Mr J Rowlands v The Co-operative Group Ltd: 1601559/2018
EMPLOYMENT TRIBUNALS
Case No 1601559/2018
Between
Mr J RowlandsClaimantThe Co-operative Group LtdRespondent
Before
Employment Judge T Vincent RyanIn person for claimantMr. L. Wilson (instructed by Counsel) for respondentDate 13 March 2020
JUDGMENT
The judgment of the Tribunal is that the claimant resigned from his employment with the respondent on 20th September 2018; he was not dismissed. The claimant’s claim that he was unfairly, constructively, dismissed fails and that claim is dismissed.
REASONS
[1]The Issues: In a situation where the claimant resigned from his employment and claims that he was constructively unfairly dismissed, the issues to be resolved were agreed as being: 1.1. Did the respondent (R) breach the implied fundamental contractual term of trust and confidence by: 1.1.1. Requiring the claimant to work in stores that “violated his right to work in a safe environment” and in breach of Health & Safety regulations? The claimant put this forward during the hearing, appeared to withdraw it and then put it forward again although he seemed to say that what mattered more was perceived lack of support (1.1.2 below). Given that he was a litigant in person, his apparent anxiety and confusion at times, I considered that this ought to remain as an issue to be resolved. 1.1.2. Not supporting him when he raised his concerns about health and safety issues in stores? 1.1.3. Pursuing the claimant for “false” disciplinary allegations in February, April, May and June 2017? The claimant later refined this in respect of events after February 2017 (when he was given a formal disciplinary warning), to “false disciplinary investigations” as he conceded that there were no further formal disciplinary proceedings in that period. 1.1.4. Failing to support the claimant after he was “physically assaulted” by a fellow employee? The claimant described the alleged assault variously, sometimes involving physical contact (“hands around my throat”, “pushing”, “pushing to my throat”) and sometimes as being a threatening non-contact challenge (“face to face”, “he was in my face”); rather than being distracted as to what does or does not amount to an assault I considered, for the reasons stated at 1.1.1 above that it would be fair to give the claimant the benefit of the doubt and to resolve the issue in relation to an altercation that distressed him (the important issue being that something challenging went on that distressed him, that he raised it with the respondent and he feels he did not receive support). I will refer to the incident as “the alleged assault”. 1.2. Did the claimant (C) resign in response to R’s said conduct? 1.3. Did C delay, affirm, his contract notwithstanding the conduct of which he complains? 1.4. If in consequence of the above findings C was dismissed, was that dismissal fair (for a potentially fair reason and did R act fairly and reasonably in treating that reason as sufficient reason to dismiss)? 1.5. If C was unfairly dismissed to what extent, if any, ought any Award be reduced to reflect the risk of his being fairly dismissed and his contributory conduct? 1.6. General observation on the issues and the conduct of the case: 1.6.1. The claimant represented himself in this case; he attended each day of the hearing alone and without any apparent support. He revealed on the second day that on each day after the hearing he had to work a night shift in his new employment between 6 p.m. and 3 a.m.; he attended the hearing tired. He frequently showed signs of frustration and exasperation that seemed stress-induced (although this is a general observation and I have no medical expertise). 1.6.2. I accept that the claimant tried to remain courteous and I do not at all criticise the claimant for evidencing his anxiety, lack of preparedness and difficulty with the complexities of the case. 1.6.3. The claimant had received the trial bundle as an email attachment and it seems had only printed it out late but without having read all of it prior to the hearing in that paginated format (he was familiar with the documents themselves); that said some, but certainly not all, of the claimant’s submissions, cross-examination questions, and evidence was confused and confusing. 1.6.4. The claimant repeatedly became upset when he did not understand what was being said or explained; he repeatedly referred to the respondent’s witnesses and even Counsel as liars and he criticised documents with which he did not agree calling them “fake”; he accused the respondent repeatedly of falsifying documents but without adducing evidence to support such assertions. 1.6.5. In accordance with the overriding objective I took time to explain matters to the claimant and to clarify many of his questions and submissions; when calm he would be grateful and appreciative, and for these reasons as I have said I did not consider that he was being intentionally problematic or disruptive. Because of repeated interventions on my part in order to calm the claimant and assist in a clear exposition of the evidence so that I could address the above issues I became wary of giving the respondent the impression that I was too favourably disposed to the claimant to its detriment; I consider that my actions fell squarely within my duty to ensure a fair hearing in accordance with the tribunal’s overriding objective and I am grateful to Mr Wilson for not raising any objection to the impartial assistance that I gave to the claimant. 1.6.6. All told, this explanation bears out that there were various factors that I had to take into account when resolving the issues fairly to ensure that the claimant’s personal case management did not count against him; it did not. In so far as the claimant’s manner and delivery may have raised doubts about the merits of his arguments I have given him the benefit of the doubt in so far as I reasonably could; I have taken his evidence and submissions at their highest, giving due allowance for the claimant’s circumstances as a litigant in person as described. 1.6.7. What was more concerning than the above was an apparent shift in emphasis by the claimant from his claim that he resigned from his employment on 20 September 2018 to his attempts to rephrase that as a request for a transfer such that he did not terminate his employment; in the light of the claimant’s attempts to argue that it was the respondent who terminated his employment I have had to resolve this matter as a further issue, notwithstanding the fact that from the outset the claimant alleged constructive unfair dismissal and has maintained that stance during previous preliminary hearings and until he was giving his oral evidence. What the claimant was however at pains to point out and repeated on several occasions was that he was not alleging that he resigned for any one of the above four alleged breaches of the implied term but rather what he referred to as “a culmination of incidents over 8 months” where he considers that he was subjected to bullying and harassment. Despite my frequent reference to the agreed issues and the claimant’s confirmation of them he did not specifically raise as a breach of trust and confidence any alleged failure by the respondent to deal with alleged bullying by a colleague, JB, but he gave evidence about it; I have addressed this too.[2]The Facts: 2.1. The respondent: 2.1.1. R is a large employer with written policies and procedures, an Employee Assistance Programme, and An in-house professional HR function (ERS) which advised management on all matters concerning its personnel. 2.1.2. This claim concerns its grocery retail arm. The retail stores are managed to national, legally enforceable health and safety and food hygiene standards enforceable by the local authority in which each store is situated, albeit the Primary Authority (given the location of the respondent’s headquarters) is Manchester City Council. R operates policies and procedures on food hygiene that use those legal requirements as a base only and they require a higher standard in respect of food storage, display and disposal to “give some leeway”. 2.1.3. The significance and importance of such standards to the R’s customers, commercial success and brand are taken seriously by Area Managers and ought to be so by all store managers; naturally any snapshot of a store could show deficiencies due to human error or otherwise. All staff are trained in respect of food hygiene policies and legal requirements to levels appropriate to their roles; everyone employed by R in stores relevant to these proceedings at the relevant time did not always perform to their best on all occasions and deficiencies were managed, and line-managed, by R in accordance with its applicable policies and procedures. 2.1.4. Stores are routinely and periodically formally audited, and as otherwise required (such as to check that any recommended remedial action from a previous audit has been taken); audit reports are prepared; these reports identify deficiencies in practice with comments and a score of passes or failures against a set number of criteria; the typed report is sent to the store in question as a PDF so that it cannot be amended but it is printed off and the store manager then uses it as a live document, adding his/her comments, required remedial action, the identity of the employee responsible for each action and the date(s) of completion of that action. Staff are trained to identify issues relating to matters such as food hygiene and general safety and to take appropriate remedial action or otherwise to report matters to their store manager (or to escalate issues to the Area Manager). The respondent’s policy, regarding in-store issues such as in respect of food hygiene and tidiness, as well as staff grievances and disciplinary issues, is to attempt informal resolution in the first instance if reasonably practicable and appropriate; this might involve discreet initial enquiry without making matters widely known; formal procedures are engaged as a last resort when an informal approach is deemed inconclusive or when issues are so serious that formal proceedings are more appropriate. R operated in accordance with this description of its practice throughout the relevant period. 2.1.5. The national chain of stores is organised in numbered Areas; this claim concerns in particular Area CE0301 comprising the mid and west of the north Wales coast (from St Asaph to Holyhead) and the Snowdonia hinterland as far south as Bala. There are 20 stores and approximately 320 employees within this area which was managed at the relevant time by Mr Carl Petterson, from whom I heard evidence. 2.2. The claimant: 2.2.1. C was employed by the respondent from August 2016 until his resignation with immediate effect on 20 September 2018; throughout that time he was employed in a retail setting in various stores, primarily and latterly at Rhos-on-Sea; initially his line manager was Mr John Jones and in March 2018 he was succeeded by Mr Steve Jones; I heard evidence from both of them. 2.2.2. In November 2017 the claimant was promoted to T 3 Team Leader, where a store manager is entitled T 1 and the assistant manager T 2. The claimant was a conscientious and diligent Team Leader as he had been retail assistant; the respondent appreciated that the claimant was a good worker. 2.2.3. Albeit C’s principal place of work towards the end of his employment was Rhos-on-Sea, he would also help out at stores such as Rhuddlan (where he started), but most often at Pensarn which he would pass on his way home from Rhos-on-Sea. The store at Pensarn was problematic and the store manager required additional assistance. When the respondent asked the claimant whether he would provide that assistance he would agree willingly and he took his responsibility seriously. The claimant’s contract gave flexibility as to location providing that notice, expenses, and pay for travelling time was given when the claimant was working elsewhere than his principal store. The respondent did not insist or require that the claimant work anywhere other than Rhoson-Sea but did request on occasions that the claimant make himself available to give such assistance. When C worked in other stores his contractual right to re-imbursement was honoured by R. 2.2.4. The claimant received all appropriate training including in food hygiene regulations and the respondent’s in-house standards and rules commensurate at all times with his role. That said, there were occasions when the claimant felt that he did not have the training required to deal with all of the issues and problems that he faced when giving assistance at Pensarn. The claimant was sufficiently trained in respect of the respondent’s standards, the chain of management and the requirement to escalate matters to the appropriate level. The claimant clearly demonstrated throughout his employment that he knew the food hygiene regulations sufficiently well, was protective of the respondent’s standards, wished to do a good job, and that he was not at all hesitant in escalating matters as appropriate when he could not deal with them. When the claimant found deficiencies in any store in which he was working he would raise the matter with the store manager or assistant. On occasions he would escalate his concerns to the area manager. He developed the practice of taking photographs within a store and circulating those as appropriate to more senior managers with his comments, observations, and queries. 2.3. Health and safety issues: 2.3.1. C frequently recognised deficiencies at stores and in particular where he felt the respondent’s standards and/or food hygiene regulations had not been met. The claimant regularly rectified issues in accordance with his contractual duties. Often the claimant, even when at the Pensarn store, would raise matters with his immediate line manager or store manager at Rhos-on-Sea. He could not physically, in the time allowed, always put right all problems that he encountered; he would however do his conscientious best and would follow instructions given to him by higher management. His own store manager would give him advice and guidance on how to approach matters. 2.3.2. The claimant’s various reports regarding deficiencies in any store were duly considered by the claimant’s own line managers, the store managers Mr John Jones and latterly Mr Steve Jones at Rhos-on-Sea, Mr Stu Roberts at Pensarn, and the area manager, Mr Petterson. The general practice was for the relevant manager to acknowledge the claimant’s message (often sent by WhatsApp) and to either give the claimant an instruction or, whilst giving an instruction, also ensuring that the matter was raised with someone else in store. For example, the claimant’s complaints about the Pensarn store that he raised with Mr Petterson were raised by Mr Petterson with Mr Roberts the manager. The manager would be required to effect remedial action that had been left unattended to by the claimant. When the claimant reported matters to, for example Mr Steve Jones back in Rhos-on-Sea, Mr Jones would counsel the claimant on what to do such as to concentrate on putting right the matters he was able to remedy in the available time (“the quick wins”); on occasions Mr Jones would then raise those matters with Mr Roberts at Pensarn. No more or less was expected of C. R’s managers followed their internal practices. 2.3.3. As such matters were always dealt with informally, orally or by WhatsApp messaging, there was no contractual requirement on R to effect a formal reporting back system or to provide C specifically with reports on in-store hygiene. He did not raise a formal grievance about such matters during his employment; there was no reason for R’s managers to believe that C expected any more formal feedback than he received. C was not contractually entitled to be informed of any coaching or disciplinary matters in respect of colleagues whose work at any time fell below standard, as highlighted by C. 2.3.4. The claimant was not criticised, let alone disciplined or subjected to any detriment, either for hygiene deficiencies within stores or for his having raised such matters with his line managers. His diligence was appreciated and his reports were acted upon. The reports made and remedial action effected by the claimant were within his job role as set out in his job description. He was doing his duty. The claimant felt underappreciated and that he did not get due support because he says he was not told what action, if any, the respondent had taken in relation to matters which he raised. The respondent put into effect its usual management support systems including reporting and guidance backed up by routine audits. 2.3.5. C did not make any formal complaint or raise a grievance under the grievance procedure either in relation to matters that he raised or the respondent’s response to those matters. The assistant managers, managers and the area manager accepted all of this as the normal running of each store. This frustrated the claimant. During the hearing he also illustrated his frustration when he pointed out what he considered to be breaches of food hygiene regulations when some of the respondent’s managers give evidence to the effect that what he was pointing out was compliant with the respondent’s own standards, which are themselves higher than the regulatory minimum. I was not taken to the respondent’s standards or in any detail to the food hygiene regulations, and I find, that there was some element of misunderstanding by the claimant as to some of the requirements of the standards/regulations. The respondent’s management did not consider that all the matters raised by the claimant were as serious as they were perceived to be by the claimant. The claimant became emotionally wound up during the hearing at this and I find it more than likely he did so during his employment, which is evident from his WhatsApp messages. He was not getting the reaction he sought at work just as he did not get all of the answers he hoped to get during the hearing; the respondent’s managers conscientiously believed that they were acting in accordance with standard policies, procedures, contracts of employment/job descriptions (in relation to duties and responsibilities) and applicable regulations. 2.4. “False Disciplinary” Investigations: 2.4.1. On 17 February 2018 a cleaner at the Rhos-on-Sea store reported that products that had been marked “reduced to clear” (RTC) had been disposed of in the wrong bin in circumstances where they should not have been binned in public bins but properly accounted for and disposed of internally. One of the retail assistants had asked the claimant, in his position as T 3 Team Leader, how to dispose of some RTC items. There was evdince before R to the effect that C effectively said that he did not care, and he did nothing to prevent the assistant disposing of them in a public bin; R was led to believe that the claimant was aware that he had done so. This was captured on CCTV footage. At that time John Jones was the store manager and he investigated the disposal of RTC products. During an investigatory interview when he was interviewed by his then manager John Jones, there was an angry and frustrated outburst by the claimant. His exact words are uncertain but it appears that the claimant said to John Jones either “fuck this!”, “fuck off!”, or “fuck you”, and he said: “I’m not doing this fucking shift”. Mr Jones was taken aback; this was unprecedented in a routine interview in his experience; he had not been spoken to like that by a Team Leader report during an investigation. Mr Jones felt that in the circumstances it would not be appropriate for him to carry on with the investigation and he put out a message to his managerial colleagues asking if someone would take over. Mrs Joanne Jones (also a witness at this hearing), a store manager who had been a colleague and work-related associate of Mr John Jones for some 8 years, volunteered to take over as investigatory officer; despite the claimant’s repeated assertions that Mrs Jones and Mr John Jones were close personal friends I accept their witness evidence that their friendship related to work and that they did not generally socialise, their relationship being principally that of friendly colleagues. I found no evidence of any collusion between them or any bias in favour of Mr John Jones and prejudice to the claimant in the way that Mrs Jones concluded her investigation or in her recommending disciplinary action because of the claimant’s outburst during the investigatory interview described above. Having concluded her investigation, she passed the matter to an independent disciplinary officer Mr Mark Roberts who was a store manager elsewhere. The claimant was invited to a disciplinary hearing which was held on 9 March 2018 relating to two allegations namely: 2.4.1.1. “alleged serious inappropriate conduct in that you used foul and abusive language towards your store manager on 23 February 2018 which is caused hurt and offensive (sic) as a direct breach of the bullying and harassment policy” 2.4.1.2. “alleged failure to comply with the store’s waste procedure on 17th February 2018 in that you instructed a colleague to throw items in the bin without recording them on the system as waste.” 2.4.2. At the conclusion of the disciplinary hearing Mr Roberts confirmed that the claimant would be sanctioned by way of a written warning for his conduct regarding both of the above issues. When asked if he had anything to add the claimant said: “no. I won’t let you down”. He signed the record of the disciplinary hearing. The warning was confirmed in writing. C says he did not receive that letter until many months later, and after his resignation. In any event the claimant did not appeal against the warning of which he was made aware at the disciplinary hearing; he was aware of the warning, and aware of both of the disciplinary procedure and where he could access it. He did not raise the matter again prior to his dismissal, including the alleged failure to send him written confirmation of the warning. 2.4.3. The above warning was the only disciplinary warning that the claimant received during his employment. It came about in consequence of the only disciplinary investigation and formal proceedings ever taken against him by the respondent. After the February incident and subsequent March warning the claimant was not investigated formally or informally under the respondent’s disciplinary procedure. 2.4.4. In the period between February 2018 and the claimant’s resignation in September 2018 three colleagues raised their concerns about him with their respective managers. EG and KR both informally raised their disquiet at what they believed were rumours being spread by the claimant about them. EG complained also about the way that the claimant spoke to her. AM complained informally about the claimant refusing her the opportunity to take a break at work and an argument that ensued. At different times R’s managers spoke to each of these employees, considering the matters they each raised, under the informal stage of the grievance procedure. In the event no further action was taken by any of the complainants; none of them lodged a formal grievance; the respondent took no action formally or informally against the claimant either under its grievance procedures or disciplinary procedures. Mr Steve Jones and Mr Venables, a T 2 team manager at the Rhos-on-Sea store, gave evidence to the tribunal about these matters and I accept their evidence as being truthful, such that I accept that the above-named employees raised the matters that they did in the manner described above and that the respondent treated the matter accordingly. 2.4.5. In mid-September 2018 R became aware of a Facebook dialogue in which the claimant’s posts to a colleague appeared to be aggressive and confrontational. Mr Steve Jones had reason to make enquiry of C’s colleague who was involved and he spoke to him. The claimant was absent from work at the time and he resigned before the matter was raised with him. This was a matter of genuine concern and not “false”. There was an incomplete investigation because C resigned before he could be interviewed (see 2.6.2 below). 2.4.6. Prior to these events an employee at the Rhos-on-Sea store, JB, raised, informally, a complaint that he had in relation to the manager John Jones. The claimant was informally interviewed by PT as part of the initial stages of the grievance procedure and he made some relatively comments about John Jones in an interview; to me those comments appear relatively innocuous but in any event, they were not communicated to Mr John Jones. In the event Mr Barlow did not pursue a formal grievance and Mr John Jones was not informed of what had arisen, including that the claimant had been interviewed; Mr John Jones only became aware of this several months after the claimant’s resignation. These circumstances were irrelevant to the way in which the claimant was managed by Mr John Jones or any other of the respondent’s managers. Contrary to the claimant’s forceful assertions, there was no evidence of collusion between PT, Joanne Jones and John Jones leaking or swapping information as to what had been said in interview; there is no evidence to support the claimant’s conspiracy theory that managers thereafter worked together to get him out of the business whether because of what he had said about Mr John Jones or otherwise. 2.4.7. The claimant gave evidence that JB, who had informally raised issues over Mr John Jones management, had been bullying him, calling him names and checking up on him by viewing CCTV footage of shifts. None other of the witnesses at the tribunal hearing corroborated what was said by the claimant. They said they believed JB and C had a relatively good working relationship although they would “occasionally bicker”. The claimant did not raise a formal complaint under the antibullying/harassment policy or grievance in relation to JB during his employment but he did complain to his manager, then Mr Steve Jones, about him informally. Mr Steve Jones discussed access to CCTV coverage with the claimant who was angry; he then raised the matter with all members of the management who had access to CCTV, and only manages have access, and each of them denied to him that they had viewed the CCTV of the claimant’s shifts. Mr Steve Jones was unable to ascertain in those circumstances whether anyone, or who, had done so. Mr Steve Smith explained all of this to the claimant who did not take the matter further or raise it again prior to his resignation. The claimant’s management only became aware of the specific allegations that the claimant now makes against JB during this litigation. In the absence of evidence from JB, in the light of the respondent’s witnesses evidence and that of the claimant I cannot find for certain that all the claimant’s allegations against JB are true but I am prepared to accept that on occasions JB irritated the claimant and that the claimant reacted irritably towards him. The matter was between the claimant and JB and save as mentioned above the claimant did not seek nor was he refused management support. None of these matters involving JB or CCTV footage of shifts worked by the claimant were the subject of disciplinary investigation into the claimant’s conduct. 2.5. The alleged assault on C by a colleague: 2.5.1. On 5 July 2018 the claimant was confronted in a street in Abergele by NB, an employee of the respondent who worked at the Pensarn store; both NB and the claimant were in their work uniform and the claimant was with his then girlfriend. The claimant may have been manhandled but it is difficult to make an actual finding based on his inconsistent and contradictory evidence as to what occurred; he felt challenged by NB; the claimant’s evidence is to the effect that NB took exception to the fact that the claimant had raised issues over the state and condition of the Pensarn store and I have no reason to doubt that this was the cause of the altercation. The claimant told Steve Jones about this incident. Steve Jones said that he would take up the matter with Mr Roberts, the manager at the Pensarn store as NB reported to him; he also advised the claimant in terms of work to contact the Employee Assistance Program and in terms of a criminal assault he advised him to make a formal report to the police. Mr Jones followed this up by reporting the incident to Mr Roberts, advising him of how he had counselled the claimant. Mr Jones had no authority to take further direct action against an employee in another store. The incident was in a public place and not on the respondent’s property or during the respondent working hours. The claimant did not raise a formal grievance concerning this matter during his employment. Subsequently the claimant Mr Steve Jones enquired of t C about what had happened or was happening and C re-assured Mr Steve Jones that he, the claimant, was dealing with or had dealt with the issue. Mr Steve Jones was led to believe by C that he was not required to take any further action; he did nothing more. 2.6. C’s resignation and grievance: 2.6.1. The claimant was disgruntled working in the Rhos-on-Sea store. He felt that he was not supported as he deserved in relation to his work in that store and in relation to issues that he raised concerning Pensarn. He was agitated and frustrated. He felt that everyone was against him. He did not any more want to work in area CE0301 including Rhos-on-Sea or Pensarn; he had not initially applied to work in those stores but at Rhuddlan. He made his discontent known but he did not make a formal store transfer request. He was aware that he could do so and he indicated that he was going to do so; he did not. 2.6.2. In addition to airing his dissatisfaction at work the claimant engaged in a Facebook conversation with JB. The dialogue is at pages 419 – 425; there is no evidence to support the claimant’s assertion that these documents are “massively fake”, “false” or have been “doctored”. In midSeptember 2018 Mr Venables drew to Mr Steve Jones’ attention that there had been what was called an “altercation on Facebook”. The messages were in public posts. Mr Jones considered that the claimant’s messages to JB were threatening and aggressive. He met with JB in an investigatory meeting on 16 September 2019 accompanied by Mr Venables; Mr Jones asked JB for details about the Facebook posts. JB explained that he had initially made a comment about his ex-partner which it appears the claimant had misinterpreted as referring to him and that he, JB, felt intimidated by the claimant’s reaction and response. JB also informed Steve Jones that the claimant had threatened him earlier in the year. With this information and screenshots of the Facebook messages Mr Steve Jones sought advice from the respondent’s ER services and opened a formal file with a view to investigating the claimant. In fact, that investigation did not take place and the claimant was not formally put on notice of it because he was absent from work at this time and then resigned on the 20 September 2018 before Mr Jones was able to take any active investigatory steps with regard to the claimant. Officially the claimant was unaware of the investigation. I consider it likely, on the balance of probabilities, that the claimant believed there would be consequences because of the Facebook altercation with JB, and I am satisfied that he was aware he was already subject to a live disciplinary warning regarding his abusive behaviour towards Mr John Jones. I make this latter finding on the balance of probabilities in the light of a message that the claimant sent to Mr Steve Jones on the 19 September 2018 (page 605) saying that he was not keen on finding things out from other stores when he did not hear it in his own place of work and as a result he would be raising a grievance, going on to reference his complaints about JB watching him on CCTV and how he felt he had been harassed by JB; I do not accept it as a coincidence that in complaining about finding out information and referring to a grievance the claimant also referenced JB and specifically “the status” which he accepts was a reference to a Facebook dialogue. 2.6.3. On 20 September 2018 the claimant wrote a letter of resignation which appears at page 153 and it was accompanied by a grievance that is at pages 154 – 155. The resignation was to take effect immediately. It was accepted by R. The effective date of termination of employment, by way of resignation, was 20th September 2018. 2.6.4. In his resignation letter the claimant cites the following reasons for resigning: 2.6.4.1. “working conditions making position untenable” 2.6.4.2. “lack of support” from higher management 2.6.4.3. his attached grievance letter. 2.6.5. In his accompanying grievance letter the claimant cites: 2.6.5.1. complete breakdown in communication with area manager to the point where he felt unable to raise issues of any feedback without causing an argument 2.6.5.2. raising “big issues” with Mr Steve Jones regarding “JB persistent harassment and bullying” 2.6.5.3. the Rhos-on-Sea store being understaffed such that he was overworked some weeks 2.6.5.4. being at breaking point both physically and mentally as he worked mostly on night shifts where there was a shortage of staff 2.6.5.5. feeling on edge and wary because he was being watched by JB 2.6.5.6. Mr Steve Jones “doing very little to intervene” especially with regard to JB and the CCTV issue 2.6.5.7. not being able to raise the matter beyond Mr Steve Jones because of a breakdown in the working relationship with Mr Patterson 2.6.5.8. feeling pushed out and forced to resign. 2.7. The claimant did not raise in his grievance that he was required to work in an unsafe working environment, that he was subjected to “false” disciplinary investigations”, that there was a lack of support following any alleged assault in July 2018. In his claim form (which I accept was prepared by the claimant as a litigant in person) he said that having been bullied and harassed for 8 months his position became untenable “causing me to resign due to feeling uncomfortable and undermined to the point I was unable to do the job I was employed to do”. He went on to complain that he had not been trained or equipped to do his job, that he worked unpaid in another store, he faced constant investigations and was made to feel uncomfortable “by fellow manager’s persistent viewing of CCTV”, being undermined and belittled and laughed at including by name-calling (being called “David Brent from the office”). He says he felt bullied and harassed into resigning as management refused to intervene and that he had no support from management in addressing issues but only doing investigations conducted against him. 2.8. I find that the claimant was unhappy at work and with his colleagues. He felt that he was under scrutiny which he considered to be unfair and he generally felt a lack of support. These were the reasons for the claimant’s resignation. 2.9. Subsequent events: Notwithstanding the claimant’s resignation the respondent formally considered his grievance. He was asked whether he wanted the respondent to consider employing him, re-instating him, or reengaging him in another store outside North Wales. This was not an offer of employment and re-deployment. It was a query as to the claimant’s desired outcome and consideration, without commitment, of alternatives. In the event the respondent did not make an offer of re-instatement or re-engagement. The claimant’s resignation had been accepted. In all the circumstances the respondent did not consider it appropriate to have the claimant back.[3]The Law: S.94 Employment Rights Act 1996 (ERA) establishes an employee’s right not to be unfairly dismissed. S.95 ERA sets out the circumstances in which an employee is dismissed which includes where an employee terminates the contract of employment (with or without notice) in circumstances in which he or she is entitled to terminate it without notice by reason of the employer’s conduct (a constructive dismissal).3.1 It is well established that for there to be a constructive dismissal the employer must breach the contract in a fundamental particular, the employee must resign because of that breach (or where that breach is influential in effecting the resignation), and the employee must not delay too long after the breach, where “too long” is not just a matter of strict chronology but where the circumstances of the delay are such that the employee can be said to have waived any right to rely on the respondent’s behaviour as the basis of their resignation and a claimed dismissal.3.2 The breach relied upon by an employee may be of a fundamental express term or the implied term of trust and confidence and any such breach must be repudiatory; a breach of the implied term will be repudiatory, meaning that the behaviour complained of seriously damaged or destroyed the essential relationship of trust and confidence. Objective consideration of the employer’s intention in behaving as it did cannot be avoided but motive is not the determinative consideration. Whether there has been a repudiatory breach of contract by the employer is a question of fact for the tribunal. The test is contractual and not one importing principles of reasonableness; a breach cannot be cured and it is a matter for the employee whether to accept the breach as one leading to termination of the contract or to waive it and to work on freely (that is not under genuine protest or in a position that merely and genuinely reserves the employee’s position pro temps).3.3 As to whether a claimant has resigned as a result of a breach of contract, where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, rather than attempting to determine which one of the potential reasons is the effective cause of the resignation.3.4 Even if an employee establishes that there has been a dismissal the fairness or otherwise of that dismissal still falls to be determined, subject to the principles of s.98 ERA. That said it will only be in exceptional circumstances that a constructive dismissal based on a repudiatory breach of the implied term will ever be considered fair.3.5 “In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions” Kaur v Leeds Teaching Hosp [2018] EWCA Civ 978 (Per LJ Underhill):(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?(2) Has he or she affirmed the contract since that act?(3) If not, was that act (or omission) by itself a repudiatory breach of contract?(4) If not, was it nevertheless a part (applying the approach explained in Omilaju [that “the function of the Employment Tribunal when faced with a series of actions by the employer is to look at all the matters and assess whether cumulatively there has been a fundamental breach of contract by the employer”]) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik [trust and confidence] term? (If it was, there is no need for any separate consideration of a possible previous affirmation, [because: “If the tribunal considers the employer's conduct as a whole to have been repudiatory and the final act to have been part of that conduct (applying the Omilaju test), it should not normally matter whether it had crossed the Malik threshold at some earlier stage: even if it had, and the employee affirmed the contract by not resigning at that point, the effect of the final act is to revive his or her right to do so”).(5) Did the employee resign in response (or partly in response) to that breach?[4]Application of law to facts: 4.1. Did the respondent (R) breach the implied fundamental contractual term of trust and confidence by: 4.1.1. Requiring the claimant to work in stores that “violated his right to work in a safe environment” and in breach of Health & Safety regulations? The respondent did not require the claimant to work in stores that violated his said right. Some stores at sometimes were unsatisfactory and as a snap shot of their state and condition criticisms could be made. The claimant has not established that his health was at any time at risk because of any breach of food hygiene regulations. At times conditions could have been improved, such as storage and tidiness at Pensarn, but sorting out temporary issues was part of the claimant’s job. He did that. He was also required where appropriate to escalate matters; he did that too. Management responded appropriately and the respondent’s auditing ensured this. The claimant was annoyed at the extent of the work he was doing without what he considered to be adequate staffing levels but his attendance at Pensarn was his option; he was conscientious; he agreed to visit the store when asked but he was not required to attend. If he really thought that he was in danger then he put himself there. The respondent did not endanger him. Some of the conditions that the claimant felt were unsatisfactory from a hygiene point of view were in fact within R’s policies, approved by the local authorities concerned. The claimant did not resign because of this matter in terms of his genuinely feeling that he was imperilled by working conditions. The alleged breach of contract is not made out anyway. There was no breach of then implied term in this respect. 4.1.2. Not supporting him when he raised his concerns about health and safety issues in stores? The claimant felt aggrieved about what he perceived to be a lack of support and he resigned, at least in part, because of this. The respondent did support the claimant. It took up matters with responsible senior managers; it followed its audit process; he was given guidance and support in messages when he highlighted issues. He did not receive the re-assurances and plaudits that he hoped to receive; he was not contractually entitled to them; he was not ignored or criticised. Whereas senior managers considered his raising matters to be part of his job, as was his taking reasonable remedial action, the claimant wanted more attention, both to himself and to his efforts. That is understandable and I do not criticise the claimant for it. It was not however a breach of the implied term for the respondent to fail to meet the claimant’s high expectations, expectations that he would receive reports of action taken including with regard to counselling or disciplining of colleagues. The claimant did not raise a grievance prior to his dismissal such that he failed to put the respondent on notice that he considered his disquiet or their perceived lack of vocal support a resignation matter; that might have led to the respondent having to be more formal or effusive in expressing support to placate him. The respondent did not act in a manner designed or likely to destroy or seriously damage the relationship in the circumstances. The claimant’s unstated (in terms of a pre-resignation-grievance) dissatisfaction was based on a misperception and a subjective over-sensitivity, probably in circumstances where he felt that he was being scrutinised and victimised by management and by his colleague JB; although there is no evidence of this. This alleged breach of contract is not made out. 4.1.3. Pursuing C through “false” disciplinary investigations. 4.1.3.1. The claimant was investigated and disciplined in February 2017 for a proven breach of policy in respect of disposal of RTC items when he was the junior manager responsible for the store and staff at the time, and following his outburst against John Jones at the investigation stage, on the basis of evidence; he seemed to accept his fault at the disciplinary hearing; he was aware of the warning administered and he did not appeal against it. That investigation was not “false”. 4.1.3.2. Subsequently, certain colleagues raised their respective grievances against the claimant informally; they were considered informally and in accordance with the respondent's policies and procedures; he was not formally investigated, put through disciplinary proceedings or sanctioned. The enquiries made by the respondent did not amount to disciplinary investigations, let alone false ones. The respondent had no reason to believe that the claimant’s colleagues were acting in bad faith and the respondent owed them a duty to look into their concerns as it did. 4.1.3.3. Latterly R opened a file with a view to investigating the Facebook posts between C and JB. The posts cross-referenced work; they were colleagues in the same store; on enquiry JB said that he found C’s posts to be intimidating and that previously he had found C to be threatening; C had previously complained that JB was viewing him at work on CCTV. In these circumstances any investigation was genuinely appropriate and not “false”. It is also of a different nature, for all of the reasons stated in this paragraph describing the incident, to the alleged assault which C raised with Steve Jones (which did not involve colleagues in the same store and under the same manager and which was, if true, more appropriately a police matter; in any event there is no evidence from Stu Roberts as to what action he did take at Pensarn over C’s allegations). 4.1.3.4. The respondent did not breach the implied term in respect of these matters. There was no breach of contract by the respondent. 4.1.4. Failing to support C after “the alleged assault”. Mr Steve Jones gave the claimant appropriate advice and guidance both as to available resources of support within the respondent’s business and from the police; he took up matters with the alleged perpetrator’s manager; the claimant re-assured him that matters had been or were being sorted out by him. The respondent did not breach the implied term in this respect either. Mr Steve Jones was entitled, having taken appropriate steps, to accept the claimant’s re-assurance that matters were resolved or being so; it was a personal issue for the claimant. 4.2. Did the claimant (C) resign in response to R’s said conduct? 4.2.1. The claimant was disgruntled and unhappy at work feeling over worked and under-appreciated, critical and suspicious of colleagues especially JB. I also find on the balance of probabilities that, knowing he was subject to a written warning, he was wary of the risk of further disciplinary action relating to his Facebook discourse with JB. Before finding out unofficially of the investigation into his conduct the claimant was content to continue in the respondent’s employment but would have liked to transfer to another store; his problem was with his local colleagues, and also what he felt were poor standards at Pensarn. The respondent had not by then breached his contract, and neither did it subsequently. 4.2.2. The claimant’s letter of 20th September 2018 is clearly in terms of resignation and cannot be read as a request for a transfer. He uses the word “resign” and he adds “with immediate effect”, which would be inconsistent with a request merely to transfer which would necessarily involve a period of discussion, a search for a vacancy and transitional arrangements which would not be at his immediate demand. His attached grievance talks of a “breakdown in the working relationship” and that he was taking legal advice. The claimant did not return to work after 20th September 2018. He sought what he referred to as “re-instatement”, implying that his employment had ended but that the relationship was considered tenable in another store. His problem or issue at work was in a particular store or at worst Area, and not with the respondent generally. He presented a claim of constructive unfair dismissal following ACAS early conciliation. His suggestion at this hearing that he did not resign is untenable. His resignation was clear and unequivocal. It was accepted. The claimant resigned from his employment with R. 4.3. Did C delay and affirm his contract notwithstanding the conduct of which he complains? The claimant ultimately resigned because of the investigation into his Facebook altercation with JB. He had put up with the conduct of which he complains, which did not amount to a breach of contract anyway, for some time. In the absence of a pre-dismissal grievance or formal complaint it is difficult to say that he was only working under protest or reserving his position as to whether the contractual relationship was viable. His irritation was with his colleagues and that is not uncommon; he put up with it and worked on until he discovered that he was under investigation. As C complains of a culmination of events and the allegations fed his sense of injustice, however unjustifiably, I cannot say that the claimant ever truly accepted and put any of these matters behind him; there was no real affirmation. His issues were, to him at least, a running sore. R’s conduct however did not anyway amount to a breach of contract. 4.4. If in consequence of the above findings C was dismissed, was that dismissal fair (for a potentially fair reason and did R act fairly and reasonably in treating that reason as sufficient reason to dismiss)? C was not dismissed. He resigned.[5]If C was unfairly dismissed to what extent, if any, ought any Award be reduced to reflect the risk of his being fairly dismissed and his contributory conduct? If it could have been said that R breached the contract of employment I would have said C contributed to his own downfall substantially. He ought to have rasied a formal grievance or at least made it clear what he needed by way of feedback on issues within the stores; it appears that colleagues complained about him such that R was obliged at very least to investigate their grievances at an informal level; he re-assured his line manager that he was dealing with, or had dealt with, the alleged assault and did not need any further managerial intervention. It would be inequitable to ignore these features in assessing compensation if C were to establish that R had dismissed him but its conduct in respect of these matters.[6]Kaur v Leeds Teaching Hosp [2018] EWCA Civ 978 6.1. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? C complains latterly about finding out about issues out of store and I have found that this is a reference into the initial stages of Steve Jones’ investigation onto the Facebook altercation with JB, which cross-referenced work issues; they were colleagues at the same store at the time. C has also explicitly complained of “false investigations”. 6.2. Has he or she affirmed the contract since that act? No. 6.3. If not, was that act (or omission) by itself a repudiatory breach of contract? No, for the reasons stated above. An issue potentially impacting work was drawn to Steve Jones’ attention. There was “documented” evidence of it. JB explained that he felt intimidated and threatened by C. This was a matter to be investigated. Steve Jones sought HR advice and opened a file but took no further action in C’s absence. This was normal, and it was good practice. It was in accordance with R’s policies. It was not a breach of C’s contract. 6.4. If not, was it nevertheless a part (applying the approach explained in Omilaju [that “the function of the Employment Tribunal when faced with a series of actions by the employer is to look at all the matters and assess whether cumulatively there has been a fundamental breach of contract by the employer”]) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik [trust and confidence] term? (If it was, there is no need for any separate consideration of a possible previous affirmation, [because: “If the tribunal considers the employer's conduct as a whole to have been repudiatory and the final act to have been part of that conduct (applying the Omilaju test), it should not normally matter whether it had crossed the Malik threshold at some earlier stage: even if it had, and the employee affirmed the contract by not resigning at that point, the effect of the final act is to revive his or her right to do so”). No. None of the individual complaints amount to breaches of contract and neither are they when any are taken together. C’s case is that this is about an accumulation of events over time. That said R has acted appropriately throughout, and C’s claim is based on ill-founded sensitivity and an unjustifiable opinion that only he was ensuring high standards and that everyone was out to get at him; there is no evidence of this. C lacks objectivity. He has an exaggerated view of the short-comings of colleagues and an overly suspicious view of interactions with management, betraying most of the time his oft-stated (at this hearing) belief that there was a conspiracy because of what he said about John Jones in relation to JB’s complaint about him; that is just not a credible conspiracy theory. John Jones was unaware of C’s statement; it was not a matter that interested or concerned other managers and was irrelevant to any subsequent conduct by R. 6.5. Did the employee resign in response (or partly in response) to that breach? C did resign ultimately over the JB/Facebook enquiries, which added to his disgruntlement at working in this Area with what he considered to be a lack of support while he was working hard but being picked on including by “false” investigations; the informal early stages of that investigation did not, on its own or as a final straw, provide grounds on which to claim that he was constructively unfairly dismissed. A final straw does not have to be a stand-alone breach of contract but it cannot be an innocuous act. Opening an investigation file in these circumstances was a neutral act; all outcomes were available to R. C pre-empted the enquiry in circumstances where he could potentially have secured a satisfactory outcome, including that no formal disciplinary sanction would follow against him but might have been in respect of JB; he will never know because he took the initiative by resigning for his own reasons.