Employment Judge D Gray-JonesMr J Raizon (instructed by Counsel) for claimantMr J Franklin (instructed by Counsel) for respondentDate 24 November 2025
JUDGMENT
[1]The Claimant was not a disabled person within the meaning of s.6 Equality Act 2010 at the time of the alleged discrimination.[2]The complaints of discrimination arising from disability, failure to make reasonable adjustments and harassment related to disability are therefore dismissed.[3]The Claimant’s remaining complaints of unfair dismissal and wrongful dismissal remain listed for a hearing. A case management order will be issued separately.
REASONS
[1]On 14 November 2023 the claimant sent the respondent a resignation letter terminating his employment. He had been employed by the respondent as a “groundworker” for over 9 years, working at a variety of construction sites.[2]The letter stated that the claimant was resigning due to an untenable position that meant he did not believe he could continue to work for the respondent. It said this was due to the following three things-- an email from Mr Whistler (a senior manager) dated 20 October 2023 in which Mr Whistler had attempted to discipline him “without a fair and proper process”; an incident at Borden site on 8 November when site manager Dave Jerome said to him (in relation to his capacity for the work he was doing that day) “if you can’t do it then Fuck off”; a failure by Alan Hart (a contract manager) to tell him where to report for work after a phone conversation on Thursday 9 November, when Mr Hart said he would speak to Mr Whistler and Mr Thatcher (another senior manager) and get back to him, but did not do so.[3]The claimant considered that he had been constructively dismissed unfairly. He notified ACAS on 29 January 2024, naming the respondent as prospective respondent. An Early Conciliation Certificate was issued on 11 March 2024.[4]By a claim form presented on 9 April 2024 the claimant brought claims for: constructive unfair dismissal (pursuant to sections 94, 95(1)(c) and 98(4) of the Employment Rights Act 1996), wrongful dismissal (i.e. breach of contract relating to notice,pursuant to the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994), various acts of disability discrimination.[5]The respondent resisted the claims in a response dated 20 January 2021.[6]On 15 August 2024, EJ Livesey held a Telephone Case Management Preliminary Hearing at which the claims and issues were discussed. The resulting Case Summary attached to his CMO dated 15 August 2024 lists the issues in the claims. EJ Livesey listed the case for a 4-day final hearing at Southampton ET before a judge sitting with members. He ordered that the question of disability (the claimant alleged he had a cardiac condition, a lung issue and a bad back) should be determined at a preliminary hearing on 14 December 2024.[7]At the preliminary hearing on disability EJ Gray-Jones gave an oral judgment deciding that at the time of the alleged discrimination the claimant was not disabled within the meaning of section 6 of the Equality Act 2010. A formal written Judgment recorded that decision and dismissed the disability discrimination claims. That decision is conclusive for the purposes of these proceedings.[8]The result is that the only surviving claims were those for constructive unfair dismissal and wrongful dismissal. EJ Gray-Jones reduced the time allocation for the final hearing to 3 days and ordered that it be heard by an employment judge sitting alone. Otherwise, EJ Livesey‘s original CMO continued to apply for the purposes of the final hearing. Form of hearing, documents and procedural matters[9]The hearing was conducted in person before me at Southampton Employment Tribunal. There were no requests for reasonable adjustments.[10]The claimant was present throughout the hearing, represented by Miss Minto, He gave sworn evidence, as did his sister Mrs Jeffs. The respondent was represented by Mr Wheaton, He called as witnesses Mr Whistler and Mr Thatcher (senior managers/directors of the respondent) and Mr Jerome (a site foreman), who all gave sworn evidence.[11]I was provided in advance of the hearing with the witness statements from the witnesses mentioned above and a hearing bundle of 167 pages.[12]At the start of Day 1 (16 June) I discussed a few preliminary matters with counsel: We discussed the Issues set out in the CMO. Issues 4 to 7 and 8.5 to 8.13 (disability, the three disability discrimination claims and related remedy issues) were no longer relevant owing to the dismissal of the disability discrimination claims. I accepted the view put forward by both counsel that Issue 1 (time limits) was also no longer a live issue. That was because the surviving claims were presented on 9 April 2024, within the period allowed by section 123 of the Employment Act 1996 (3 months plus the Early Conciliation extension from the date of dismissal). We discussed the provisional timetable set out in paragraph 4 of EJ Livesey’s CMO. It was agreed that oral evidence would be completed by the end of Day 2 (17 June) or very early on Day 3 (18 June). In order to make good use of the limited reading time allowed by the provisional timetable, I invited counsel to draw my attention to any specific documents they wanted me to focus on, which they did.[13]At the start of Day 2 I admitted, as late evidence, four documents from the respondent, which Mr Wheaton told me related to matters referred to in oral evidence on Day 1. These were-- A cleaner and fuller copy of page 121 of the bundle (a text message from the claimant about leaving Bordon site 45 mins early due to a long drive home). The new copy shows the date it was sent (8 August 2022) and that the chain of texts started with one from Mr Hart, a contract manager, telling the claimant where to go to work the next day. Three weekly “resource allocation” sheets from the weeks commencing Monday 14 August 2023, Monday 23 October 2023 and Monday 6 November 2023. These were working documents used each week by senior managers to keep track of who was working at which site and what heavy machinery was at each site.[14]I allowed Miss Minto’s request for a short adjournment to read the three resource allocation sheets. She did not object formally to their admission, but she expressed reservations as to(a) their accuracy and reliability (not least because of the muddle described in paragraph 15 below),(b) the evidential weight they could properly be given (given the delay in producing them, late, on Day 2 in the middle of the parties’ oral evidence) and(c) the fact that the respondent had not produced all the sheets for the weeks referred to in the document at page 87 of the bundle (showing the claimant’s attendance record and where he was working between December 2022 and November 2023). I agreed to consider her points when looking at the three documents.[15]There was a muddle about the resource allocation sheet for the week commencing 14 August 2023. The version given to Miss Minto before the start of Day 2 was different from the version Mr Wheaton offered the Tribunal. Some differences were potentially material, including in the entries indicating where the claimant was allocated to work on different days. At first Mr Wheaton was unable to explain the situation, but he took instructions and gave me the following explanation.[16]Mr Wheaton said that the nature of the respondent’s business in preparing construction sites for buildings was such that decisions about resource allocation might need to change regularly in the light of events and changing circumstances. These sheets were key working documents to help Mr Thatcher, and the weekly resource meetings, to keep track of decisions as to who was working at each site, what they would be doing, and with what machinery. The sheets were created in advance of weekly resource allocation meetings and Mr Thatcher would make corrections to the initial version of the sheet in question during the week as decisions were made from day-to-day. The version given to Miss Minto was an earlier version of the same document as had been offered to the Tribunal. It had been produced by Mr Thatcher from his own records while the other version had come from the respondent’s records. Any changes were made during the week in question and there was no question of anything having been altered later for the purposes of the hearing.[17]I accepted Mr Wheaton’s explanation, but it was clear from what he told me that the resource allocation sheets cannot be regarded as wholly reliable evidence as to what the position was on any given day. I agreed with Miss Minto on that point. It appeared to me quite possible that the updating of their content might not always have kept up with changing events and decisions. That is not a criticism – the sheets were intended for practical use as a weekly management tool, not as a permanent record.[18]I admitted all four documents because I considered it to be in the interests of justice to do so. Neither party was significantly prejudiced by their admission. I saw some force in Miss Minto’s points about the evidential status of the resource allocation sheets and their weight. So while they are evidence (as far as they go), they are of limited weight in resolving any dispute as to exactly what took place at any site on any given day.[19]The oral evidence concluded before the lunch break on Day 2 and counsel made submissions in the afternoon on that day. I adjourned to deliberate. It became apparent to me on Day 3 that there was insufficient time to both complete and read out an oral judgment. Accordingly, I informed the parties and their representatives that I was reserving judgment. I must apologise for the delay in producing the Judgment and Reasons in this case, due to health and other personal reasons.
Issues
[20]The live Issues from those listed in EJ Livesey’s Case Summary of 15 August 2024 are Issue 2 (constructive unfair dismissal), Issue 3 (wrongful dismissal/notice pay) and Issues 8.1 to 8.4 (remedy). I do not reproduce Issues 8.1 to 8.4 here, given my decision to dismiss both surviving claims. Constructive unfair dismissal[21]The Issues in relation to the unfair dismissal claim set out in EJ Livesey’s CMO are as follows, with the italics indicating issues that are not in dispute: “2. Constructive unfair dismissal2.1 The claimant claims that the respondent acted in fundamental breach of contract in respect of the implied term of the contract relating to mutual trust and confidence. The breaches alleged were as follows:2.1.1 The email of 20 October 2023 which he alleges constituted an attempt to discipline him without a fair and proper process;2.1.2 The incident at the Borden site on 8 November 2023 when Mr Jerome told him to ‘fuck off’;2.1.3 The lack of communication from the contract manager, Mr Hart, following his telephone conversation with the Claimant on 9 November 2023.2.2 The Tribunal will need to decide:2.2.1 Whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the claimant and the respondent. The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation; and2.2.2 Whether it had reasonable and proper cause for doing so.2.3 Did the Claimant resign because of the breach?2.4 Did the Claimant wait too long before resigning and affirm the contract?2.5 In the event that there was a constructive dismissal, was it otherwise fair within the meaning of s.98 (4) of the Act?”[22]The parties agreed that on the facts of the case Issue 2.4 does not arise owing to the short time between the alleged breaches and the resignation. I note that the second sentence in Issue 2.2.1 appears to duplicate Issue 2.3, so I will consider them together.[23]During her submissions, Miss Minto invited me to determine all the issues in the claimant’s favour, based on the cumulative impact of the three alleged breaches described in Issue 2.1. In my conclusions below I consider each of the alleged breaches individually before considering their cumulative impact.[24]The respondent disputes some of the facts relied on by the claimant as constituting breaches of the implied term. It’s position is that there was no breach of the implied term of mutual trust and confidence, that the alleged breaches were not the reason for the resignation (which Mr Wheaton suggested was the claimant’s dissatisfaction with the distance he had to drive to the sites he was allocated to work at) and that, if there was a constructive dismissal, it was fair. Wrongful dismissal (notice pay)[25]The issues relating to the claim for wrongful dismissal are as follows: “3. Wrongful dismissal: notice pay3.1 What was the Claimant’s notice period?3.2 Was the Claimant paid for that notice period?3.3 The Claimant resigned without notice because he alleges that the Respondent was in fundamental breach of his contract as stated above. Have those breaches been made out?”[26]It is common ground that the claimant was entitled to one week’s notice under his employment contract and that he was not paid anything in lieu of notice. So the only live issue is Issue 3.3, which involves the same considerations as Issues 2.1 and 2.2.
Facts
[27]I find the following facts proven on the balance of probabilities after considering(a) the whole of the evidence, both oral and documentary, so far as material and(b) the submissions made by counsel. Numerous factual matters were in dispute at the hearing, but I have generally only made findings where the matter in dispute is relevant to the Issues before me. I do however make some findings in relation to the claimant’s assertions that for a period between about May 2021 and the end of August 2023 his work included regular driving of machinery and less, or no, heavy manual labour. This was disputed by the respondent. It is conceivable that dissatisfaction with the work given to him in the period between September and November 2023 could be relevant to the reason(s) for the claimant’s resignation. Otherwise I do not consider the assertions to be relevant to the Issues before me, so it is not necessary to resolve all the factual matters in dispute.[28]There were references in the documentary and oral evidence to the claimant’s state of health at various times and whether that affected his fitness for work. However, it is not necessary for me to explore the claimant’s state of health in any detail in order to resolve the Issues before me. Even if it were relevant, there is very little direct evidence in the bundle as to the claimant’s health at any relevant time (bar the GP’s letter in September 2022 described in paragraph 57 below and the claimant’s request in January 2023 for an OH assessment in relation to matters referred to in that letter). There is evidence that the claimant took days off work from time to time for medical reasons (including for back trouble) or for medical appointments, but the reasons for those absences were not disputed by the respondent at the time or before me. I was not referred to anything describing the reasons for EJ Gray-Jones' decision that the claimant was not disabled. The preliminary hearing bundle must have contained medical evidence, but none of it was included in the final hearing bundle. The parties must have thought that it was irrelevant to the Issues before me. In these circumstances, I have not looked at any medical evidence from the preliminary hearing.[29]Accordingly, I make no specific findings about the state of the claimant’s health at any time, beyond accepting(a) that the GP’s letter from September 2023 shows that when it was written he was under investigation for potential heart and lung problems, and(b) that the claimant had odd days off for back trouble from time to time.[30]Despite some accusations made by both sides during the hearing, I consider that the witnesses giving oral evidence were doing their best to answer questions and state what they believed to be true. That does not mean that I necessarily accept all I was told – there were disputes of fact which fall to be resolved.[31]The claimant appeared to be, as Miss Minto suggested in her submissions, a straightforward and uncomplicated man of few words. I could see when he was giving evidence that he found it difficult to articulate what he wanted to say and that he did not always understand exactly what he was being asked. I do not see those things as significantly undermining his credibility. Giving in a tribunal is stressful and not easy for people unused to speaking in public.[32]Mr Wheaton submitted that the claimant’s answer to a question from him, stating that his text to a manager calling another employee a “fecking wanker” was not “swearing” affected his credibility. The text itself is relevant to the claimant’s assertions about the seriousness of offensive language he says his gang leader used towards him a few days before his resignation. But while I considered at the time that the claimant’s answer to the question was a rather silly answer, I do not see it as significantly undermining his credibility more generally. I saw it as a silly answer because even if one accepts that the adjective “fecking” is not swearing, the word “wanker” is on any view a highly offensive word to use in a work context, and one that I believe most people would regard as a swearword.[33]Mr Wheaton also referred to inconsistencies in the claimant’s own evidence as to the nature of the work he did between about May 2021 and the end of August 2023 as affecting his credibility as a witness more generally. This point related mainly to the claimant’s varying assessments (in his witness statement and at different points in his oral evidence) as to the proportion of time he spent driving or time he spent doing “manual labour”. I agree that there were inconsistencies in what he said on the point, not least between what he said in oral evidence and his witness statement and grounds of complaint (which suggested he had been working as a driver). I have considered those, as well as the rest of the claimant’s evidence and with the evidence relied on by Mr Wheaton on the same matters, in resolving the disputed questions of fact in this area (so far as I believe necessary).[34]However, I do not regard the inconsistencies referred to by Mr Wheaton as in themselves significantly undermining the claimant’s credibility as a witness more generally. The oral evidence on the point from all the witnesses came across as somewhat confused. Roughly the same question was put in different ways, which made comparing the answers problematical. It appeared to me likely that the meaning of some of the questions intended by the questioner was not always the meaning understood by the witness (and vice versa in relation to their answers). This was in part due to confusion about the meaning of terms used in questions and answers. The term “manual labour” was the main example of this. My own understanding of the term is that it covers a range of physical tasks (covering the great majority if not all of the regular work done by a groundworker), but not driving work. But as far as I could tell, it was sometimes used, or understood, by the claimant at least, to mean heavy manual labour (such as lifting heavy kerb stones) rather than the full range of physical tasks done by a groundworker.[35]Mr Wheaton also criticised the claimant for saying during the hearing that he felt the respondent had been trying to get rid of him, a belief that was not mentioned at the time of the resignation or in the claimant’s pleadings. It is a matter mentioned in both the claimant’s witness statement and Mrs Jeff’s witness statement (who refers to the claimant telling her on more than one occasion that he believed the company were trying to push him out by deliberately making things difficult for him). But the matter is not relied on by the claimant as a breach of contract. I say more on this point below, but I consider that the claimant believed the evidence he gave about his perception. It is not unusual for employees who resign to have this belief and I do not view his evidence on the point as undermining his credibility more generally.[36]The documentary evidence in the bundle is of limited assistance in resolving factual disputes as to the content of certain oral conversations involving the claimant and members of the respondent’s staff. Unsurprisingly, there were no contemporaneous records of their content, although Mrs Jeffs was with the claimant during the phone conversation on 9 November 2023 described below. Where decisions on disputed facts are required, I have considered the balance of probabilities, in the light of all the oral and written evidence from the witnesses.[37]There is no direct evidence from two individuals who, according to the claimant, did or told him things he referred to in his evidence. These are Mr Cyrus Young (a site foreman in whose “gang” the claimant worked at certain times between about May 2021 and the end of August 2023) and Mr Alan Hart (one of the respondent’s contract managers). The lack of direct evidence from them inevitably makes it harder for the respondent to call into question the claimant’s direct evidence about his interactions with them.[38]The senior managers who gave oral evidence (Mr Thatcher and Mr Whistler) told me that some of what the claimant said about the work he did on different sites did not did not happen in the way he described. But it was difficult to tell whether their evidence was based on what others had told them happened or simply on what they thought was meant to happen. It did not appear to be based on direct first-hand knowledge of what actually happened. Mr Wheaton suggested that, in the light of their evidence, some of what the claimant was saying was simply untrue and/or incredible, and adversely affected his credibility as a witness. But as they were not witnesses to the interactions the claimant described I must give his direct evidence about them considerable weight, in the absence of any good reason not to accept it. The claimant’s employment[39]The respondent company is a building and civil engineering contractor based in Southampton that provides groundwork services for the residential building sector at sites across the south of England. It employs around 80 people.[40]The claimant worked in the construction industry for some 40 years. He was employed by the respondent between 2014 and 14 November 2023 as a “groundworker”.[41]The job of a groundworker in the respondent’s business involves a wide variety of different tasks. Some regular tasks require hard manual labour, including lifting heavy objects (such as kerb stones and the like). The normal work of a groundworker can be extremely physical at times and requires a high level of fitness. This means that if a groundworker is at any time suffering from the effect of a medical condition which makes heavy manual labour impossible or unsafe (such as a serious back condition) this would mean they are unfit for work while those effects last, unless the respondent was prepared to permit the worker to perform lighter tasks only. If the effects of such a condition were permanent or recurrent, that could mean that the worker was incapable of carrying out their job.[42]The bundle contains the claimant’s contract of employment (dated 14 April 2014) and a copy of the respondent’s staff handbook. Clause 3 of the contract describes his job as “Groundworker” and states that “in addition to the responsibilities ordinarily associated with this job, you may be required to carry out other related work as reasonably required by the company”. The responsibilities are not set out, but it was common ground that it ordinarily involves a significant amount of heavy physical labour, including lifting heavy weights. There is nothing in the contract to suggest that the claimant had any right to demand or expect to be given other “related work”, or to be given lighter duties and/or driving work, if unable for health reasons to carry out the normal heavy manual labour expected of a groundworker. The contract required the claimant to work at various sites in the UK as and when required to meet the needs of the business. Salary was to be paid per shift. Statutory sick pay only would be paid from the fourth day of an absence for acceptable reasons.[43]The two senior managers (Mr Whistler and Mr Thatcher) explained (and I accept) that employment as a site driver is a different job from being a groundworker and commands better pay.[44]It was common ground that for around seven years the claimant carried out the normal work of a groundworker (including hard manual labour), together with occasional driving of the machines he was licensed to operate.[45]The claimant’s factual position is that he spent more time driving machinery on site during the period of around 27 months from around May 2021 until the end of August 2023 (a few weeks before his resignation). I will refer to this period as “the period in question”.[46]The claimant has always maintained in these proceedings that during the period in question he was spending a lot of time working as, or mainly as, a driver. He did this in reliance on his NPORS operator licence, which he held and kept up to date at all material times, with the support of the respondent. He says he was driving “up to the 3 Tonne machines”.[47]The claimant accepted in cross-examination that he did do manual work at times when he said he was working mainly as a driver. That appeared to contradict paragraph 6 of his witness statement which states that he “did not need to do any manual labour”, although my understanding of his case as presented at the hearing was that that particular statement was intended to refer more to heavy manual labour (such as lifting very heavy weights). His witness statement refers to his long history of back pain and that it helped him to drive as “manual labour” aggravated his back pain. Again, my reading of the statement is that this assertion was referring more to heavy manual labour than to other lighter manual tasks carried out by a groundworker. His witness statement certainly suggests that for health reasons (a bad back at least) he could not always carry out (or safely carry out) the normal requirements of his groundworker job. However, that alleged state of affairs does not really feature in either party’s case, as put to me at the hearing.[48]It is not accepted by the respondent that the claimant ever worked mainly as a driver, or was mainly carrying out lighter duties (including driving), whether during the period in question or otherwise. The senior managers’ evidence was that if significant driving work needed to be done at a site, they would allocate employee drivers to the site or bring in contractors or agency drivers. I accept that was the approach they took in planning resources. But it was clear from their evidence that there could be times when either there were no drivers on site or there were more machines on site than drivers. If a machine was needed for a task and no driver was available, they accepted that another worker (if licensed) might “jump in” and drive it. They said that the claimant might “very occasionally” have done some driving to help out. But they did not accept that this happened often or in a way that might cause him to expect to be allowed to drive rather than carry out all the normal duties of a groundworker.[49]The senior managers also said (and I accept) that the claimant was employed as a groundworker and nothing else, and that the nature of his employment never changed as far as the respondent was concerned. The claimant put forward no evidence to suggest that the respondent somehow altered his employment status to something different from a normal groundworker. However, this was not part of his case so that lack is not surprising. If his gang leader had, as the claimant alleged, accommodated his back or other health problems during the period in question (by altering his mix of tasks to include more driving and less or no heavy lifting) then that was an informal arrangement by that gang leader, who would have been relatively junior in the hierarchy of the respondent’s business. It was not something that altered his contractual job as a groundworker or entitled him to expect different treatment from other groundworkers as to the tasks he could or should be given at whatever site he was allocated to at any time. There is no evidence to suggest that anything like that happened. The managers were clear, and I accept, that that did not happen.[50]This means that, while the claimant was employed as a groundworker, he could always expect to be given duties that involved heavy lifting or other hard manual labour. That remained the case even if, at any time, his immediate site foreman did not in fact ask him to perform such duties. In my view the GP’s letter of 8 September 2022 (see paragraph 57 below) provides some support for this. The claimant must have told his GP that he might be asked to lift heavy weights but could be given lighter duties or driving duties instead. That is the only explanation that makes sense (in my view) of the fact that instead of signing him off work the GP advised that he should not be doing “heavy lifting and lots of manual work” while under medical investigation for an inflamed heart and lung.[51]The respondent’s factual position is that the claimant’s evidence on these matters is exaggerated and/or incorrect and that he was always working as a normal groundworker, with only very occasional driving when needed. The difficulty with their position is that Mr Thatcher and Mr Whistler appeared to be describing the situation as it ought to have been or as they expected it to have been, rather than what it actually was. They did not claim to have first-hand knowledge about exactly what the claimant was doing, or even to have been told about it by staff on site at the time. The respondent did not produce or rely on any direct evidence from more junior employees with direct first-hand knowledge of the facts.[52]This is a straight conflict of evidence. I do not accept the respondent’s evidence on this point. This is partly because of the failure to produce any direct firsthand evidence and partly because I consider, on a balance of probabilities in the light of the evidence available to me, that the claimant was not simply carrying out all the normal tasks of a groundworker during the period in question. Rather, he was doing more driving work and/or lighter duties than Mr Thatcher and Mr Whistler described as being involved in the normal role of a groundworker. He was doing more than “very occasionally” jumping into a machine to help out if a driver was not available. Mr Young or others on site must have allowed him to do more driving work and other lighter work, and less heavy lifting or other heavy manual work.[53]I note here that there is no evidence to suggest that during the period in question the claimant was ever on the senior managers’ radar as someone who was having ongoing difficulties on site. They had the GP’s letter in September 2022 which suggested that he should avoid certain activities for a while, and he requested an OH assessment in January 2023 with reference to that letter. But the senior managers took no direct action in relation to his continued working on site. They took the view that it was for him and his doctor to decide if he was unfit for work or not. If anyone on site had had had real concerns during the period in question as to whether the claimant’s work was acceptable or was risking his health, I would have expected to see evidence of this in the bundle. I can only infer that the claimant was seen as a useful member of the team rather than a passenger, at least until a short time before his resignation.[54]The claimant’s evidence as to how he came to do more driving work and less heavy manual labor during the period in question, exactly who allowed him to do that and when (and for how long) he was allowed to do that, was all somewhat vague. None of those things were made completely clear, although it appeared to be Mr Young who was mainly responsible. The claimant was a long-standing employee and I do not find it surprising that a site foreman might from time to time accommodate any physical limitations (such as the effects of intermittent back trouble) in the balance of work he was given. In those circumstances (and whatever the senior managers thought should have happened) I find that the nature of the tasks he was being given or allowed to do at times during the period in question included more lighter duties and driving and much less, or no, heavy manual labour. The claimant had maintained his operator’s licence as a driver, with the active support of his senior managers. The availability of someone able (and licenced) to drive the smaller machines as and when required, without waiting for a “proper” driver, would be a useful resource.[55]But the claimant was doing some manual work during the period in question, on his own evidence. There was a conflict between the witnesses as to the exact proportion of time spent on manual work and on driving work. He stated in cross-examination that he might have spent 25% of his time doing manual work, although as mentioned above I felt there was some confusion between the claimant and Mr Wheaton as to what counted as “manual work”. The evidence from Mr Whistler and Mr Thatcher suggested that he would only have spent a small fraction of his time doing driving. My conclusion is that neither account is completely accurate. I am certainly not persuaded that he was spending on average 75% of his time as a driver, but I do accept that at times he was carrying out considerably more driving than “very occasionally” and also that his mix of physical tasks was focused more on lighter tasks than heavy manual labour.[56]I do not consider it necessary to resolve this dispute by giving a specific figure as it is not a matter that is directly relevant to any of the Issues. There is more than an element of speculation about the correct figure for driving and lighter duties, in the absence of any records or other direct evidence of what was being done by him at different times during the period in question. It is also likely that the actual figure will have varied considerably from day to day and that the effects on the claimant of any intermittent back or other health problems will also have varied considerably from time to time.[57]The claimant’s GP wrote a short letter to the respondent dated 8 September 2022. This stated that that due to some ongoing medical investigations for a medical condition “It is advised he does not do any activities to exacerbate this, such as heavy lifting and lots of manual work”. The letter did not sign the claimant off work. This letter baffled the senior managers who gave evidence, as it appeared to them to describe the normal work of a groundworker and they read the letter as suggesting, indirectly, that the claimant was unfit for work while the ongoing medical investigations were happening.[58]As mentioned above, the only explanation for this letter that makes sense to me is that the claimant had told his GP that he was employed as a ground worker but was (at least for some of the time) able to do more driving and light manual work and less heavy manual labour. On that basis it would be understandable for a GP to recommend that he should avoid heavy duties for a time, rather than signing him off work. The letter also implies that the claimant believed at the time that(a) he could be asked to do driving and other lighter manual work and(b) he was aware that he was expected to carry out heavy manual labour and could be asked to do so. Otherwise, there was no plausible reason for his GP to write advising that he should not do this for a while.[59]The claimant’s evidence was that he told Mr Thatcher in a phone conversation on 16 September 2022 that he was not unfit for work, because he could do nonmanual work, like driving work which he did regularly. He also said that Mr Thatcher told him to go to Aldershot and do driving duties. Mr Thatcher disputed this. There was no contemporary record of any conversation or reference to this happening. But I consider it more probable than not that the claimant did speak to Mr Thatcher about the GP letter and that he would have mentioned the fact that he wanted to do lighter duties, as his GP had recommended, while medical investigations were ongoing. So I find that he did that. I do not consider it likely that the claimant invented this conversation and it would be understandable for Mr Thatcher to have forgotten details of a brief phone call.[60]I do not, however, find that the claimant gave Mr Thatcher details of his pattern of work over the previous 15 months or so. Whether Mr Thatcher told him he should or could do driving or other lighter duties is a more difficult question. I certainly do not accept that Mr Thatcher told him anything to suggest that “driving or lighter duties” would be an acceptable long-term or permanent solution. If he had done that then I would expect that to have been discussed within the respondent’s management team and to be recorded somewhere; and the claimant would surely have complained when, later, he was allocated to work at sites where he was asked to carry out heavy manual labour. It is possible that the claimant misunderstood what Mr Thatcher said to him, but on balance I consider it more probable than not that Mr Thatcher did indicate that he could avoid really heavy duties for a short while, pending further consideration by management as to what to do.[61]There is no evidence that the senior managers were ever made aware that the claimant had been doing more driving and lighter duties, and less heavy manual labour, than they would expect during the period in question. If they were aware of that, the emails between them and others about the GP letter would inevitably have been worded differently. In any event, the claimant had no reason to believe that the mix of work he described during the period in question would continue indefinitely. He must have been aware that this depended on his gang leader (who could change) and on the needs of the different sites he might be allocated to work at.[62]The GP’s letter referred to above was dated 8 September but was not read or taken in by senior management until a few days later, judging from the first reference to it in an internal email on 16 September. The claimant explained in his evidence that he sent the letter into “the office” on 15 September. The letter was certainly not a conventional fit note and understandably the senior managers were unclear what to do in response. Mr Whistler expressed the view in an internal email dated 20 October (the last in a chain in which he had sought advice about what to do in response to the letter) that unless the claimant told them otherwise they should take it that he was fit to work as a groundworker. The HR advice given to him by “payroll” was that(a) if the claimant was unfit he should be absent and follow the relevant procedures and(b) the company was not obliged to provide other work or create a new job, only to consider if there was a temporary change in role that was possible until the outcome of the investigations was known. The adviser suggested a meeting with the claimant, but this did not happen.[63]The initial request from Mr Whistler for HR advice said that the claimant was a manual worker but the GP’s letter stated he cannot do manual work due to the medical investigations and that the respondent didn’t have any scope to place him on light duties due to the nature of the works. In fact, the letter referred to “heavy lifting or lots of manual work” so was not saying he could not do any manual work. This may also be a further example of confusion about the meaning of the term “manual work”.[64]The GP’s letter refers to “further investigation” (by “cardiology - a specialist unit) for an enlarged heart and inflamed lungs. That suggests a medical problem was causing those symptoms, but does not say that he had a permanent condition or that the advice was indefinite or permanent. In the ordinary course of things, if the investigations disclosed an ongoing heart or lung problem (rather than, say, symptoms of an infection or some other short-term problem) I would have expected to see some evidence of this in the bundle, such as a further GP letter or a fit note, or something from the claimant informing the respondent of the problem But there is nothing of that kind. There is simply no medical information about the results of the investigations.[65]There was no formal process involving the claimant resulting from the letter and nor was there any response from the respondent to the GP until some months later. The only interaction between the senior managers and the claimant appears to have been the phone conversation described in paragraphs 59 and 60 above.[66]On 26 January 2023, the claimant asked Mr Thatcher in a letter for an Occupational Health assessment to be carried out. This referred to the GP letter and advice and said that “I feel it is important that the company consider reasonable adjustments and the Occupational Health Assessment will determine independently what I can and cannot do”. It is not clear to me why he requested this assessment. It may be that he thought it would show he was disabled, perhaps without realising that if he had a serious health problem this would call into question his fitness for work and, potentially, whether he remained capable of doing his job. The request certainly suggests ongoing concerns on the claimant’s part as to the work he was being or might be given to do. It may also suggest that he believed the possible heart and lung problems had yet to be ruled out. The request does not appear to have been made in relation to back problems, although any permanent or recurrent problems of that kind would inevitably have come out in an OH assessment.[67]It appears that when Mr Thatcher received this request he had forgotten about the GP letter from September 2022, although his email address was on the copy list for the chain of emails referred to in paragraph 62 above. He sent the claimant a letter dated 31 January 2023 agreeing to a reference to Occupational Health. The letter expressed surprise he had not been signed off, given that his employment as a groundworks labourer “by its very nature it entails heavy lifting and manual work”, He also stated that in the meantime it was difficult to see what can be done to lessen the effect of his employment on his condition. That was because the business was manual work and there were no light duties within groundworks. The claimant was asked to pass the letter to the GP and to ask him to evaluate the claimant’s fitness to work, until an Occupational Health assessment was carried out. There is no evidence that the claimant did that, and certainly there was no further communication from the GP. Instead, the claimant continued to work, with some days off for various reasons.[68]The OH referral was never made. The claimant did not follow up his request with any further communications in writing on the subject. There are some internal emails referring to the claimant giving permission for Mr Thatcher to speak to the doctor. In an earlier email in the same chain Mr Whistler mentioned that since the GP letter in September the claimant had not mentioned any further health issues and there had been no “sign off” by the GP. There was also a suggestion that they might need to tell the claimant to stay at home and claim Statutory Sick Pay.[69]On 20 Feb 2023 Mr Thatcher must have decided he needed more medical information. A letter to the GP refers to his original letter, which Mr Thornton said he had only just receive, and states that Mr Thornton was concerned that the claimant had not been signed off work. It then said “David is employed as a “Groundworker”, by its very nature it entails heavy lifting and manual work. There are no light duties within groundworks. For this reason, it is not possible for him to continue his duties and I am unsure what you think is a practical solution to his condition.” The letter gave Mr Thatcher’s contact details. The claimant’s name was given as a copy recipient.[70]I read the letter from Mr Thatcher as impliedly seeking further advice or information, even though there is no specific question actually asked. A GP would be unlikely to have much to contribute to “a practical solution” to the problem faced by the respondent. In any event the GP did not reply to this letter. It is possible, of course, that the medical investigations had shown there was no long-term lung or heart problem. But there is no medical evidence as to whether there was a longer-term heart or lung problem.[71]If the claimant had not been doing, or coping with, the work he had been doing during the period in question I would have expected this to be referenced in a document to, or from, a manager before October 2023.[72]In October 2023, the claimant was working at a site in Oxshott doing manual work. On 20 October he was sent an email from Mr Whistler about alleged poor timekeeping and attendance on the claimant. He was asked to justify his absence on 20 October and explain if a health issue was contributing to them. The email read: “I find myself having to write to you today due to your poor time keeping and absence record. Only today, we have received a notification from a client that we have not fulfilled our labour requirements on the site where you are working, apparently because you have decided not to come to work because of the rain, it has been bone dry all day. Looking back through the payroll over the last few months alone, you have missed numerous days at work. Whilst you have informed us of a potential health issue, and your doctor has yet to respond to our correspondence sent several months ago, it is your duty to report to your contracts manager that you do not intend on attending work at any given day, stating valid reasons why. Do you still have health issue which is preventing you working? If I do not receive a response from you within the next 7 days stating valid reasons for your absence, then take this email as a written warning regarding your lack of attendance”.[73]The bundle contains a brief Whatsapp message sent to Mr Whistler by the claimant dated 30 October at 13.17 (when Mr Whistler was on holiday). This stated that he had had two days off with a bad back and that on Friday 20 October he was off because he needed to make to see his doctor. He said he could get proof of this from the doctor. He asked Mr Whistler to give him a call.[74]The claimant replied to Mr Whistler’s letter in an email dated 2 November 2023 at 12.06, as follows: “Hi Phil Thank you for your email dated 20th October 2023, sorry for the delayed reply I hadn't seen your email. I did briefly reply by WhatsApp on 30th October 2023, also I telephoned, but your voice message said you were on leave, so I didn't leave a message. I would like to response in more detail in writing to you. I am sorry that you feel you need to write to me due to poor time keeping and attendance record. The assertion that I have not attended site due to rain, is factually incorrect. You state it is my duty to report absence to the Contracts Manager; I would like to clarify that I have always reported absence to either the supervisor on site or the Contracts Manager and indeed I did report my absences/reasons to the supervisor Cyrus Young and I have a record of this. You state if you do not receive a response within the next 7 days stating valid reasons for your absence, then take this email as a written warning regarding your lack of attendance. I do not accept the threatening tone 'to take this email as a written warning'. Please confirm that you revoke the threat of a written warning, otherwise I will have no alternative but to seek professional help in communicating with you directly concerning this. Kind regards Dave Thornton”[75]The claimant’s response on 2 November is not indicative of someone contemplating resigning for a serious breach of contract by his employer. Rather, it suggests the claimant wanted to be cleared of anything on his record, going forward. He had answered the question about his specific absence on 20 October and said he followed the absence procedures. On the face of it, that answer was (if true) a response that he must have expected Mr Whistler to accept as a valid reason for absence.[76]Mr Whistler did not respond to the claimant’s letter of 2 November.[77]An email from a client of the respondent dated 2 November 2023 to Alan Hart complained about the claimant’s performance on site. He had noticed “a lot of standing around from Dave” and that unlike the rest of the team “no matter what the circumstances may be at 16.00 Dave is in the van and on his way home”. I understood this to refer to an expectation that workers would not leave until about 16.30. The email then says that the author had “come to the decision to not have Dave on site it’s not cost effective”. This email was not the subject of any disciplinary or management process against the claimant, but Mr Thatcher explained that the claimant was “quietly” moved to another site.[78]On 8 November 2023, the Claimant was working at the respondent’s Borden site when his foreman, Mr Jerome, directed him to carry concrete blocks from the road to lay on a driveway. Mr Jerome noticed that he was not doing this in the way he expected: he was getting other workers to assist him to avoid a step up. He questioned the claimant about this. The claimant indicated that he had a bad back which prevented him doing what he had been told to do and that he could not do some carrying tasks as well as the younger lads. I accept the claimant’s account as to the tenor of what he said to Mr Jerome and that on the day he felt unable to lift the blocks in the manner expected. I note that what he said about his back plainly called into question whether he was fit for work on the day.[79]It was common ground that Mr Jerome got somewhat heated because of what the claimant was telling him and told the claimant that he should not be working if unable to carry out the work. The disputed fact related to specific words the claimant alleged were used by Mr Jerome. The claimant has always maintained that he was told by Mr Jerome in terms to “fuck off” if he could not do the work. In his oral evidence Mr Jerome denied using the words “fuck off” (saying he did not do so “on that occasion”) but things were heated at the time, and I consider it more probable than not that those words (or very similar words) were used.[80]The claimant agreed in cross examination (and I accept) that bad language is commonplace on building sites and something that those working there would be used to hearing. Mr Whistler relied on this point in his submissions on the significance of the words “fuck off” (if used) in the claimant’s actual workplace. I deal with this in my conclusions below.[81]The claimant was upset by what was said to him and by what had happened in front of his colleagues on site. He left the site and went home. He did not go to work the next day (9 November 2023) as he did not wish to return to the Borden site working under Mr Jerome. However, that was his choice, not the respondent’s. As far as the respondent was concerned, he had been allocated to Borden and should have reported for work unless sick or otherwise unfit to work.[82]Mr Jerome informed Mr Whistler on the morning of 9 November that the claimant was absent and mentioned the incident the previous day. I have no information as to the detail of what was said. The claimant did not call in to Mr Jerome or anyone else at the start of the day to explain his absence. Instead, he sent Mr Hart a text timed at 12.22 (pm) saying “just to let you know I am off today due to issues on site, happy to discuss further with you?”. This text was clearly attributing his absence to the incident with Mr Jerome rather than his bad back. He later spoke to Mr Hart on the phone about what had happened and told him that he did not feel able to return to the Borden site. His sister, Mrs Jeffs, was with him at home when this conversation took place. Her evidence supported his account of what was said.[83]The claimant’s evidence (which I accept) was that Mr Hart expressed sympathy with his back problem, was unable to tell him where he should report for work and said that he would be in touch to direct the Claimant as to his place of work. That must have been because Mr Hart would have needed to find out details of what happened and seek instructions from Mr Thatcher and/or Mr Whistler as to what should happen next.[84]I consider it more probable than not that Mr Hart did not simply accept the claimant’s account of events and agree he could work somewhere else. That would inevitably be a matter for the senior managers and something they would want to consider and decide for themselves. Mr Jerome’s account of what happened was likely to be different from the claimant’s. It did not follow that the decision would necessarily be to agree with claimant’s unilateral decision not to return to the Borden site. And even if they did agree he should not work there they needed to mover staff around if they were to accommodate him immediately at another suitable site. Another inevitable issue would be the claimant’s state of health, as the senior managers were very likely to take the view that if he could not do what was expected of him as a groundworker then he should be on sick leave. I note that the claimant had made clear to his foreman on 8 November that he was not physically able to do the work expected of him at Borden. That may well have continued to be the position over the next few days, but I have no evidence on that point. The senior managers had no medical information about his back problems or his fitness on or after 8 November and would probably have wanted reassurance that he was fit to work before he returned to work.[85]The claimant was not contacted by Mr Hart or anyone else after the conversation on 9 November. That took place in the afternoon or early evening on a Thursday. I have no information as to what Mr Hart then did, whether Mr Whistler and/or Mr Thatcher were available between the Friday and the Tuesday or whether they were able to discuss the matter and their options. The situation was a difficult one and they might well have needed HR advice or even, perhaps, legal advice.[86]The claimant did not then contact anyone from the respondent about the incident on 8 November or about where he should report for work. Instead, on Tuesday 14 November, the Claimant resigned by sending an email timed at10.54 pm attaching a short letter to the respondent, as follows: Dear Phil I write to advise due to the untenable position; I do not believe I can continue to work for DR Groundworks due to the following: Email received from you dated 20th October 2023, whereby you attempted to discipline me without a fair and proper process. The incident on the Bordon site on 8th November with Site Foreman Dave Jerome where he said “if you can’t do it then Fuck Off”. Lack of communication from the Contract Manager Alan Hart, following our telephone conversation on 9th November 2023 I asked him where he would like me to go to work the next day, he said he would discuss with Phil Whistler and Simon Thatcher and get back to me, to-date I have not heard anything further. Please accept this letter as termination of my contract giving you 1 weeks’ notice, so my last working day would be 21st November 2023. I would like to utilise my outstanding holiday for the 1 weeks’ notice period and any additional holiday due to me will be paid. Yours sincerely D Thornton” Applicable law (A) Constructive unfair dismissal
Applicable law
[87]I am grateful for a helpful written summary of the law given to me by Mr Wheaton on the morning of Day 2. He expanded on this in his legal submissions, pointing out that references in the older case law to a breach of contract consisting of behaviour by the employer “calculated” to destroy or seriously damage the relationship of trust and confidence between the employer and the employee should now be disregarded. The correct test was now simply whether the conduct in question was likely to have that effect. That is an objective test for the Tribunal to assess.[88]Miss Minto accepted the accuracy of his note but also expanded on some of the content. She emphasised that in the context of causation, the resignation must be a response, at least in part, to a repudiatory breach of contract by the employer. The case law established that it is sufficient for any or all of the breaches of the implied term of mutual trust and confidence (“the implied term”) to be “an effective cause” of the resignation, rather than the sole or main reason. If that is the case, it would not matter that there might have been other things in the claimant’s mind. So the claimant could succeed even if he had in his mind dissatisfaction with his treatment by his employer in other respects (for example by being allocated to a site some distance from home) or a perception that he was somehow being got at or squeezed out by his employer because of the sites he was being sent to or the work he was being given to do. The only question (under Issue 2.3) was whether the resignation was at least in part in response to a breach of the implied term.[89]I do not propose to reproduce everything in Mr Wheaton’s note, but will summarise the relevant principles I must apply. The starting position is that the employment relationship was terminated by the claimant when he resigned. But under section 95(1) of the Employment Rights Act 1996 an employee is “dismissed by his employer” if (among other things) “(c|) the employee terminates the contract (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”. This is a reference to constructive dismissal - the law deems the resignation to be a dismissal if the employer has committed a repudiatory breach of contract which the claimant has accepted as terminating the contract.[90]A repudiatory breach is a serious breach of contract going to the root of the contract, which involves conduct by the employer which the employee as the innocent party is entitled to treat as bringing the contract to an end. The employee can leave by resigning (with or without notice) and can then treat the situation as a dismissal.[91]It is common ground that the claimant needs to prove that he was dismissed in this way, and that the key test is an objective one for the tribunal, based on the facts of the case. The Tribunal is determining whether there was a breach of contract, not applying the range of reasonable responses test applied to other unfair dismissal claims.[92]In this case, the only contract term in issue is the implied term of mutual trust and confidence. The implied term is that the employer must not, without reasonable and proper cause, act in a manner likely to destroy or seriously damage the relationship of mutual trust and confidence between employer and employee. I note here the qualification referring to whether the employer had “reasonable and proper cause” for doing things that might otherwise constitute a breach of contract. So, for example, giving an employee a justified “final warning” could not be a breach of contract, whereas one that was unjustified could be a breach of contract. That would depend on whether the conduct was likely to destroy or seriously damage the the relationship of mutual trust and confidence.[93]The content of the implied term was finally established in Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, although the implied term described in that case included the words “in a manner calculated and likely to destroy or seriously damage [the relationship ...”. As mentioned above, subsequent case law has made clear that the reference to “calculated” is not now generally thought to add anything to the rest of the test.[94]The important thing is the effect or potential effect on the employee of the employer’s conduct. The employer’s own intentions are not relevant. The question whether there is a breach of the implied term is an objective question for the Tribunal.[95]The test for establishing a breach of the implied term is a high one – the conduct must be likely to “destroy or seriously damage” the relationship of trust and confidence. Damage alone is not enough. But if there is a breach of the implied term, it is to be regarded as a fundamental breach of contract entitling the employee to terminate the contract.[96]In this regard, if there is more than one action by the employer that is in issue the cumulative effect of all relevant actions may be considered in addition to considering the likely effect of each individual action: Gab Robins (UK) Ltd v Gillian Triggs [2007] UKEAT/0111/07N.[97]In BCCI v Ali (No 3) [1999] IRLR 508 Lightman J in considering the decision of the House of Lords in Malik said, among other things“the test is whether the employer's conduct is such that the employee cannot reasonably be expected to tolerate it a moment longer after he has discovered it and to walk out of his job without prior notice” “cumulative actions of an employer can be taken into account and may together constitute a breach: Lewis v Motorworld Garages Ltd [1985] IRLR 465.” “ the required conduct must be 'likely' to 'destroy or seriously damage' the relationship of trust and confidence with the claimant employee. The term 'likely' requires a higher degree of certainty than a reasonable prospect or indeed a 51% probability ('not unlikely') and reflects what might colloquially be termed 'a pretty good chance': consider Taplin v C Shippam [1978] IRLR 450 at 452, 21–23. A mere possibility of destruction or serious damage may not be sufficient, as may not the likelihood of any lesser adverse impact;” Those extracts support Mr Wheaton’s submission that the test of breach of the implied term of mutual trust and confidence is high one.[98]In this case the key issue is whether the acts or omissions relied on by the claimant took place and, on their own or taken together, breached the implied term of mutual trust and confidence. Miss Minto relied in her submissions on the cumulated effect of the alleged breaches and submitted that the third one (not following up the conversation with Mr Hart on 9 November by allocating the claimant to a site after that conversation) was especially significant as it deprived the claimant of any pay for the days in question. In this regard, I note that persistent or substantial non-payment of pay can amount to a breach of the implied term (and so as, potentially, a constructive dismissal). But the facts must be considered before concluding that the employer’s behaviour goes to the root of the contract. So a failure due to a temporary technology problem, accounting error or a simple mistake or one due to “illness or accident or unexpected events” might not constitute a fundamental breach: Cantor Fitzgerald v Callaghan [1999] IRLR 234. That was not an implied term case, but the approach in it to the nature and seriousness of breaches of a payment term gives some guidance about how to approach the point made by Miss Minto about the significance of the loss of opportunity to work and be paid between 9 and 14 November. It is also important to bear in mind the thought expressed in the first extract quoted in paragraph 97 above – whether the employee can or cannot reasonably be expected to wait longer before resigning.[99]Where a fundamental breach of contract by the employer is proved, the resignation cannot be regarded as indicating a constructive dismissal unless it was caused by the breach of contract. Where there are mixed reasons for resignation, it is enough for the breach to be a substantial part of those reasons so that it is “an effective cause” of the breach: Meikle v Nottinghamshire CC 2005 ICR 1, Court of Appeal. I accept what Miss Minto said about this (see paragraph 88 above). (B) Wrongful dismissal[100]It is a breach of contract for an employer who terminates an employment contract to fail to give the notice required by the contract to the employee (unless termination without notice is justified by a breach of contract by the employee). The employee’s right to the contractual notice applies also where they can show they have been constructively dismissed. That gives rise to the same legal issues as are described above in relation to the claim for constructive unfair dismissal. Conclusions (A) The claim for constructive unfair dismissal “2.1 The claimant claims that the respondent acted in fundamental breach of contract in respect of the implied term of the contract relating to mutual trust and confidence. The breaches alleged were as follows:2.1.1 The email of 20 October 2023 which he alleges constituted an attempt to discipline him without a fair and proper process;2.1.2 The incident at the Borden site on 8 November 2023 when Mr Jerome told him to ‘fuck off’;2.1.3 The lack of communication from the contract manager, Mr Hart, following his telephone conversation with the Claimant on 9 November 2023. 2.2 The Tribunal will need to decide:2.2.1 Whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the relationship of trust and confidence between the claimant and the respondent.2.2.2 Whether it had reasonable and proper cause for doing so.” Overview
Conclusions
[101]Issues2.1 and2.2 between them cover three matters that I must consider in relation to the three things relied on by the claimant (individually and cumulatively) as breaches of the implied term of mutual trust and confidence.(1) Did the respondent do the three things alleged to be wrongdoing that breached the implied term?(2) Did the respondent have reasonable and proper cause for what they did (Issue 2.2.2)?(3) Did the respondent’s acts or omissions (i.e. their “wrongdoing”), viewed individually or cumulatively, meet the test set out in Issue 2.2.1? If the answer to the third question (in relation to conduct of the respondent for which there was no reasonable and proper cause) is “yes”, then there was a breach of the implied term and Issues2.3 (causation) and 2.5 (dismissal otherwise fair) then arise for decision.[102]In these conclusions I propose to consider each alleged breach separately before considering the cumulative impact of all the relevant conduct. First alleged breach (email of 20 October 2023 which the claimant says was an attempt to discipline him without a fair and proper process)[103]There is no dispute that Mr Whistler sent the email of 20 October 2023 set out in paragraph 72 above to the claimant. The email mentioned(a) a notification from a client “today” (i.e. 20 October) that the employer had not fulfilled its obligations on site “apparently because you have decided not to come to work because of the rain, it has been bone dry all day”,(b) the fact that “over the last few months alone, you have missed numerous days at work” (the days in question being unspecified),(c) the fact that he had informed them of a potential health issue, but his doctor had not responded to correspondence from them “several months ago”, and(d) that it was his “duty to report to your contracts manager that you do not intend on attending work at any given day, stating valid reasons why”. The email then asked whether “you still have health issue which is preventing you working”.[104]The words to which the claimant has objected, as a breach of the implied term, are essentially those in the last sentence which read “If I do not receive a response from you within the next 7 days stating valid reasons for your absence, then take this email as a written warning regarding your lack of attendance”. The words “lack of attendance” appear to me somewhat ambiguous. They appear as a matter of grammatical sense to be referring back to what is described earlier in the email as poor attendance, although I can see that it must have been intended to refer instead to just the absence on 20 October. That ambiguity meant that the claimant could not be absolutely sure what the warning meant, and whether it related to one unexplained absence or to justified absences that were at an unacceptable level (or perhaps both). The distinction is important because different aspects of the respondent’s absence policy are engaged by the two different issues.[105]The final sentence is clearly saying that if the claimant did not give valid reasons for his absence on 20 October within 7 days, the email constitutes a written warning. Whether that is a legally effective way of giving a written warning must be debatable. Neither party addressed that matter in any detail and I do not propose to make any decision on that more general question. In any event, the claimant read the email as imposing a disciplinary sanction and his position is that that it did just that, regardless of the conditional form of words. He says that was unfair and a breach of the implied term because it was not the result of a fair process.[106]The respondent’s position is, in effect, that the email simply asked him to give an acceptable explanation for his absence on 20 October, which he did. That meant, they say, that there was no sanction imposed on the claimant. One obvious difficulty with this position is that the claimant did not respond within the 7 days allowed. So on a literal reading of the letter he failed to meet the condition, whether or not his explanation was acceptable. Doubtless the respondent would now say that a late acceptable reason is fine from their point of view and the lateness of the response did not matter. But how was the claimant to know that if nobody told him?[107]In my view the email from Mr Whistler of 20 October was ill-judged and was certainly not the result of a fair disciplinary procedure. It muddled up questions about the particular absence reported to Mr Whistler and the reasons for it, questions about the claimant’s overall level of absence (for various apparently accepted reasons, including health reasons) and concerns about his overall health. It hints that his absences may be linked to ongoing health problems and mentions that managers were still waiting for a response from his doctor. It also appears on its face to be imposing a disciplinary sanction, without any prior procedure. I do not see the conditional form of words as affecting that conclusion, not least because the written warning would be automatically activated unless the condition was met, without any further process.[108]When the email was sent, Mr Whistler had neither properly established the facts nor ascertained whether the claimant’s account of the facts was different from what others had reported to him. Until he knew what the claimant was saying about it (whether he was absent, whether he contacted someone to inform them, and whether there were acceptable reasons for absence) it was impossible for him to properly conclude not only that there was no need to investigate further but also that there had been misconduct, and that a written warning was called for. He did not give the claimant the chance to comment on whether any failure on his part constituted misconduct justifying a disciplinary sanction. Nor did he give the claimant details of the unsatisfactory general absence levels he was concerned about or an opportunity to make representations about them, about whether they breached the employer’s absence policy or about the appropriate position for the employer to take going forward.[109]The claimant did give an explanation, which I was told at the hearing was acceptable to the respondent. But that fact was not communicated to the claimant. So he could not have known for sure that the warning was not regarded by his employer as “in force” because they regarded the explanation as good enough to prevent it applying. He had not offered an explanation within 7 days after 20 October so on the face of things the warning was activated. For these reasons I do not accept the respondent’s position that there is nothing in this alleged breach because the warning was never in fact triggered. I consider that to be a somewhat disingenuous argument.[110]In view of what had been reported to him, Mr Whistler was entitled to raise with the claimant his absence on the day and to ask why he was absent and why he did not inform his site manager at the start of the day. Depending on the claimant’s answers, that might properly have led to(a) confirmation he had not in fact breached the absence policy,(b) an informal discussion about following the policy on justified absences and, perhaps, some sort of informal warning (if justified), or(c) if the employer thought there was a disciplinary issue regarding an unjustified absence or failure to notify the site manager, to a disciplinary process. Any disciplinary process would normally start with further investigation of the facts.[111]Similarly, the employer was entitled to raise with the claimant concerns around his lack of attendance more generally. Unacceptable levels of absence could be a breach of their absence policy even if all the absences were in themselves justified absences under the policy. An informal discussion might, if the concerns remained, then be followed either by some sort of informal warning as to the need for improvement or by a more formal process, again involving investigation of the relevant facts. It appears that the claimant had had some ongoing health issues and an investigation of the facts might well have focused on his health and any relevant prognoses (if he did have any conditions potentially affecting his capacity to do his job).[112]In terms of Issue 2.2.2 I consider that the respondent had reasonable and proper cause for raising those two matters. However, for the reasons already explained I do not regard the respondent as having reasonable and proper cause for the ill-judged email of 20 October.[113]The email of 20 October giving a conditional written warning was not, on any view, a proper way of initiating an investigation or a disciplinary process, if that was what Mr Whistler thought he was doing. It appeared to raise and muddle up concerns about both the absence on 20 October and the claimant’s attendance levels more generally, without giving details of the absences in question or why they were of concern. There is no suggestion of any further investigations taking place to establish the facts or of a disciplinary process taking place. And Mr Whistler had clearly decided to impose a sanction, albeit on a conditional basis, which prejudged the decision as to the appropriate response if the claimant failed to give an explanation within 7 days and/or had no valid reasons for his absence on 20 October.[114]If a disciplinary sanction was thought to be a possible outcome, the correct approach for the employer would be to establish facts through a reasonable investigation and fair disciplinary process (however brief), leading to an informed decision as to(a) whether there had been misconduct or other breach of the absence policy,(b) if so, whether a disciplinary sanction or other formal decision was appropriate (rather than management action such as an informal warning) and(c) if so, which sanction to impose or decision to make (if for example incapacity was in issue). A fair process would at least give the employee the opportunity to defend themselves and to make representations about all those matters before final decisions were made.[115]Given that those things had not happened, it is understandable that the claimant saw the email as the respondent imposing a disciplinary sanction on him without any proper process. I read the email in the same way.[116]I note that “within 7 days” was a short period to set for a response in the case of someone like the claimant who does not always read or deal with emails quickly. The claimant first tried to contact Mr Whistler on 30 October, when he was on holiday. That was outside the 7-day period. I do not criticise the speed of response by the claimant. He was fully entitled to regard the email as a serious matter which needed a careful response, perhaps after seeking external advice before deciding what answer to give and what else to do.[117]The claimant’s response invited Mr Whistler to withdraw the threat of a written warning, referring to professional help being sought if not forthcoming. That is probably a reference to legal help. This suggests that cancellation of the sanction (or perhaps confirmation it was not in force) was all the claimant wanted at the time.[118]For all the above reasons, it follows that I do consider that there was “wrongdoing” involved when the respondent sent the email of 20 October (acting through Mr Whistler), an email to which the claimant could reasonably take exception. It was a mistake. But that is not enough to answer Issue 2.2.1 in favour of the claimant: the question for me is whether the respondent behaved in a way that was “likely to destroy or seriously damage” the relationship of mutual trust and confidence between the claimant and the respondent, as that test has been interpreted under the applicable law described above. This is a matter for me to consider objectively.[119]I refer here to my conclusion above that the respondent did not have reasonable and proper cause to send the email (Issue 2.2.2). But determining that issue in favour of the claimant only helps him in his claim to have been constructively dismissed if I determine Issue 2.2.1 in his favour too.[120]The unjustified imposition by the respondent of a conditional written warning for one absence was not in my view serious enough to be likely to “destroy or seriously damage” the relationship of mutual trust and confidence. This was an isolated act. The claimant responded with an acceptable explanation, albeit outside the 7 days allowed. There may have been some doubt in his mind whether the written warning was still technically relevant to him after he responded. But if his explanation (that he had correctly notified Mr Young of an acceptable reason for absence) was true, he must have been confident that it would meet Mr Whistler’s immediate concerns about his absence on 20 October.[121]All the claimant needed and wanted was confirmation that the written warning had not been activated or had been rescinded. I can see no reason why the claimant could not have chased Mr Whistler for an answer to his letter responding to the conditional written warning, or raised the matter with a more junior manager such as Mr Hart. The claimant was a long-standing employee well able to communicate robustly with managers, judging from various communications from him in the bundle. A positive response was more than likely, assuming what he said was true and not disputed by Mr Young. So the respondent’s mistake in sending the email could have easily been resolved between the claimant and a manager within a few days and without any collapse in mutual trust and confidence. There was likely to be some damage to that relationship resulting from the email, but not of the scale required to constitute a breach of the implied term.[122]I accept that an unjustified written warning is a potentially serious matter for any employee, but on the facts of this case I do not see the respondent’s conduct as coming anywhere near the threshold stated in Issue 2.2.1 for a breach of the implied term. The claimant’s email refers to further action by him to clear his name if the warning was not withdrawn. That was a perfectly reasonable position for him to take. But the sending of Mr Whistler’s letter was not, in my view, itself a breach of the implied term.[123]In assessing the seriousness of the respondent’s “wrongdoing” I also considered Mr Whistler’s failure to respond to the claimant’s request for confirmation that the written warning was revoked. This was not, strictly, the breach relied on by the claimant, but it was referred to at the hearing and was plainly part of the relevant conduct. The claimant rightly sought confirmation that the warning was not on his record. But I do not accept that an instant reply to his email of 2 November could reasonably be expected by him. Mr Whistler needed to consider the claimant’s response, confirm the facts with people on site and, perhaps, seek HR advice and consult Mr Thatcher or other managers and staff. He had only just returned from holiday, as the claimant was aware. I would have expected a response to reasonably take a week or so. Also, events rather took over after the claimant sent his explanation for his absence on 20 October. First, they had to deal with the client complaint mentioned in paragraph 77 above (sent on 2 November) and then with the incident at Borden involving Mr Jerome (on 8 November). As mentioned above, if the claimant was concerned about the delay (despite having put forward an explanation which, if true, would meet Mr Whistler’s concerns about the absence on 20 October) it would have been easy enough for him to chase the matter up. For all these reasons I do not consider that the failure to respond to the claimant’s request before his resignation makes any significant difference to my conclusion that sending the email of 20 October was not a breach of the implied term. Second alleged breach (incident at the Borden site on 8 November 2023 when Mr Jerome told the claimant to ‘fuck off’)[124]The respondent’s position is that the claimant was told to go home but was not sworn at. I have found that the words “fuck off” were used and the claimant was told one way or another that he should not be working. It was not surprising that Mr Jerome was annoyed that the claimant had turned up to work when unfit, as Mr Jerome saw things. Nor was it surprising that the claimant was also upset by the incident or that he left the site. I accept that it was embarrassing for him to be ordered off site with other workers around. But the alleged breach of contract relied on relates to the language used rather than the fact the claimant was told to leave. The question for me is whether the incident of bad language was something “likely to destroy or seriously damage” the relationship of mutual trust and confidence between the claimant and his employer.[125]I consider there are two main reasons for not answering that question in the claimant’s favour.[126]First, the reality is that not all workplaces are the same and the seriousness of the wrongdoing here must be assessed in relation to the claimant’s particular place of work (a building site). I would expect workers on a building site to regularly hear, and to expect to hear, strong or offensive language at work from their co-workers (including foremen). I would not expect them to be seriously offended by the use of such language. Doubtless some workers would use such language more than others, and some might not use it at all, but I am sure they would all experience it from others. So while I accept that as a matter of principle employees should be using respectful language to each other, and a worker’s foreman should not be telling the worker to “fuck off” (home), the objective seriousness of this is greatly reduced in a work environment where such language is commonplace. That was the position at the building sites where the claimant worked. He accepted that strong language was used on the sites where he worked, although he maintained his objection to what Mr Jerome said to him personally.[127]Secondly, Mr Wheaton had a further point in support of his submission that the claimant could not plausibly complain about the language used to him by Mr Jerome. He referred me to a text in the bundle from the claimant to Mr Hart earlier in 2023 about his work location. This refers to another member of staff who the claimant had found difficult to work with. The text refers to having to work with “a fecking wanker that [name omitted]”, suggests other places he could work and concludes “Sorry I have to tell you this but can’t work with a fecking wanker like Him”. Mr Wheaton’s point was that if the claimant uses such language twice in a work-related email to a manager, it is unreasonable for him to be complaining about similar language used to him in conversation by Mr Jerome.[128]I consider there to be considerable force in this point, which is another strong factor against regarding the language used as (objectively) so unacceptable to a person in the claimant’s position that it constituted a breach of the implied term by the respondent. I should add that I do not see the word “fecking” in the claimant’s text (plainly used as a euphemism for “fucking”, perhaps referring to the word as regularly used by a character in the Father Ted TV show) as much better than “fucking” or “fuck off”, not least because it was used as an adjective attached to the word “wanker”, a word which is clearly highly offensive in itself. I note the text also supports my view that building site workers are no strangers to strong language.[129]For those two main reasons I do not accept that the incident complained of involving swearing by Mr Jerome was a breach of the implied term. Rather than treat the incident as a reason to resign, in my view the claimant could and should have taken up any complaint he had about his treatment by Mr Jerome formally with a manager and, if need be, with a senior manager such as Mr Thatcher or Mr Whistler.[130]What actually happened was that the next day the claimant told Mr Hart (who was more senior than Mr Jerome) in a text sent at 12.20 that he was not coming in because of an incident on site the previous day and that he was happy to discuss further. A phone conversation took place later the same day. Mr Hart will inevitably have taken what the clamant told him about his treatment as some sort of complaint about his treatment, however informal. But clearly Mr Hart could not address the matter on the spot, as he needed to look into the facts and, perhaps, consult Mr Whistler and Mr Thatcher. If the claimant remained unhappy with his treatment or the management response, he had the option of approaching someone more senior or of making a formal complaint by raising a grievance.[131]A further, but less significant, consideration in relation to the second alleged breach is that Mr Jerome was the claimant’s foreman, and so relatively junior in the respondent’s organisation. This is another factor against viewing the incident as serious enough (in terms of its likely effect) to constitute a breach of the implied term by the respondent. Offensive language aimed at a worker from senior managers would be a more serious matter (not least because their actions are more readily attributed to the respondent as a matter of law). However, in this case I see the two main considerations described in paragraphs 125 to 128 as enough on their own for me to conclude that the conduct complained of here was not a breach of the implied term. Third alleged breach (lack of communication from the Contract Manager, Mr Hart, following his telephone conversation with the Claimant on 9 November 2023)[132]In my findings of fact I accepted that the claimant had a phone conversation with Mr Hart in the afternoon of Thursday 9 November. Mr Jerome had informed Mr Hart in the morning that the claimant was absent and mentioned the incident, although I would expect his account to have differed from the claimant’s account. I also accepted that Mr Hart told him he would need to consult senior managers and get back to him as to where he should be working (if fit). Mr Hart did not get back to him before he resigned on Tuesday 14 November.[133]The claimant’s position is, essentially, that it was unreasonable to expect him to go back to work under Mr Jerome and that it was a core part of his employment relationship that he was allocated to a site for each working day and that Mr Hart’s delay in getting back to him, as promised, allocating a different site put him out of pocket in relation to the Friday, Monday and Tuesday after the incident on Thursday 8 November and was completely unacceptable. The respondent’s position is that the delay was not unreasonable and that they needed time to address everything that needed to be considered.[134]I accept that the claimant feels he was mistreated in this regard. But as with the other allegations, I must decide whether, viewed objectively, the failure to respond by Mr Hart was likely to destroy or seriously damage the relationship of mutual trust and confidence between the claimant and his employer.[135]In my view, what happened did not meet that threshold. The situation presented to Mr Hart by the claimant during the afternoon or early evening of 9 November was somewhat chaotic and was never going to be resolved instantly. There are a number of reasons why that was the case: Mr Hart plainly needed to find out exactly what happened (speaking again to Mr Jerome and possibly others on site). Mr Hart then needed to discuss the matter with more senior management before a decision could be made as to what to do. Even on the claimant’s account, Mr Hart was saying to him that his job involved manual labour. It was unlikely that the decision would be that (as a temporary measure) the claimant would be excused from heavy lifting or other activities likely to aggravate a back problem. Management might well have concluded that an inability to carry out such activities made the claimant unfit for work (and that such activities would be dangerous for him). Whatever their attitude to his back problems, management were likely to want confirmation that he was in fact fit to work normally, before any return to work. While the claimant clearly thought he was entitled to refuse to return to Borden, that had not been accepted by management. There was clearly an issue for them as to whether what was in effect a complaint by him about Mr Jerome’s behaviour was justified and meant that the claimant could not reasonably be expected to work at the same site again under Mr Jerome.[136]I would not expect Mr Hart to have simply taken the claimant’s word on those matters. The claimant could not reasonably expect his employer simply to believe his story and accept his unilateral decision not to work at the site again. That was all inevitably going to take a few days to investigate and sort out. It was possible that the final decision would be that he should return to working at Borden under Mr Jerome. I certainly do not accept that the claimant had the right simply to decide for himself whether or not to return to work at Borden. That was the site to which he had been allocated, and he was demanding to be allocated elsewhere. It may well be that for good management reasons the decision would be to allocate him elsewhere. But a decision was inevitably going to take some time.[137]I accept that it would have been desirable (and sensible) for Mr Hart to be in touch with the claimant after the phone conversation on 9 November, even if only to explain why there was some delay. But I do not see his failure to respond before 14 November about the claimant’s site allocation as being of the character necessary to constitute a breach of the implied term as at the time the claimant resigned. It was not in itself behaviour likely to destroy or seriously damage the relationship of mutual trust and confidence.[138]The claimant could easily have rung for an update or raised the matter directly with senior management, but he chose to sit back and wait. In my view the claimant acted prematurely on 14 November in resigning before he knew the outcome of his conversation on the afternoon of 9 November.[139]For the above reasons I conclude that the failure of the respondent to communicate with the claimant between 10 and 14 November 2023 (including a weekend) was not a breach of the implied term. There might have come a point when the situation had become objectively intolerable, but I do not consider that point had been reached when the claimant resigned.[140]In reaching this conclusion I considered carefully Miss Minto’s submission that the claimant was being deprived of the chance to earn, and that this is always a serious matter in terms of the employment relationship. But the reality was that, for reasons set out above, the situation presented to Mr Hart on 9 November was a muddle. The claimant had been allocated to work at the Borden site but had unilaterally decided not to report for work the next day and was demanding to be allocated elsewhere. His absence on 9 November (reported by Mr Jerome in the morning) and the following two working days might or might not have been judged acceptable by management (depending on how they viewed the incident once the facts were clearer). The claimant was not paid for the lost days in question (9, 10, 13 and 14 November), but that was largely because he resigned before the question of payment of wages (despite not turning up for work at Borden) had been raised by anyone. If he had not resigned management would have had to decide how to treat his absences on those days and whether he should be paid for the lost shifts. I cannot say what the decision would have been. But in these difficult factual circumstances, I do not regard Miss Minto’s point as being a decisive factor in the claimant’s favour in relation to the third alleged breach of the implied term. The respondent needed a reasonable time to address the issues raised by the claimant’s refusal to attend work at the Borden site (including whether that refusal was justified) and decide what to do. Do the acts or omissions of the respondent covered by the three alleged breaches, considered cumulatively, constitute a breach of the implied term[141]Miss Minto relied on the cumulative effect of the three alleged breaches as amounting to a breach of the implied term of mutual trust and confidence. She was correct to say that the applicable law requires me to consider whether, objectively, the conduct of the respondent, taken together, destroyed or seriously damaged the relationship of mutual trust and confidence.[142]To recap, the conduct in question was that involved in the following incidents-(a) Mr Whistler sending the email dated 20 October 2023 to the claimant, imposing a conditional written warning;(b) Mr Jerome swearing at the claimant on 8 November 2023; and(c) the claimant being left uncontacted for about three working days by Mr Hart following a phone call in the afternoon or early evening of 9 November 2023.[143]I have already explained my detailed reasons for not viewing any “wrongdoing” involved in each of those incidents as serious enough on its own to constitute a breach of the implied term. None of them, viewed objectively, were likely to destroy or seriously damage the relationship of mutual trust and confidence. I did not view the swearing incident as at all serious, and the claimant had the option of pursuing a complaint against Mr Jerome as a grievance. As to the other two incidents, my assessment was that any element of wrongdoing was not serious enough to have the necessary effect on the relationship of mutual trust and confidence. Another reason was that in relation to both incidents, the respondent needed some time to consider the issues raised (including in the case of the third incident, whether it accepted the claimant’s refusal to return to the site to which he had been allocated), but the problems could have been resolved within a few days. Instead of chasing up his concerns with anyone and/or allowing enough time for the respondent to address all the issues they had to consider, he simply sat back and did nothing for about 3 working days before resigning.[144]I have carefully considered whether, taking all the relevant conduct together, the respondent’s acts and omissions constituted a breach of the implied term. However, for substantially the same reasons as I have set out above in relation to each of the three incidents, I have concluded that the threshold for a breach of the implied term was not met. Viewed objectively, there was likely to be some damage to the relationship of mutual trust and confidence in relation to each incident. But the cumulative effect of that damage was not, in my view, at a level to “destroy or seriously damage” that relationship. Ultimately, I have had to take a view as to whether, on the evening of 14 November, things had got to the stage that the claimant could not reasonably be expected to tolerate the situation any longer. I do not consider that this was the position when he sent his resignation letter. The claimant could be reasonably expected to wait a little longer for his concerns to be addressed. It is impossible to know whether the outcome would have met some or all of his concerns or whether (if he was still dissatisfied) the respondent’s decisions would have amounted to a breach of the implied term. But he was premature in resigning when he did before he knew what the outcome was.[145]For the sake of completeness, I have answered the question whether the respondent had reasonable and proper cause for its conduct (Issue 2.2.2) in my conclusions on each of the alleged breaches. These involved different acts or omissions on three separate occasions, and so looking at their cumulative effect does not, in my view, alter my view on Issue 2.2.2 in relation to the conduct involved in each incident. Did the Claimant resign because of the breach(es) in question (i.e. was the breach of contract a reason for/an effective cause of, the claimant’s resignation)?[146]Strictly, this Issue does not arise because I have concluded that the conduct of the respondent involved in the three incidents (whether looked at separately or cumulatively) did not amount to a breach of the implied term of mutual trust and confidence. However I can indicate my view on the question of causation in case I am wrong on my assessment as to whether the conduct shown did breach the implied term.[147]The claimant’s position was that it was the conduct in question that caused him to resign, although he also said in his evidence that he thought the respondent wanted to get rid of him.[148]The respondent’s position was that the real reason for the resignation was his dissatisfaction with the driving time from home to the sites to which he was allocated. It also objects that the allegations of some sort of plot against him were new and not raised when the claimant resigned or when he brought his claims.[149]On the latter point, I agree with Mr Wheaton that the claim for constructive dismissal is based only on the three alleged breaches and not on any allegation of a plot to get rid of the claimant. There was no application to amend the claim, and it was plainly not open to the claimant at the final hearing to rely on such a plot as a further alleged breach. I did not understand Miss Minto to be relying on any allegations of a plot in that way. Their only relevance might have been to help demonstrate the seriousness of the conduct in question or, perhaps, that the real reason for the resignation was the claimant’s belief in a plot. However, I have concluded that the allegations are a side issue and do not need to be taken any further, as I cannot see any basis on which doing that might assist either party in relation to the Issues before me. That is mainly because there is no evidence I have identified (other than the bare assertions of the claimant) to suggest that there was any sort of concerted action against him by the respondent. If anything, the evidence tends to suggest the opposite - that the respondent’s responses to the various matters involving the claimant (including the GP’s letter and the request for an OH assessment) were not as “joined up” as perhaps they should have been.[150]I should add that I have no reason to disbelieve the claimant’s evidence about his belief that the respondent wanted him out, even though I do not consider there to be any reasonable grounds for that belief. The existence of some sort of plot against the claimant is not demonstrated by the evidence.[151]If the issue of causation did require a decision, I would have held that the conduct of the respondent in question (see paragraph 142 above) was a substantial reason for the resignation, even if there were other factors at play in his resignation. The claimant gave the alleged breaches as the reason for his resignation in his resignation letter and has always maintained they were the real reason for action in resigning. I accept from his evidence before me that they were at a substantial reason for the resignation or, put another way, that they were an effective cause of it.[152]Miss Minto correctly emphasised that a conclusion that the conduct was an effective cause of the resignation is sufficient for the claimant to succeed on the question of causation.[153]Mr Wheaton suggested that the claimant was driven to resign by his dissatisfaction at having to work at Borden, which was further from his home than he wanted. While there was evidence that the claimant was indeed dissatisfied about the driving time involved in getting to some of the sites he worked at, there is no evidence to suggest that it was the reason (or the only effective cause) for the resignation. I would expect this dissatisfaction to have been in his mind when he was deciding what to do after 9 November 2023, but that is not enough, in my view, to justify a decision that it was the real reason for the resignation.[154]There are other issues raised in the evidence that may have been in the claimant’s mind at the time of his resignation, including Concerns around the gang to which he had been assigned to work and the mix of work he was being given (i.e. normal tasks of a groundworker including heavy lifting and other heavy manual work, and less driving or other lighter duties) as compared to the work he maintains he was doing during the period from May 2021 to August 2023. His belief that the respondent wanted him “out”. What he probably thought was an unresolved issue around the advice in the GP letter dated 8 September and his later request for an OH assessment. If he was being realistic, wider concerns about his health and his capacity to carry out the duties of his job.[155]It would be understandable in the circumstances of his case for the claimant to have been worried about all those matters. However, none of them were put forward by the respondent as being “the real reason” for resigning. In any event, I have not identified anything in the oral or documentary evidence that could provide a basis for concluding that any (or any combination) of them was “the real reason” for his resignation, instead of the conduct involved in the three alleged breaches of the implied term. Any of them could have played a part in his decision to resign, but this does not affect my view that the conduct involved in the three alleged breaches was an effective cause of that decision. In the event that there was a constructive dismissal, was it otherwise fair within the meaning of s. 98 (4) of the Act? The Respondent does seek to run a positive case on that issue.[156]This Issue does not arise given my conclusion that there was no constructive dismissal. I do not make any conclusions on it because I consider it too hypothetical for me to examine the fairness of a dismissal that did not take place. Conclusion on the unfair dismissal claim[157]The claim for unfair dismissal fails due to my conclusion that the claimant was not constructively dismissed. Accordingly, that claim is dismissed. (B) The claim for wrongful dismissal (notice pay) The Claimant resigned without notice because he alleges that the Respondent was in fundamental breach of his contract as stated above. Have those breaches been made out?”[158]The claimant was entitled to one week’s notice of termination of his contract of employment or to payment in lieu of that notice. By resigning he lost his right to that notice, unless the respondent was in fundamental breach of his contract by breaching the implied term of mutual trust and confidence.[159]I refer to the conclusions I have reached on the alleged breaches relied on by the claimant in the context of his unfair dismissal claim. It follows from my conclusions on those alleged breaches (whether taken individually or together) that the respondent was not in fundamental breach of the employment contract when the claimant resigned. The means that there was no “wrongful dismissal” entitling him to payment for a week’s notice.[160]Accordingly, the claim for wrongful dismissal (notice pay) also fails and is dismissed.