was off ill with viral meningitis, and it was during this period that the employers believed that they had discovered a number of errors in his work. 

	When he returned to work in October 1996 he was spoken to and was told of a new system as to who was to do what work. He was to report to Mr Molineaux. The reaction of Mr Thompson to that seems on the finding of the tribunal to have been reasonably compliant. However, he is described elsewhere as a person who by his nature volatile. Be that as it may, on this occasion a point was reached when he left the employment of Acacia Meats by way of resignation. 

	The entire issue before the Industrial Tribunal was whether that was to be treated as a dismissal under s.95(1)(c) of the Employment Rights Act 1996. For Mr Thompson to prove that it was to be treated as a dismissal he would have to satisfy the Industrial Tribunal on the test set out in Western Excavating v Sharpe [1978] IRLR 27. It is apparent to us that the Industrial Tribunal correctly identified the legal principles by reference to that case and to the statutory provision.

	It is clear to us also, that Mr Thompson faced considerable difficulties in this case because he chose to call some witnesses from his place of work. They appeared as applicant’s witnesses but when certain things were put to them by Mr Thompson it is clear that their evidence assisted the employers far more than it assisted him. For example, Mr Cheverton disputed that Mr Molineaux “had it in” for the applicant, and added “I have never witnessed any animosity between you”. Irene Ward, who by the time of the hearing had retired from the company, denied that Mr Molineaux had behaved in any way inappropriately towards the applicant or shown any animosity towards him. She added that the applicant had made no formal complaint about his treatment. The tribunal referring to Mr Molineaux said:

“We accept his evidence, that he was totally unaware that the applicant was unhappy with his treatment of him.”

	We have not referred to all the passages of the factual finding in the decision which favoured the decision of resignation rather than constructive dismissal. It is plain to us that on the entirety of the evidence the Industrial Tribunal was entitled to reach the decision which it did. It is equally plain to us that it correctly identified and applied the appropriate legal principles.

	Since this Employment Appeal Tribunal only deals in points of law, we have come to the unanimous conclusion that no arguable point of law is raised by Mr Thompson’s documents. In those circumstances his appeal is hereby dismissed.