Appeal No.	 EAT/71/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 June 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR L D COWAN
MRS T A MARSLAND

MR K PIMLOTT	APPELLANT

T N T UK LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR HODGKINSON
(ELAAS)

	

		JUDGE CLARK:   The Appellant, Mr Pimlott, commenced employment with the Respondent TNT UK Ltd  as a night Trunk Driver in August 1992.  He was promoted to Traffic Supervisor in October 1994 and he remained in that position until his resignation effective in October 1996.

	By an Originating Application presented on 30 December 1996 he complained of unfair dismissal, unlawful deductions from his wages and breach of contract.  The claims were resisted and came before an Industrial Tribunal sitting at Liverpool on 22 May and 2 September 1997.  Following a meeting in Chambers held on 9 September, the Industrial Tribunal promulgated its reserved decision with extended reasons on 27 October 1997.  All claims were dismissed.  Against that decision the Appellant now appeals.  

	This is a Preliminary Hearing held to determine whether the appeal raises any arguable point or points of law to go forward to a full appeal hearing.  Today Mr Pimlott has the advantage of representation by Mr Hodgkinson under the ELAAS pro bono scheme.  It will be convenient to consider his submissions in support of the appeal under two headings.

Unauthorised deductions from wages
	The Tribunal found that after a period of absence from work due to illness, the Appellant returned to work on 15 April 1996, and that in his absence, due to administrative errors, substantial deductions of £250 and £350 had been made from his pay.

	It was the Appellant’s case that in addition to those deductions a further sum of £450 was deducted on 14 June 1996.  We see from the Notice of Appearance that it was the Respondent’s case that errors were made but that the matter was resolved between the parties on 19 August 1996.

	The Tribunal concluded that following operation of the grievance procedure the financial questions were resolved.  They observed however that the Respondent could have dealt with this matter rather better.  The point taken by Mr Hodgkinson is that due to the delay in resuming the hearing between May and September 1997 the Industrial Tribunal had overlooked the Appellant’s claim to a further £450.  We cannot accept that submission.  Although delays in completing an Industrial Tribunal hearing are unsatisfactory, that fact will not of itself ground an appeal.  In our judgement it is plain that the Tribunal preferred the Respondent’s case to that of the Appellant.  Hence the claim for unauthorised deductions was dismissed.  We cannot interfere with that factual finding.

Constructive dismissal
	Mr Hodgkinson submits that although correctly directing themselves in accordance with the Court of Appeal decision in Western Excavating ECC Ltd v Sharp [1978] IRLR 27, they failed to consider whether the Respondent was in fundamental breach of the contractual implied term of mutual trust and confidence, Pederson v Camden L.B.C. [1981] ICR 674.  In particular they failed to consider whether the unsatisfactory operation of the grievance procedure, as they had found it to be in relation to the deductions issue, amounted to a breach of that implied term, and if so, whether it was a fundamental breach; see for example W A Goold (Pearmark) Ltd v McConnell [1995] IRLR 516.

	We think that that submission overlooks the way in which the Appellant put his case on causation below.  It is well established that the employee must resign in response to the repudiatory breach relied upon, see Walker v Josiah Wedgwood [1978] ICR 744.

	In his letter of resignation dated 27 September 1996 the reason given by the Appellant for his resignation was the Respondent’s handling of his recent disciplinary.  That point was further developed in his Originating Application.  It was that issue upon which the Tribunal concentrated in its reasoning in relation to the question of constructive dismissal and concluded that the disciplinary proceedings, culminating in a final written warning, were properly carried out.  Hence there was no breach of contract and no constructive dismissal.  That is essentially a finding of fact with which we cannot interfere, see Pederson.

	In these circumstances we have concluded that this appeal raises no arguable point of law and it must be dismissed.