Appeal No.	 EAT/509/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 November 2001

Before
HIS HONOUR JUDGE D M LEVY QC
MRS A GALLICO
MR R SANDERSON OBE

MR W ELLIS	APPELLANT

CHEMETALL LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS ANNA THOMAS
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

JUDGE D M LEVY QC:

1	This is a hearing of an appeal by Mr W. Ellis (“the Appellant”) from a Decision of an Employment Tribunal sitting in Birmingham on 6 November 2000 and 29 January 2001.  The issue before the Tribunal was whether or not the Appellant was constructively dismissed.

2	In Extended Reasons, sent to the parties on 6 March 2001, the Tribunal unanimously held that he was not constructively dismissed and the complaint was unsuccessful.  They had earlier given Summary Reasons on 13 February for their decision.  In paragraphs 3 and 4 it was set out in short why they had agreed as they did:  

“3  The applicant agreed on 18 January 2000 that he would work as joint manager of the plating division with responsibility for the technical side of the business.  On 2 February 2000 he showed by his conduct that he wished to resile from that agreement and [on] 7 February 2000 he resigned.
4  We find that the respondents did not breach the applicant’s contract of employment in the period after the said agreement.  We find that the reason that the applicant resigned was that he regretted the agreement he had made and that it was not caused by any breach by the respondent.”

3	There was an application for review of that decision, which was dismissed with reasons given on 16 May 2001.  Between those times the Appellant had lodged a Notice of Appeal.  Unusually, instead of putting the grounds consecutively after paragraph 6 of the printed form, he put separate grounds of appeal on separate copies of each printed form.  He has had the advantage today of Ms Thomas appearing under the ELAAS scheme on his behalf on this ex parte hearing of his appeal.  She has helpfully gone through the grounds of appeal with him in advance and with us during the hearing.

4	The first ground of appeal is not pursued but in it is seen the grounds of what happened elsewhere which led to the appeal.  The first ground of appeal was against a ruling by the Chairman that evidence should be heard notwithstanding the late exchange of Witness Statements by the Respondents.  That was something which the Chairman was clearly entitled to do but later in the day (and this is another ground of appeal) a complaint is made that over the luncheon adjournment the Chairman ordered the Appellant to show to the Respondent the notes he had made of the meetings in question.  He not only handed over those notes, he says, during the luncheon adjournment but the notes he had made that morning.  He complains that he was disadvantaged in this way because not only did he not have the luncheon adjournment to consider further progress of the case but also the Respondents had the opportunity of seeing the notes he had made that morning.

5	No complaint of this was made to the Tribunal later at that hearing.  We heard that the Tribunal hearing lasted well over a day.  We think that if, as he says, the Appellant did hand over his notes of the morning’s hearing and if that did put him to some disadvantage, if he had mentioned it to the Chairman that would have been addressed.  We appreciate the difficulties which an Appellant has appearing in person but if he makes known difficulties we are sure they will be considered by the Chairman.  If he does not make them known, he cannot complain later.  In our judgment this point of appeal is without merit.

6	The other points made are really against the factual findings of the decision.  The Appellant says that there were various grounds of disagreement between him and the management because somebody had been put in his place to do his job.  He complains that all his various grounds of complaint are not set out in the Notice of Appeal.  He says in essence that on 18 January he was not willing to agree to work as alleged by the Claimant under a new agreement but that he was working for a trial period whilst his complaints were being considered.

7	The findings of the Tribunal are against what he says.  We pick it up in paragraph 10 of the Extended Reasons.  Earlier it set out what the Respondent was doing in a restructering process:

“10  When the applicant heard the details he was very upset.  He expressed himself clearly at that time, probably in the way that he has done in conducting this case before us, he is obviously a forthright person who is not afraid to speak his mind, and the joint managing director of the new merged group was understandably very concerned.  The managing director realised that there had been a failure in communication and that the applicant was upset.  He was anxious not to lose the applicant’s services.  As a consequence there was a further meeting which took place on 18 January 2000.  At that meeting a revised scheme was discussed and put forward under which the applicant and the new sales appointee were to be the joint managers of the department.  The applicant was to be responsible for the technical side and the new person was to take charge of the sales. …”

The next three sentences are very important and we will emphasise them.

“The applicant agreed to those changes.  He has accepted in his evidence that there was an agreement and that he did agree to work with the new appointee and to train the new appointee in the technical aspects of his task.  That agreement was published the following day at a managers meeting.  Unfortunately, after the agreement the applicant began to have second thoughts. … .”

8	Thereafter, there was an outburst by him on 2 February 2000; and on 4 February he sent an offensive memo to the new appointee. On the following Monday, the Managing Director asked him on the telephone what his position was.  He refused to state what he felt and later in the day he sent in his letter of resignation.  Paragraph 12 of the Extended Reasons reads:

“12  We have heard and considered the submissions of both parties and we accept the submissions made by the respondents.  We find that the respondents did nothing after 18 January which could possibly be regarded as a breach of contract.  We find the applicant resigned on 7 February 2000 because he changed his mind about the agreement which he had made on 18 January.  We do not accept his contention that the new sales appointee attempted to undermine his position as a joint manager, and we do not think that that was the cause of the applicant’s resignation.  We think that the applicant resigned because he did not wish to continue with the agreement that he had made.  It was not the fault of the respondent.”

9	Appeals are only allowed to go to a full hearing before this Tribunal if a panel such as this is satisfied there is an arguable point of law to go forward.  Having carefully considered all the submissions put forward before us by Ms Thomas, on behalf of the Appellant and the contents of the Extended Reasons, we are satisfied that there are no grounds of appeal which are arguable.  Although not every complaint that the Appellant may have made prior to 18 January 2000 is recited in the Tribunal findings, we are satisfied that there was an agreement made on 18 January and the facts as found as to what happened thereafter entitled the Tribunal to come to its decision.

10	In these circumstances we dismiss this appeal at this stage.