Veitch Penny LLP - Exeter | Crediton, Devon

Case

Mr P J Drain v Pinguin Foods UK Limited
Employment Appeal Tribunal - (18 March 2005)

Issues

(1) Unfair Dismissal
(2) Constructive Dismissal
(3) Reasonableness of employee’s resignation

Facts

Mr Drain had been employed as a packing engineer. Allegations of discontent had been made about Mr Drain’s conduct, which came to a head in June and July 2003. A meeting was arranged by the packing manager, a Mr Thrower, to determine what was going on. Mr Drain took the view that the meeting was a disciplinary meeting, and following the adjournment of that meeting requested a compromise agreement. This was agreed and Mr Drain went to obtain independent legal advice upon its terms.

During the course of that advice, Mr Drain changed him mind about the compromise agreement. In view of this the company asked for its papers to be returned and a dispute arose as to the location of a draft reference prepared for Mr Drain. He then alleged that he had been assaulted by Mr Thrower when searching for the reference. The company disagreed with Mr Drain’s view of the situation. It alleged that it had requested a search of Mr Drain, who had refused and left the meeting during working hours.

In response, the company arranged a disciplinary meeting in connection with his refusal to be searched. Mr Drain requested that the meeting be adjourned so that he could make written representations. The meeting was adjourned for five days later, but Mr Drain then wrote to the company stating that to hold the meeting would be “out of order” and that he intended to take no part in it. The company adjourned the meeting again. On the date of the meeting, Mr Drain tendered his resignation.

He then made a complaint of constructive unfair dismissal. At first instance, the tribunal were sympathetic to Mr Drain, but dismissed his claim. They found that he had brought the event upon himself, and that no repudiatory breach on the part of the company had been established.

Mr Drain appealed.

Decision

The Employment Appeal Tribunal (EAT) dismissed his appeal.

Comments

Although the Tribunal’s original decision was lacking in some aspects, the original decision was correct in law. At the heart of Mr Drain’s claim was his allegation that his employers had breached the implied term of mutual trust and confidence. The Tribunal had considered whether the employers conduct could amount to a breach of contract, and the EAT agreed with them in their conclusion that it did not.

Rachel Bickle – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it