Mr M Fullard v GC Glass & Glazing Ltd: 1300528/2024

EMPLOYMENT TRIBUNALS
Case No 1300528/2024
Between
Mr M FullardClaimantGC Glass & Glazing LtdRespondent
Date 9 June 2025

JUDGMENT

The claim of constructive unfair dismissal is not well founded and is dismissed. Approved by: JUDGMENT having been sent to the parties on 11 June 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:

REASONS

[1]The claimant’s claim for constructive unfair dismissal is not well founded and is dismissed.

Introduction

[2]The Claimant was employed by the respondent as a Glazier from 21 September 2015 until his resignation. The claimant contends the effective date of termination is 15 October 2023. The respondent contends it is 15 November 2023.[3]The claimant claims: constructive unfair dismissal contrary to section 94 and 98 of the Employment Rights Act 1996 and unlawful deduction from wages.[4]The respondent contests the claim in full.[5]I was presented with an agreed bundle of documents reaching 324 pages. I also had a witness statement bundle containing the statements of the Claimant and Mr Curtis Wiseman, for the respondent: Jennifer Ann Graham, William Mallon and Jon Paul Smart. I also received an additional document of one page from the respondent during the hearing. The claimant did not object to its inclusion in the bundle, so it was numbered page 325.[6]The claimant was represented by Mr Moore of counsel. Mrs Peckham (solicitor) represented the respondent.[7]Some of the witnesses were cross examined. Jon Smart had unfortunately died prior to the hearing. Jennifer Ann Graham did not attend. The Tribunal was informed by the respondent’s representative that she was in Croatia, but that they could not get a hold of her. The claimant did not object to me reding the statements of the two witnesses who did not attend but wished to make closing submissions on the weight to be applied to their evidence.[8]Each party summed up their case at the conclusion and both sides relied on written and oral submissions. I take into account the submissions made.[9]When determining the issues it became apparent that the claim for unlawful deduction from wages could not be specified. The claimant was given time to consider this claim. This claim was subsequently withdrawn by the claimant, and I dismissed it on withdrawal.

Issues

[10]I discussed the issues for determination with the parties at the start of the hearing. The parties were reminded of the list at various stages throughout the hearing.[11]The issues were: Unfair dismissal[12]Was the claimant dismissed?[13]Did the respondent do the following things:a. Delaying the disciplinary process.b. The poor quality of the disciplinary investigation.c. Ignoring him when he tried to make himself heard: no satisfactory response was given in reply to his emails during the suspension.[14]Did that breach the implied term of trust and confidence? The Tribunal will need to decide:a. whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; andb. whether it had reasonable and proper cause for doing so.[15]Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.[16]Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.[17]If the claimant was dismissed, what was the reason or principal reason for dismissal - i.e. what was the reason for the breach of contract?[18]Was it a potentially fair reason?[19]Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?[20]Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? a. If so, should the claimant’s compensation be reduced? By how much?[21]If the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct?a. If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?b. Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

The Law

[22]The test is not one of unreasonable conduct, but rather whether conduct of the employer amounted to a repudiatory breach of contract (Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27).[23]Four general conditions must be met for a constructive unfair dismissal:a. There must be a breach of contract by the employer.b. That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents.c. The employee must leave in response to the breach and not for some other, unconnected reason.d. The employee must not delay too long in resigning otherwise they may be deemed to have waived the breach.[24]In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the Court of Appeal made it clear that the test was not one of reasonableness/unreasonableness. It must be considered according to the terms of the contract.[25]The House of Lords in Malik v Bank of Credit and Commerce International SA [1997] IRLR 462 specified what amounts to a breach of the implied term of trust and confidence: ''The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”[26]Whether there has been a repudiatory breach of contract is an objective test: Leeds Dental Team Ltd v Rose [2014] IRLR 8.[27]A genuinely held subjective view of the employee that there has been a breach is insufficient (Omilaju v Waltham Forest London Borough Council [2005] IRLR 35).[28]The “last straw” test was confirmed in Omilaju v Waltham Forest London Borough Council [2005] IRLR 35. It was held that the final act may not be blameworthy or unreasonable, but it had to contribute something to the breach even if relatively insignificant.[29]The employee must leave in response to the breach (Walker v Josiah Wedgwood & Sons Ltd [1978] IRLR 105). This case was followed in Norwest Holst Group Administration Ltd v Harrison [1984] IRLR 419, where the EAT stated: ''… it is at least requisite that the employee should leave because of the breach of the employer's relevant duty to him, and that this should demonstrably be the case. It is not sufficient, we think, if he merely leaves … And secondly, we think, it is not sufficient if he leaves in circumstances which indicate some ground for his leaving other than the breach of the employer's obligation to him'.[30]The repudiatory breach or breaches need not be the sole cause provided they are an effective cause (Wright v North Ayrshire Council [2014] IRLR 4).[31]In Western Excavating case Lord Denning commented that the employee “must make up his mind soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.”[32]A later act/omission can revive earlier affirmed breaches (Kaur v Leeds Teaching Hospitals NHS Trust [2018] IRLR 833).[33]I was also referred to various cases in the skeleton arguments and submissions of both parties. I take into account the references made.

Findings of fact

[34]Whenever I reach a finding of fact I do so on the balance of probabilities, taking into account the relevant law, the bundle, the witness statements, the oral evidence before me and the submissions made.[35]In relation to the absent witnesses, I note that their absence means that their evidence in their statements or in the documents has not been the subject of challenge by the claimant or via questions from the tribunal. Further, the reasons for the absence of Ms Graham are unsatisfactory to say the least.[36]I read their statements and take into account their statements. However, the weight to be applied to them will be reduced due to the reasons above. I do not accept the claimant’s submission that simply because they are not here to face challenge that I must accept the claimant’s evidence. I will consider all the relevant evidence when reaching conclusions on the facts, whilst applying less weight to the witness evidence Ms Graham and Mr Smart.[37]The claimant was employed by the respondent as a Glazier from 21 September 2015 until his resignation. The claimant contends the effective date of termination is 15 October 2203. The respondent contends it is 15 November 2023. I will address this discrepancy at the relevant part of the chronology on my findings of fact.[38]The claimant’s role was one of surveying, fitting and being part of a 24 hour call out rota. This required him to work with other Glaziers on site.[39]At the time of his dismissal, he had a clean disciplinary record.[40]The claimant’s contract of employment, which he signed, specified the company handbook as being part of his terms and conditions.[41]The handbook sets out a disciplinary and grievance procedure and includes a non-exhaustive list of acts which may be considered gross misconduct such as using threatening or offensive language i.e. behaviour toward anyone including toward customers other employees or workers [117].[42]In 2016 the claimant was diagnosed with Guillain Barre Syndrome.[43]From 2021 the claimant’s line manager was Steve Taylor and the branch manager for which he worked was Jon Smart.[44]The claimant’s evidence is that from the start he and his colleagues did not get on with Mr Smart and that he took an instant dislike to those who disagreed with him. I have seen no evidence to support that prior to the events in 2023.[45]However, Mr Mallon conducted a grievance interview with Mr Smart on 9 October 2023. The notes of that are in the bundle. The notes include comments from Mr Smart such as: “Just because mark has been reprimanded he feels he needs to push back with something” [192] “You should see his surveys, the rubbish he hands in, he can't criticise anyone, is workmanship? Poor as everybody else. Pot calling kettle black.” “If we can't do anything with mark even with the evidence we have which I really can't believe is the case my position is untenable.” “I can't work with someone who is saying this.” “Mark has always been a problem to management here and it needs to be sorted. I can't have someone like that working for me.” “They have all been given Rams to complete and generic ROMs but to be honest they don't complete them. They've been told so many times.” “very easy to pin it on management isn't it. They will always make changes themselves and do it their way even after it has been priced.” “criticising people and the reality is none of them are great at their jobs some are better than others at certain things but in the main they all have their faults. Mark has costed a lot of money with his own mistakes and he just doesn't see it.” “Things don't get pushed under the carpet. Do I listen to him? No and he does know that. That's because of the rubbish that comes out of his mouth.” “I can't believe the lies that are coming out of his mouth just to cover him self.”[46]Mr Smart went on to give an example of how this job had failed previously due to the claimant not understanding what he was going claiming it was John's fault even though it was actually Martin Curtis who surveyed the job.[47]The comments made by Mr Smart about the claimant as his line manager, particularly in the context of no performance management or disciplinary sanctions in the past, are surprising. They also indicate a dislike of the claimant.[48]I find that Mr Smart did not have a good working relationship with the claimant prior to the events in 2023. Mr Smart’s dislike of the claimant appears to stem from the claimant being willing to raise concerns he had about the work of other people. Mr Smart appeared to believe that it was not for the claimant to raise these matters and it was his job to manage the branch.[49]The there is a note of an alleged meeting on page 143 of the bundle. The notes record that this is a meeting between the claimant and Mr Smart. The notes record that this took place on the 11th May 2023 and it was about the claimants behaviour toward Tom Hartop. The notes record the claimant saying that the branch was a toxic environment and Mr Smart saying it was all down to the claimant because he was causing the bad feeling and being vindictive to Tom. The notes record the claimant saying that Tom can't do the job and Mr Smart saying that he had no issue with Tom and he had been doing a good job. The notes also record the claimant saying the branch is becoming a joke because they were employing anybody. The notes also record that the claimant was happy with his management in Liverpool. The notes also record the Mr Smart advising the claimant that in no uncertain terms the harassment and intimidation towards Tom needs to stop and is classed as bullying and unacceptable behaviour that Mr Smart doesn't expect to be discussing again with the claimant.[50]The claimant says but this meeting never took place. He says at no point was he in a meeting and had a conversation with Mr Smart around this time or prior to it about his conduct in relation to Tom. Mr Smart's witness statement says that this conversation did take place in line with the notes on page 143.[51]I am therefore left with a conflict between the evidence of the claimant and the evidence of Mr Smart. I note that Mr Smart is not here for his evidence to be challenged but his absence is understandable. I note that the note of this meeting is not signed either by the claimant or by Mr Smart. I note however that the content of this note is extremely similar if not identical to the issues that the claimant agrees he was raising about Tom. The claimant’s own evidence is that he was raising these issues with Mr Smart around this time.[52]I therefore conclude on the balance of probabilities that there was a discussion that took place around the 11 May 2023 between Mr Smart and the claimant about the claimant’s complaints in relation to Tom. I also conclude on the balance of probabilities that Mr Smart had informed the claimant to stop making negative comments about Tom.[53]I don't find that anyone is being dishonest in relation to this meeting. I find it likely that memories have faded and the claimant probably had numerous discussions with Mr Smart about various things including his issues with Tom.[54]On the 20 July there is a note about an event which takes place. This note appears to be taken by Mr Smart about matters Stacey Parry witnessed. It appears that Tom came to Stacy Parry and explained that he was unhappy about the bullying and harassment he was receiving from the claimant. On that day Tom alleged that the claimant had pulled up, wound his window down and asked if he blew another job out and continued to insult Tom advising that he couldn't believe he still has a job and that he's an embarrassment to himself.[55]The note appears to suggest that Miss Parry advised Tom she would discuss it further with the claimant but the language in the note is ambiguous as to whether or not she did approach the claimant and raise this.[56]The claimant disputes that Miss Parry approached him and said this. Miss Parry is not a witness before the tribunal. I therefore find on the balance of probabilities that Miss Parry did not approach the claimant and did not raise this allegation at this stage.[57]The note goes on to say and this is written by Mr Smart as he says that this is a continuing theme and needs addressing urgently as it is not acceptable. He says in the note that he has spoken with Tom and advised as a business that we will take this further and will need to contact Tom for further feedback. It therefore appears that Mr Smart was offering Tom support in formalising his complaints about the claimant. I find on the face of it there is nothing inappropriate with Mr Smart's conduct in that respect. An employee is raising what appeared to be serious complaints of bullying and harassment against a colleague. The manager when being made aware of this is supportive in his desire to formalise this.[58]On 26th July 2023 the claimant was in work speaking to his colleagues. He received a telephone call from his line manager and asked him why he hadn't left the premises and to make himself scarce. The claimant concluded that this was because John Smart had told Stephen Taylor that there was a work-related conflict going on and that he wanted the claimant to leave the premises. The claimant had planned on speaking to one of the directors from London, Mr Sam Grant, who was present in the office that day. The claimant infers that Mr Smart knew or suspected the claimant wished to raise complaints with Mr Grant and was seeking to remove him from the office so he couldn't do so.[59]On 27th July the claimant spoke to Mr Grant and explained to him that he was unhappy with Mr Smart's management of the branch.[60]Also on 27th July Mr Smart suspended the claimant’s colleague, Curtis Wiseman, as Mr Smart alleged that he had refused to attend a job. A week before Mr Wiseman had been suspended, he had also contacted Mr Grant to complain about Mr Smart's management. Mr Wiseman gave evidence that had been allocated a job and had he taken it he would have gone over his hours. He said this was investigated and the allegations were dropped. His evidence was not contested by the respondent.[61]There is then a note in the bundle on page 156 which appears to be a note by Mr Smart of a meeting on the 31st July. The note records that he told the the staff in the branch that he was disgusted with the behaviour that was going on and the disrespect shown to members of staff and attitude which was not acceptable. He indicated that disciplinary procedures will be started because behaviours warrants that action. He highlighted a number of bullet points of things that the staff must or must not d. He also explained in the final two paragraphs that he is aware that staff have called directors with so-called complaints and that this was not the correct process. He reminded them that they need to raise an issue or grievance with him and if they still wanted to take it further to send it to HR. He also says that if the disagreement is frivolous, vexatious or malicious that staff could face action.[62]Taking all of that into account I conclude that Mr Smart was unhappy with the staff approaching directors with complaints about him in the branch. He was unhappy with the claimant and Mr Wiseman for doing that. I find that Mr Smart was keen to proactively manage the claimant and Mr Wiseman and that he took a disliking to both men.[63]The claimant attended work on the 28th of July but said he couldn't focus due to the conflict with his manager and the situation with his colleague. He said it he knew it was probable he was likely to be next. He then went off sick. I find that he went off sick because he was anxious that he'd made a complaint to the director and it was clear to him that if he did so he would be targeted by Mr Smart's active management.[64]The claimant attended the meeting on the 31st July. However, he did so not in work uniform because he was off sick. It is not in dispute between the parties that Mr Smart asked the claimant to leave. The claimant says that this was a simple get off the premises. Mr Smart's evidence is that he sent the claimant home because he was off sick and therefore he shouldn't be in attendance at work. Again, I take into account the reduced weight of Mr Smart’s evidence. I find that Mr Smart did tell the claimant to get off the premises. I found that it did so because the claimant was off sick, but I also find that his language and attitude was probably not sympathetic toward the claimant.[65]The claimant spoke to Jennifer Graham on the telephone on the 31st July 2023 and explained that he had conflict at work with Mr Smart and that he was concerned about his stress levels and his health particularly in light of his previous diagnosis. The claimant accepts that Miss Graham was understanding and kind during that call.[66]On the same day there was a telephone call between Mr Smart and the claimant. In that call Mr Smart asked the claimant for a sick note. The claimant contended he did not need to provide it as it was less than 7 days but Mr Smart was unpersuaded. I find that both parties raised their voice during that call. Clearly the claimant was unhappy with Mr Smart well before this call took place and clearly Mr Smart was also unhappy with the claimant before this call took place.[67]The claimant was off sick until the 1st September 2023 for depression due to stress at work. Welfare checks were conducted prior to the claimant's return to work by the respondent. I have seen a note of one of those on page 157 and in this the claimant again says that the respondent’s premises had been toxic since Christmas and that's why he wanted to speak to a director.[68]On the 1st September the claimant attended work in the morning and then received 2 calls in the morning from Miss Graham. She eventually spoke with him in the afternoon at 1:24 PM and suspended the claimant due to serious allegations of offensive language towards another of his colleagues. She advised it came under gross misconduct and referenced intimidating and belittling behaviour and an accusation of paedophilia. The note of this suspension meeting, that has been unchallenged by the claimant, shows that the claimant said that Tom needs to learn some fucking respect, he believed it was tittle tattle now and would like to sit around a table and talk it through.[69]This call was followed up by a letter dated the 1st September 2023 in which the claimant was suspended for potential gross misconduct for using offensive language against another colleague which involved intimidating belittling and references to paedophilia. There are two specific allegations raised. The first says that it is alleged that on the 20th July 23 you asked Tom Hartop if he blew another job out and could not believe he still had a job and that he was an embarrassment to himself. The second allegation is that on a Volkswagen job the claimant said to Tom Hartop that he had been to the Children's Hospital twice with this week and we all know the real reason you were there insinuating paedophilia. He was suspended on full pay as per the letter. He was told that that the respondent will keep the suspension as brief as possible and under review. He was told that he's not allowed to access the company's premises during that period and that they'll be conducting investigations.[70]There's a note of an investigation meeting with Steven Taylor. The 9th June Volkswagen job comment is put to him and he doesn't remember it at all and says that's something you would remember.[71]Mr Wiseman is asked again about the 9th July allegation and he says that there were only a couple of occasions when the claimant spoke to Tom and they did not include the allegation.[72]There was then a note dated the 1st September where Miss Parry recounts that a colleague Kurt Turner came into the office and said it's too much of a coincidence that the claimant was being suspended because he's upset John Smart and now all written allegations have been made that he's bullying Tom. He said that he thought John had had a word in Tom's ear and pushed him into making the complaint. He said the worst part is everything the claimant says about Tom is true he is a “fat smelly cunt”.[73]There is an e-mail from Mr Hartop dated the 14th September 2023 in which he sets out his allegations [164].[74]The claimant was invited to an investigation meeting by letter dated the 14th September 2023. He was told about the two allegations as per the suspension letter, but a third allegation was included specifying alleged offensive language used against Tom Hartop which involved intimidating belittling language and the referencing of paedophilia. Attached to that letter were the statements above and it says that the investigation meeting is to consider the claimant’s explanation for the above concerns and it says the meeting does not constitute disciplinary proceedings or in any way suggest the claimant was guilty of any offence, it goes to on to say that should the respondent not be satisfied with the claimant’s explanation it may lead to disciplinary action.[75]The investigation meeting with the claimant and Miss Graham takes place on 15th September 2023. The notes of that meeting are start on page 168. The claimant accepts that these notes of the meeting are accurate. During that meeting the claimant puts forward all of his responses to the allegations. It's clear that Miss Graham pushes him on his answers and seeks further information from him. The claimant’s account is that he wasn't even at work on the day of the first allegation and in relation to the second he didn't say it. He raised the issue of Tom not doing his job satisfactorily. He explained that he had raised that issue with Tom with his colleagues and with Mr Smart on numerous occasions.[76]The claimant raised a grievance dated 16th September 2023 by e-mail to the directors. In this he says that since the change of management in 2020/2021 the depot seems to have taken a downward spiral [181].[77]On the 18th and 19th September the claimant sent an e-mail on each day to Miss Graham in which he goes into more detail about the allegations against him. There is nothing in the bundle to suggest that the claimant was responded to in any meaningful way in relation to these emails.[78]The claimant's grievance was acknowledged by letter dated the 20th September 2023 and a meeting was held on the 21st September 2023 with Mr William Malan, the operations manager, and the claimant. The claimant disputes the content of these notes. The only dispute that he specified in evidence is that during this meeting he says he raised the fact that Tom had sent pornographic photos to his phone and that he'd complained about this and nothing had happened. He didn't recollect in his evidence what the response was from Mr Mallon. Mr Mallon's evidence was very clear that this point had not been raised and he said he would have remembered that being raised with him.[79]I find that the claimant did not raise this matter in the grievance meeting. His recollection of what happened when he raised that is unclear, yet Mr Mallon is abundantly clear that it was not mentioned further, it is not in the notes and it was not contained in the claimant’s written grievance.[80]In the grievance meeting it's clear from the notes that the claimant was able to discuss all of his grounds of grievance with Mr Mallon.[81]Mr Mallon investigates the grievance by speaking to Mr Smart. There are notes of that meeting on the 9th October 2023. I've already highlighted the language used by Mr Smart in that meeting as being surprising and full of emotion toward somebody that he was managing even if not directly. Mr Mallon told the Tribunal in evidence that Mr Smart was off sick at this point and indeed was off sick for the very reasons that caused his untimely passing. Mr Mallon says that Mr Smart's comments need to be considered in light of the fact that he was frustrated about having to come into work when he was off sick with a serious illness to deal with this matter. I do take that into account, and I accept that that is going to have influenced his frankness in the meeting. However, I do find that Mr Smart uses language of the kind that Mr Mallon could have interpreted as suggesting that Mr Smart's view of the claimant was tainted.[82]The outcome letter is on page 200 is dated the 20th September 2023. The vast majority of the grounds were not upheld. One ground was found to be partially substantiated and that is that the management team had roles that they cannot fulfil. Mr Mallon found that there were certain elements in the branch processes that needed to be addressed to allow job roles to be fulfilled correctly and that he didn't think it was a capability issue. It is not entirely clear to me what this means.[83]The respondent says they then sent a letter to the claimant dated the 13th October 2023 which is on page 202. The claimant says he never received this letter. This letter invites the claimant to attend a disciplinary hearing to consider the allegations of gross misconduct. In this letter we only have two allegations: the overarching allegation of alleged offensive language and the second allegation is the allegation of the 20th July 2023. The allegation relating to paedophilia appears to have disappeared. I note that the letter does not have a header or a footer and there wasn't an electronic signature. I'm asked by the claimant to find that this letter has been made-up/faked in order to mislead the Tribunal and I'm pointed to another letter in which there is a header and footer and an electronic signature. However, there are other letters in the bundle which do not contain headers and footers or electronic signatures. And I note specifically in this letter that there are square brackets for matters to be inserted. I therefore find that this letter is a draft and that was never sent to the claimant. I do not find that it was created to mislead the Tribunal.[84]The claimant resigns by e-mail dated the 15th October 2023 on page 204. He says that he's considered how he has been treated and how long this has dragged on and has affected his mental health. He gives one month’s notice and asks to collect his tools.[85]His resignation was acknowledged by a letter dated 18th October 2023. In this letter the respondent says that he was resigning with immediate effect. This is clearly not what the claimant says in his e-mail.[86]In an e-mail to the claimant on the 19th October 2023 Dennis Warrell, a director of the company, says that he will be meeting with the co-directors to conclude the actions which will be implemented into the branch. He doesn't say whether those are the ones that have come from the disciplinary outcome. He also says that the claimant’s job will be kept open for him if he has a change of mind.[87]On page 208 there is a letter dated the 19th October 2023 in which the claimant’s suspension is lifted and the allegations reduced from gross misconduct to misconduct. It then goes on to say that the investigation revealed that there was no evidence to back up the alleged reference to paedophilia and there was no evidence to back up the other allegation of the 20th July. It doesn't say what allegations were left that would amount to misconduct.[88]The claimant does appeal the outcome by e-mail dated the 15th October 2023 but then elected not to continue with that process.[89]The evidence in relation to the effective date of termination is confusing. Firstly, the claimant resigns with one month notice in his e-mail: that is clear to the Tribunal. Secondly the respondents email writing that it is with immediate effect. Mr Mallon couldn't assist the tribunal as to whether or not that was a typographical error. There was then a conflicting letter lifting the claimant suspension. The claimant did not return to work other than to collect his tools from the 15th October 2023. But it is clear from the pay slips that the claimant was paid up to and including the 15th October 2023. The actions of the parties indicate that both their intentions were that the resignation took immediate effect. I therefore conclude that the effective date of termination is the 15th October 2023.

Conclusions

[90]Was the claimant dismissed? Did the respondent do the following things: Delaying the disciplinary process.[91]The process objectively did not take a significant amount of time. The initial allegations clearly came to the respondent’s attention on the 20th July 2023. It wasn't until the 14th September 2023 that Mr Hartop fully set out his allegations. However, the claimant wasn't suspended immediately on receipt of the initial allegation in July. At this stage it was the one allegation and then the claimant did go off sick around a week later.[92]A perfect employer might have approached this faster and suspended the claimant sooner. But I do not consider a delay of a few days after the initial shorter allegation was made to be significant.[93]Further the decision to not suspend the claimant whilst he was off sick might have upset the claimant as he now says in his evidence. However, I find that any reasonable employer would have waited to suspend the claimant until he returned to work after a short period of illness. I find that even more so when the claimant is off work with depression due to stress at work.[94]I don't consider the fact that he wasn't suspended first thing in the morning to be a significant point. The claimant clearly had been allocated a job and the respondent had been trying to contact him that morning but waited until he was on his own as opposed to in front of a colleague. That is a reasonable approach for an employer to have taken.[95]There is then some investigation that takes place. An investigation meeting takes place with the claimant on the 15th September. The claimant submits his grievance on the 16th September and the respondent puts the disciplinary process on hold.[96]Again a reasonable employer could have taken the decision to have put that on hold and indeed the claimant doesn't complain about that decision at any stage.[97]The grievance outcome is delivered on the 20th September 2023 and it looks like the respondent was gearing up to invite the claimant to a disciplinary hearing around the time that the claimant resigned on the 15th October 2023. During that entire period the claimant was suspended and at home.[98]Therefore, in terms of the timeline it is around 3 months from the initial allegation to the claimant’s resignation when the disciplinary process was due to start. Taking into account all of the events that took place I do not consider this to be delay or delay of any reasonable length of time.[99]I therefore do not find that objectively the length of the grievance was behaviour calculated to or likely to cause a breach of the implied term of trust and confidence.[100]The poor quality of the disciplinary investigation.[101]I am asked to consider various aspects that the claimant says renders this disciplinary investigation of poor quality. I will take those in turn, but I also acknowledge that I am to consider them as a whole.[102]In relation to the inconsistency in how a formal investigation process was used against the claimant and an informal process against Mr Hartop for sending inappropriate images, it is clear that the respondents did address Mr Hartops photographs with him, and he was told to stop. The claimant doesn't give any evidence that this behaviour continued after that date. The claimant was faced with, on the face of it, serious allegations. Every act of misconduct or misbehaviour is something an employer needs to consider on its facts. There needs to be consistent treatment, and any reasonable employer would treat employees consistently. However, the two situations are not on all fours: they are distinctly factually different.[103]Further at no point has the claimant suggested that his behaviour or allegation should have been treated less formally. He alleges that it should not have been brought forward at all because he simply didn't do what he's been accused of.[104]I find the difference in treatment it is something any reasonable employer could have done in the factual circumstances of this case.[105]In relation to the clarity of allegations, the letters themselves are somewhat inconsistent. And there is some information lacking on the initial letters such as the date of the second allegation. But it this clear throughout the process that the claimant had enough information in relation to the allegations that he was able to respond to them in detail. I don't consider the discrepancies in the information to be so significant that would suggest the investigation itself was poor.[106]Mr McLean was asked about an incident on the 4th July 2023 in the investigation meeting. It is clear that there is a discrepancy between the “blown yourself out on another job” comment and whether that took place on the 4th or the 20th July. But it is quite clear in the notes that Miss Graham raises that it is the 4th July. I do not consider that error to be significant. It is clear the claimant was not confused at all in the meeting by the event that they were discussing.[107]I've already addressed the suspension of the claimant halfway through the 1st working day. I don't consider that to be a failing on behalf of the respondent.[108]I don't consider one error in relation to one date to be a significant issue rendering the investigation poor.[109]The claimant alleges that the failure to come to a reasonable conclusion at an early stage and that the evidence weighted heavily toward the claimant and unreasonably continued after a reasonable end point rendered the process poor.[110]The difficulty with this argument is that a serious allegation had been made verbally and then in writing by Mr Hartop. The serious allegation included dates and events. The claimant disputed that those events occurred and indeed said he wasn't present for one of them. We have evidence before the respondent after the investigation meeting, at the very latest, that Mr Taylor didn't recall hearing the 9th June comment and said it is something that he would have remembered. Mr Wiseman also said he didn't hear that comment being made. The claimant had disputed it was made. What the respondent was therefore left with was two serious allegations, one of which being contested by the claimant and two other people, and the other the claimant was saying he wasn't present for.[111]Considering that the allegation still remained I cannot find that no reasonable employer would have ended the process there and then. It is still the claimant word against Mr Hartop albeit more evidence existing on the claimant’s side. It was not an obviously overwhelming amount of evidence on one side.[112]I therefore conclude that simply not ending the process there and then does not automatically render the process poor.[113]I therefore do not find that objectively the failures in the process were calculated to or likely to cause a breach of the implied term of trust and confidence.[114]Ignoring him when he tried to make himself heard: no satisfactory response was given in reply to his emails during the suspension.[115]The claimant sent two emails during the investigation stage to Miss Graham, one on the 18th September and the other on the 19th September. The respondent did not respond to either these emails. It is clear that the emails weren't really asking specifically for a response. The emails were providing Miss Graham with further information for her to take into account in her investigation. A perfect employer may have emailed the claimant back and acknowledged receipt of those emails.[116]When I asked the claimant about this in his evidence it was clear that what he wanted wasn't an acknowledgment per say, it's that he wanted Miss Graham to read the content and realised there was nothing in these allegations and drop the matter. Taking all of that into account I do not consider that the claimant was ignored when he sent these emails.[117]I therefore do not find that objectively the failure to respond directly to those two emails was behaviour calculated to or likely to cause a breach of the implied term of trust and confidence.[118]The respondent’s conduct has not been without fault. There are certainly errors present in the process. However, I do not find that any of these errors or decisions taken were deliberately done to damage or destroy the relationship between the claimant and the respondent.[119]I also find that the respondent’s conduct did not fall below a standard demonstrating that it was likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.[120]I therefore find that there has been no breach of the implied term of trust and confidence.[121]The claim therefore fails and I therefore do not need to consider the other issues in this case. Approved by: