G Mitchell v Heart of Yorkshire Education Group: 1800155/2024
EMPLOYMENT TRIBUNALS
Case No 1800155/2024
Between
Gareth MitchellClaimantHeart of Yorkshire Education GroupRespondent
Before
Employment Judge RakhimNot represented for claimantMr J Shepherd (instructed by counsel) for respondentDate 30 September 2024
JUDGMENT
[1]The claimant’s complaint for constructive unfair dismissal is not well founded and is dismissed.
REASONS
[1]The Claimant brings a claim for constructive unfair dismissal against his former employer, the Respondent.[2]The Claimant was employed in various roles, including as a Curriculum Development Manager (‘CDM’) on 20 September 2020. He was employed by the Respondent from 18 August 2014 until 24 November 2023.[3]The Claimant started the ACAS early conciliation process on 19 December 2023. The ACAS certificate was issued on 10 January 2024. The claim was presented, in time, on 10 January 2024. 1 of 15
The hearing
[4]The hearing took place by way of a CVP remote hearing with both parties joining remotely. The Claimant was not represented and the Respondent was represented by Mr J Shepherd, counsel.[5]I was assisted by a 329 page bundle. I was also provided with witness statements from the Claimant and from both witnesses for the Respondent. I was also provided with a chronology, cast list and the counter schedule of loss. The parties confirmed there were no additional documents.[6]All witnesses affirmed, adopted their statements and had no requirements for any adjustments.[7]I heard oral evidence from the Claimant. I also heard evidence from the following on behalf of the Respondent:a. Ms S Wright (‘SW’), Chief Executive Officer and Accounting Officer;b. Ms L Cross (‘LC’), Group Executive Director.[8]The Claimant was cross-examined on his evidence. He did not initially consider he had any questions of the Respondent witnesses, but was allowed time over lunchtime to consider any questions. Upon resuming, the Respondent witnesses gave evidence for approximately an hour and the Claimant cross-examined them both.[9]I then heard submissions from Mr Shepherd for the Respondent, followed by the Claimant. At the end of the hearing, I reserved my determination as the submissions finished close to the end of the day and the matter was listed for a single day hearing.[10]In reaching my decision, I have carefully considered the oral and documentary evidence, the closing submissions, and my record of proceedings. The fact that I have not referred to every document in the evidence bundle should not be taken to mean that I have not considered it.[11]Where it has been necessary to make a finding of fact in respect of contested matters, I have done so by deciding which version of events is more likely, taking the evidence in the round.
Background
[12]The following facts are not disputed between the parties.[13]The Respondent is a further education provider to over 9,000 students and the college operated across three campuses; Castleford, Selby and Wakefield. The Respondent serves students beyond the age of 16 and provides apprenticeships, higher education, adult qualifications and distance learning. There is a variety of full and part-time courses. The Respondent also provides work-based training programmes in conjunction with employers.[14]The Claimant commenced employment with Respondent on 18 August 2014. He became a Curriculum Development Manager (‘CDM’) on 28 September 2020, supporting and reporting to the Head of Engineering and Automotive, namely GS. He held this role until he resigned on 26 November 2023. The Claimant spent most of his time working in the Automotive department, which was also known as the Motor Vehicle department. 2 of 15[15]The Claimant’s role as a CDM involved assisting in managing the department. There was no line management or budget responsibility whilst GS was still working there. However, alongside supporting GS generally, the Claimant had responsibilities for timetabling, attendance management, student retention, staffing and class cover.[16]GS notified his intention to resign on 6 March 2023. The Claimant was then requested to undertake further management for the Engineering department and an honorarium payment of £1,500 was made on 13 March 2023 to reflect the change of duties over the interim period. A second honorarium payment of £1,500 was then made on 5 July 2023.[17]GS left on 19 May 2023. In the meantime, an interim replacement was found for him, in the form of SC, who started on 17 April 2023. A permanent replacement was then found in the form of GC who started in that role on 22 August 2023.[18]Two days later after GC started, the Claimant emailed his resignation to GC and SC on 24 August 2023.[19]The Claimant met SW who attended this hearing to give evidence, on 30 August 2023 and it was agreed that the process of recruiting to replace the Claimant would be paused to allow the Claimant time to reconsider his decision. However, on 4 September 2023 the Claimant emailed GC and LC to notify his intention to proceed with his resignation.[20]Within his notice period, the Claimant was on sick leave from 21 September 2023 to 30 October 2023. He worked the rest of his notice period upon return.[21]The Claimant submitted a grievance on 23 November 2023 and left the following day on 24 November 2023. The grievance meeting took place on 5 December 2023 and the outcome letter was issued on 14 December 2023.
The issues
[22]At the hearing before me, the parties agreed that the following issues fall to be determined in this case: i. Had there been fundamental breach of the contract by the Respondent (in relation to the implied term of trust and confidence)? ii. Did the Claimant resign in response to any breach by the Respondent? iii. Was there any delay, such that it would amount to affirming the contract? iv. If the above is satisfied, then the issue of remedy.[23]The Respondent’s counsel confirmed at the outset that the issue of fairness did not need to be considered, as the Claimant would succeed in the unfair dismissal claim if he succeeded in establishing breach. Both parties agreed the issue of remedy did not involve any consideration of contributory fault or any polkey reduction.
The Law
[24]The Claimant claims that he had been constructively dismissed. He resigned following, he says, acts or omissions by the Respondent which, he says, amounted to a breach of the implied term of trust and confidence. The relevant law is as follows.[25]Section 95(1)(c) of the Employment Rights Act 1996 (‘ERA’) state that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct. 3 of 15 This form of dismissal, which originally developed under the common law, is generally referred to as ‘constructive dismissal’ and is, in contractual terms, a discharge by breach.[26]In the leading case in this area, Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, CA, the Court of Appeal ruled that, for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract. As Lord Denning MR put it: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed’[27]In order to successfully claim constructive dismissal, the employee must establish that: i. there was a fundamental breach of contract on the part of the employer, ii. the employer’s breach caused the employee to resign, iii. the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[28]Where an employee has mixed reasons for resigning then their resignation will constitute a constructive dismissal provided that the repudiatory breach relied on was at least a substantial part of those reasons - Meikle v Nottinghamshire County Council [2004] EWCA Civ 859, [2005] ICR 1.[29]A breach of the implied term as formulated in Malik v BCCI; Mahmud v BCCI [1997] 1 IRLR 462, will only occur where there was no ‘reasonable and proper cause’ for the conduct in question. The burden of proving the absence of reasonable and proper cause lies on the party seeking to rely on such absence — RDF Media Group plc and anor v Clements [2008] IRLR 207, QBD. As in that case, this will usually be the employee.[30]An employer’s failure to engage with an employee’s grievance in a full and fair way may lead to a finding that it has breached the implied term of trust and confidence. So, for example, if what lies at the heart of an employee’s grievance is a legitimate complaint that the employer’s conduct has caused significant detriment to the employee’s earnings, the unfair rejection of that complaint may well comprise a breach of trust and confidence — see Nicholson v Hazel House Nursing Home Ltd EAT 0241/15. As Mrs Justice Laing observed in that case: ‘Wrongly to reject such a grievance is a significant matter.’ Of course, the substance of the employee’s grievance may itself contain allegations that amount to a breach of trust and confidence, but that is another matter.[31]A constructive dismissal is not necessarily an unfair one — Savoia v Chiltern Herb Farms Ltd 1982 IRLR 166, CA. A breach of trust and confidence may also arise not so much from the unfair rejection of a grievance as from the way in which the grievance was handled. In WA Goold (Pearmak) Ltd v McConnell and anor [1995] IRLR 516, EAT, the EAT upheld an employment tribunal’s decision that an employer is under an implied duty to ‘reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have.’[32]A course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a ‘last straw’ incident even though the last straw by itself does not amount to a breach of contract — Lewis v 4 of 15 Motorworld Garages Ltd [1986] ICR 157, CA. However, an employee is not justified in leaving employment and claiming constructive dismissal merely because the employer has acted unreasonably. This was confirmed in Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908, CA, where the Court upheld the decision of the EAT that the question of whether the employer’s conduct fell within the range of reasonable responses is not relevant when determining whether there has been a constructive dismissal.[33]In Omilaju v Waltham Forest London Borough Council [2005] ICR 481, CA, the Court of Appeal explained that the act constituting the last straw does not have to be of the same character as the earlier acts, nor need it constitute unreasonable or blameworthy conduct, although in most cases it will do so. But the last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his or her trust and confidence in the employer. The test of whether the employee’s trust and confidence has been undermined is objective. And while it is not a prerequisite of a last straw case that the employer’s act should be unreasonable, it will be an unusual case where conduct which is perfectly reasonable and justifiable satisfies the last straw test. In that context, in Chadwick v Sainsbury’s Supermarkets Ltd EAT 0052/18 the EAT rejected a tribunal’s finding that a threat of disciplinary action was ‘an entirely innocuous act’ that could not constitute a last straw.[34]Where the act that tips the employee into resigning is entirely innocuous it will be necessary to consider whether any earlier breach has been affirmed. In Williams v Governing Body of Alderman Davies Church in Wales Primary School EAT, it was held that where there is conduct by an employer that amounts to a fundamental breach of contract, a constructive dismissal claim can succeed even if there has been more recent conduct by the employer which does not in itself contribute to a breach of the implied term of trust and confidence, but which is what tips the employee into resigning. Crucially, however, the employee must not have affirmed the earlier fundamental breach and must have resigned at least partly in response to it.[35]If the employee waits too long after the employer’s breach of contract before resigning, he or she may be taken to have affirmed the contract resulting in the loss of the right to claim constructive dismissal. In the words of Lord Denning MR in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, CA, the employee “must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged”[36]The Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1, CA, held that, in last straw cases, if the last straw incident is part of a course of conduct that cumulatively amounts to a breach of the implied term of trust and confidence, it does not matter that the employee had affirmed the contract by continuing to work after previous incidents which formed part of the same course of conduct. The effect of the last straw is to revive the employee’s right to resign.[37]The Court of Appeal in Kaur (above) offered guidance to tribunals, listing the questions that it will normally be sufficient to ask in order to decide whether an employee was constructively dismissed: a) 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? 5 of 15 b) has he or she affirmed the contract since that act? c) if not, was that act (or omission) by itself a repudiatory breach of contract? d) if not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of trust and confidence? e) did the employee resign in response (or partly in response) to that breach?
Findings of fact
[38]The starting point is whether there is a breach of contract, and whether that breach is a significant repudiatory breach going to the root of the employment contract. The Claimant’s resignation[39]The Claimant’s resignation letter of 24 August 2023 provided 3 month’s notice and within this he described feeling like he was “being ‘driven out’ and feelings of ‘failure’ over the previous three years whilst in the position of Curriculum Development Manager”. He listed four areas of concern: department structure, working relationships, salary and expectations.[40]Within his resignation letter, the Claimant reiterated he still enjoys working there but was unsure of his actual role and felt he was undervalued and not recognised for his efforts. He ended the letter stating “I am happy to discuss this further if you require clarification on anything”.[41]In the ET1 claim form, the Claimant stated that he was moved into a different area to which he was contracted, he was paid less than counterparts who had been doing the role for less time than him and he felt he had no option but to leave after multiple requests for meetings and discussions with interim managers. He also stated he was put under much stress and pressure when he was on his notice period and this culminated in him having to take some weeks off work.[42]Essentially, the issues of concern to the Claimant were his responsibilities changing, having to do work that others should be doing, undertaking work at a senior level, lack of support in dealing with fractured relationships with the Automotive department, and being underpaid. Reason for resignation[43]There is no dispute that the Claimant’s was a valued member of the team who had been employed for over nine years. The Respondent clearly valued the Claimant and had made efforts to allow for the Claimant to change his mind on the resignation. The Respondent held the Claimant in high regard, as reflected in the grievance outcome letter of 14 August 2023 which stated as follows; “You are clearly a committed person and were clear about your passion for your role and your ability to have a positive influence on your students.” No issues have been raised on the Claimant’s competence. He had progressed over the years and undertook various additional responsibilities. There was no dispute that the Claimant was working in the educational field in order to make a difference in people’s lives.[44]The Claimant gave various reasons for resigning and I have considered these in detail. Reason - department structure 6 of 15[45]The first reason given by the Claimant in his resignation letter was the department structure. The Claimant stated there was a lack of structure and the Interim Head of Department (i.e. the Head of Engineering and Automotive), SC, had left the Claimant to cover the Castleford site as SC would spend three days at Selby and spend only two days at the Castleford site; and even on those two days GS would be conducting Selby related business. The Claimant said he had been managing the budget since January, which is when GS went off on sick leave, and GS later brought this to an end in order to control the spend. The Claimant stated he was line managing staff and SC (Interim Head of Engineering and Automotive) was running the department but seeking advice and guidance from the Claimant.[46]In the Grounds of Resistance, the Respondent stated that the Clamant was asked to undertake management duties associated with CDM for the Engineering department for the Castleford campus (as the person undertaking this role had moved to Selby) in March 2023. The Respondent stated that the Claimant was expected to cover this role until a permanent Head of Department for the Engineering and Automotive departments commenced employment. It was also stated that someone else, instead of the Claimant, was asked to take on the duties associated with CDM for the Automotive department. It was accepted that in April 2023 a new Interim Head of Department was recruited, based at Selby and working two days per week at the Castleford site.[47]In his resignation and grievance, the Claimant talks about the additional responsibilities and the lack of support. He was working as a CDM since 2020 and his job description stated his job purpose as follows; “To assist the Head in managing and developing the curriculum, including the management of staff and resources in the area.” In oral evidence, the Claimant stated that his 621 hours teaching commitment was removed in 2022 due to his workload and the teaching commitment had not been reinstated since.[48]The Respondent was able to assign further duties to the Claimant. The contract specifically stated; “You will be employed as a Curriculum Development Manager in which capacity you will be required to perform such duties consistent with your position as may from time to time be assigned to you.” The Claimant accepted the Respondent was undergoing a period of change from September 2022 with mergers of colleges.[49]There was no dispute that the additional responsibilities commenced in relation to the Engineering department when the Claimant’s line manager, GS, had a period of sickness in January 2023. In cross-examination, the Claimant stated that he saw this as a developmental opportunity and that it was progress in the right direction for him. In an email dated 10 February 2023 to GS and LC, the Claimant discussed unofficially deputising for GS, continuing to undertake this role, and undertaking the CDM role for both the Engineering and the Automotive departments. Within the email he stated; “This has been an enormous task which I have relished”. He then sought clarity on the future, noting that new structures are being considered and he stated “Just to reiterate, this is not about the workload, it is about the clarity.” Therefore, whilst the Claimant complained of the extra work, I do not find was not borne out in the evidence as being an issue.[50]The Claimant also stated in oral evidence that he considered that LC knew he was taking on responsibilities for his counterpart moving to the Selby site, but the Claimant conceded he had never discussed this with LC. At this point, I do not find there could have been any issues of concern and the Respondent could not be blamed for anything.[51]When the Respondent learned that GS had notified his intention to leave in March 2023, urgent interim decisions in relation to the management structure of the Engineering department were considered. The detailed email dated 7 March 2023 from LC to SW 7 of 15 addressed these changes in details. Specifically in relation to the Claimant, it was stated that he had no teaching hours, his frustrations were noted, and the proposal was for him to undertake the CDM for both the Engineering and the Automotive departments at Castleford until the end of the academic year, as a result of which he would not be undertaking any teaching at all and an honorarium was to be considered. I find the Respondent had considered workloads and responsibilities to ensure it was not burdensome.[52]The Claimant’s line manager then leaving in May 2023 did result in uncertainty for the Respondent and the employees. Responsibilities had to be reallocated, an interim Head of Department had to be put in place and there was a need to secure a permanent Head of Department. This was a period of significant change and it was inevitable this would result in unavoidable uncertainty and anxiety in employees. However, this does not result in a fundamental breach by the Respondent. Such changes are common in businesses and parties have to adapt to the changes as best they can.[53]A meeting took place on 30 August 2023 to discuss the resignation, within which the Claimant was given time to reflect on the resignation and it was agreed that the recruitment to replace him would be paused to allow him time to reconsider. Additionally, mediation was offered to address the concerns. This was confirmed in SW’s email to the Claimant on 1 September 2023. The Claimant confirmed his resignation on 4 September 2023 and the final date of employment was agreed as 24 November 2023.[54]I find that both the Respondent witnesses, SW and LC, made a lot of effort in communicating with the Claimant, discussing his concerns and providing him assurances that he was a valued employee with a promising career ahead of him once the period of change was over. There was no dispute he was highly valued, albeit the Respondent was unable to better the remuneration and I find this became a source of frustration for the Claimant. His resignation letter reflected this.[55]I find that the efforts made by the Respondent in providing such communication and assurances are not reflective of behaviour that is likely or calculated to destroy the trust and confidence between the parties. I find that such behaviour was in keeping with achieving the very opposite, namely to cement trust and confidence between the parties and to try and give the Claimant peace of mind. Reason - working relationships[56]The second reason given by the Claimant in his resignation letter was working relationships. He considered the relationship in the Automotive department to have progressively got worse and stated that he had raised concerns on workplace bullying to senior leaders but little support was provided to him.[57]In the Grounds of Resistance, the Respondent did not deal with this but this was addressed in the witness evidence and in submissions.[58]I find there was evidence of conflict between the Automotive team and the Claimant. It was undisputed that within the Automotive department the student performance was poor and students were leaving. The Claimant stated that the staff in the Automotive department resisted change and were not adapting to the new methods and processes that he had introduced. He stated this was a difficult team to manage.[59]I find the Respondent did address this as the email of 27 April 2023 from LC to SW outlined the plan, namely that the Claimant would only be the CDM for the Engineering department and another individual was allocated the responsibility of being the CDM for the Automotive department. LC was also sensitive in managing the relationships, as she 8 of 15 stated within the same email that she had not mentioned to the Claimant that staff were raising issued on his management style, as she deemed it inappropriate to divulge this. LC did suggest to SW that they need to turn their minds to how this will be managed.[60]Even before the Claimant resigned, the Respondent had made efforts to try and discuss concerns. The Claimant had already signed the contract with Barnsley College on 1 August 2023, but the Respondent was never informed of this until some weeks later, namely on 23 August 2023. In advance of this, LC had emailed the Claimant on 2 August 2023 to arrange a discussion with the Claimant. The Claimant’s view was that the efforts were not significant as LC had not met him at the site, but it is the Claimant who replied two days later, at which point he stated he was going on two weeks leave. Despite replying at 07:42 that morning, and going on leave after that day, the Claimant made no effort during that day to rearrange the meeting.[61]Even on 23 August 2023, SW emailed referring to the conference that the Claimant had been on the day prior and invited him to arrange a catch up. The Claimant then stated he would like to have a catch up, and also stated that he had received his contract from Barnsley and was looking to resign that week. He never followed up on arranging the catch up and instead emailed his resignation the following day on 24 August 2023. The Respondent had made reasonable efforts to discuss concerns, but the Claimant did not respond in arranging the meeting and instead tendered his resignation. The Respondent could thus not be criticised. I find reasonable efforts and offers of support were provided by the Respondent.[62]I considered the Claimant’s lengthy seven page grievance letter of 16 November 2023, which was in fact emailed the day before his final day, namely on 23 November 2023. Within the letter, bullying is alleged but there was no actual examples provided to support the bullying claims. The Claimant said in oral evidence that he raised this with others including GS, but there was no evidence of this. If he had raised it with GS and it had not been dealt with, then I considered it unlikely that the Claimant would then apply to work under him at Barnsley College.[63]There was no evidence before me to suggest bullying had been raised previously or that the Respondent had failed to take action. The Claimant stated that the staff made comments at work which were disrespectful, but he accepted that he never made a complaint. I do not consider that the Respondent can be held accountable if they are not made aware of the situation.[64]On the evidence before me, the Respondent was managing a finely balanced situation where the staff in the Automotive department were not agreeable to the Claimant’s management style. In cross examination the Claimant stated that he was aware of the Automotive team making complaints and his view was that they effectively bullied him. I do not find that team members raising concerns amounted to bullying, albeit I acknowledge it would not have been a pleasant experience for the Claimant. Any concerns that exist need to be aired in order for them to be resolved.[65]The Claimant accepted in cross-examination that GS and other senior managers made efforts to deal with them difficulties and conflict with the Automotive team. I had sight of the email from November 2021 where the Director of Curriculum acknowledged the problems the Claimant was having with the AVARs, which the Claimant explained were team reports on why student attendance was poor. The Director stated “and it goes without saying that I will support you to resolve the situation” before inviting the Claimant to a Microsoft Teams meeting the same day. The Claimant accepted that he had multiple meetings with the Director of Curriculum to discuss support for him. 9 of 15[66]I find that there was no evidence of bullying. It was clear the Claimant did not get along with colleagues in the Automotive department thus he did not wish to return there. However, not getting on with colleagues is commonplace and does not amount to conclusion that the Respondent had behaved in a way that was likely or calculated to breach implied terms of trust and confidence in the employment relationship. I find the Claimant was provided support and assistance. In the email of 1 September 2023 to the Claimant, the Respondent had offered mediation and in oral evidence the Claimant accepted the mediation related to the Automotive team tension. There was evidence in advance of this where the Respondent had provided support and continued to offer this. Reason - salary[67]The third reason given by the Claimant in his resignation letter was his salary. He considered he was underpaid and stated that 50% of the engineering staff are paid more than him as they receive the ‘Market Forces’ pay. He also took issue with a counterpart at the Selby site being paid more (including the Market Forces pay) and being able to claim for travel.[68]In the Grounds of Resistance, the Respondent stated that the Claimant was paid in line with the published pay-spine and was at the top of the scale in his post. The Respondent stated that they did make ‘Market Forces’ payment, including to some employees in the Engineering department, but that this was for those with roles where the skills were in short supply or in areas where it was difficult to recruit. However, the Claimant was not deemed to be entitled to the additional discretionary payment as he was in the Automotive (as opposed to Engineering) department, which was not considered to be an area where there was a skill shortage or an area that was difficult for recruitment purposest. The Respondent also relied upon the Claimant being paid two honorarium payments totalling £3,000.[69]The Claimant complained about the salary in his resignation and his grievance. To resolve his grievance, he asked for more money, as stated at the end of the grievance letter. It was clearly an important issue for him. In the hearing, he talked about his counterpart at Selby suggesting that the Claimant should get the Market Forces payment and that the Interim Head of Department, SC, soon after joining also suggested the Claimant should get this as the Claimant worked in the Engineering department. He also stated that when his counterpart moved to Selby and it left the Claimant with added responsibility of two areas. This included the Engineering side and meant he covered some teaching sessions, which the Claimant said “niggled a bit”. In his closing submissions, the Claimant stated that whilst he was not performing the Head of Department job, but his view was that he was doing a similar role and he wanted the difference in salary.[70]However, it is the Respondent’s decision as to whether the Claimant should get further pay. I find the Respondent had acted appropriately because the Claimant was asked to take on the additional responsibilities for the Engineering department when GS notified his intention to reign on 6 March 2023. An honorarium payment of a total of £3,000 was agreed within days, with this being paid in equal sums of £1,500 on 13 March 2023 and then 5 July 2023. The Claimant accepted the additional sums to reflect the additional accepted responsibilities.[71]I had sight of the Market Forces policy and the Respondent’s view was that the Claimant did not meet the strict criteria for this. The policy cites construction and engineering as areas difficult to recruit within and they were classed as skill shortage areas. There was no evidence that this policy had been misapplied. Whilst the Claimant’s counterpart at Selby was paid this, it reflected the skill shortage and difficulty in recruiting for 10 of 15 engineering. The Claimant’s concern was that someone from an engineering background was paid more than him, but I did not consider the Claimant had the relevant engineering qualifications as he was Automotive by background. The Respondent’s position was that the Claimant was appropriately remunerated.[72]The Claimant accepted that SW had a discussion with him on the Market Forces policy and explained her reasoning on why this did not apply to the Claimant. I also noted that the Claimant received the additional remuneration in the form of the honorarium payment.[73]In respect of the Claimant’s counterpart being paid for travel, the Claimant accepted in cross examination that the travel allowance did not apply to him as he had not moved/relocated for the role. Reason – expectations[74]The fourth reason given by the Claimant in his resignation letter was of expectations. He raised concerns about being referred to as the “head” at meetings where he is the only CDM, continually being asked to advise and resolve matters in the Automotive department/areas, undertaking role in the Automotive department despite others employed to do this and taking issue with preparing for interviews and enrolments of new staff but then being excluded from the recruitment process.[75]In the Grounds of Resistance, the Respondent stated that Claimant was not qualified as an engineer, so his role was limited to overseeing and managing the Engineering department. It was stated that the Claimant was not required to teach engineering but may have overseen some generic classes, such as on health and safety. It was also stated that the Claimant still retained some responsibilities for the Automotive department, including for employer engagement.[76]In oral evidence, the Claimant accepted that when his counterpart moved to Selby, he inherited his responsibilities, but this did not involve teaching. He was clear that he only covered classes in emergencies when staffs were sick, he had no qualifications in engineering but due to his experience he would cover classes in health and safety, metal work and properties of material. He accepted he could not find any evidence to support this within the diaries. I note my earlier finding of the Claimant relishing the additional responsibilities as a route to progression.[77]The Claimant was line managed by GS, who was the Head of Department. GS submitted his resignation on 6 March 2023 and then left on 19 May 2023. There was an Interim Head of Department, SC, who started on 17 April 2023. The Claimant applied for the permanent role of the Head of Department, which would have been a promotion as it was a more senior role. He was unsuccessful in this and the role instead went to GC who started the role on 22 August 2023. The Respondent’s case is that they had to appoint the right person for the job and had concluded GC has the right skills and experience. I do not find the Respondent’s decision could be criticised as the Claimant accepted in cross-examination that his application for that role was a “long shot” and the failed outcome was unsurprising as he had not done line management or managed big budgets at that time.[78]The Respondent did provide him feedback via LC and on 17 May 2023 SW offered the Claimant a Microsoft Teams call to explain the rationale behind some changes that the Claimant had raised concerns upon. The meeting took place on 19 May 2023 and the structure was discussed with his queries answered, as accepted in the Claimant’s own witness statement. In oral evidence, the Claimant stated that this was the day his line manager left and the Claimant was provided assurances about his own role. 11 of 15[79]A grievance was raised. This was a detailed letter dated 16 November 2023, but this was not actually submitted until the Claimant sent the email on 23 November 2023 at 11:55. I note the grievance was acknowledged by the Director of People Services in the HR department at 12:24. The Respondent states that an auto email response was received from the Claimant stating he was no longer dealing with queries and that emails are to be directed to his line manager. There was thus no engagement by the Claimant to try and resolve this before he left.[80]I note that the Claimant repeated the reasons given in his resignation letter within the grievance and he stated that he had also raised these points in an email on 7 June 2023. However, the Claimant delayed raising the formal grievance. This grievance is dated a week prior to it being sent. It was also sent on the day prior to the Claimant’s final day. The Claimant had deprived the Respondent of an opportunity to formally investigate the issues and to try and resolve them before he left.[81]Nevertheless, a grievance meeting took place by Microsoft Teams on 5 December 2023 and the outcome letter was issued in 14 December 2023. This acknowledged the Claimant’s feeling of being aggrieved but stated “I do not feel there is anything additional that the group could do or have done, that they have not already done”. I find the grievance was appropriately dealt with by the Respondent.[82]I find the Claimant was disgruntled by the lack of career progression and his level of pay. On the evidence before me, his unsuccessful promotion led the Claimant to conclude that he was not valued by the Respondent. I do not accept that this would amount to a breach of the contract. Other reasons[83]Whilst he was employed, the Claimant was looking for a job elsewhere. He was exploring another role and career development as it was accepted that he had applied for an equivalent role of Head of Department at Barnsley College, which is a role that went to his previous line manager, namely GS. This interview took place on 22 February 2023.[84]After GS left, the Claimant did apply for the Head of Department role. He was unsuccessful in securing this promotion. Upon failing to secure the promotion, the Claimant did text his counterpart and I had sight of the messages. The Claimant stated that he did not get the role as he was “obviously not good enough” and that “it was time to revaluate my career choices”. In cross-examination, the Claimant explained that this was a flippant comment, and he did not wish to leave but he felt unwanted.[85]The Claimant then looked for alternate employment opportunities. He stated in crossexamination that this was because of the atmosphere in the college and an interim CDM already being in place. His was not consistent with him applying for the promotion to replace GS. The fact that he started looking for alternate external opportunities after his promotion failed was indicative of that being the real reason for leaving. I could not fault the Respondent for this as the Claimant himself had conceded he was not suitable for the promotion.[86]I note the Claimant was again interviewed by Barnsley College on 22 June 2023 for a role that would involve working under his previous line manager, GS. The Claimant was successful and although he was unable to recall the exact date of the offer, he did state in oral evidence that the job was offered “shortly after the interview”. I thus expect the offer was made by the end of June 2023, or at the latest it would be in early July 2023. He then did not sign the contract of employment for the new role until 1 August 2023. The Claimant stated that upon receiving the offer he had told the offering organisation that he 12 of 15 needed time to think and he believed that it was at the end of July 2023 that he accepted the role.[87]I would have expected, if the Claimant had considered the contract breached, for the Claimant to have resigned immediately after he secured the alternate employment. His conduct in delaying resigning works against his claim of there being a breach of the implied term of trust and confidence.[88]Within the Grounds of Resistance, the Respondent stated that the Claimant had emailed SW on 23 August 2023 to say that he had received a contract from another Further Education college and that he was looking to submit his resignation by the end of the week. The resignation was submitted the following day, on 24 August 2023. I have had sight of both emails. I have to consider the reason that the Claimant was forewarning the Respondent of having received a contract from another employer and putting them on notice that his resignation would likely follow. On balance, I conclude this was likely to be for purposes of seeing if the Respondent would improve on their terms. GC had started as the Head of Department on 22 August 2023, the Claimant then put the Respondent on notice of his intention to leave on 23 August and then submitted his resignation on 24 August. The timing of these events is indicative of the Claimant leaving due to feeling underappreciated and not securing better terms or the promotion.[89]I am mindful that the Claimant had an offer from Barnsley College for some time and had signed his new employment contract almost four weeks before informing the Respondent. In the interim, he gave no indication of resigning, and continued to work for the Respondent until he submitted his resignation on 24 August 2023.[90]With the employment being in the educational field, I would have expected the Claimant would want to start in September 2023, or as soon as possible thereafter after his notice was completed, or the notice period negotiated to facilitate this. The Claimant had delayed resigning and this does not support the claimed breach of the implied term of trust and confidence.[91]The Respondent’s counsel submitted that the Claimant used the offer from Barnsley College in order to negotiate better terms and conditions with the Respondent, especially with respect to the salary increase. I did note the email of 25 October 2018 from GS to another of the Respondent’s employee to inform her that the Claimant had told him the previous day that he was successful and had been offered a job at Barnsley College as an Automotive lecturer. GS also mentioned within that email the pay/terms and that Barnsley was closer to the Claimant’s home so there are significant savings on travel costs. GS then stated that the Claimant needs to be retained by increasing his pay.[92]I thus accept the Respondent advocate’s submission that the tactic had been used previously in 2018. On this occasion, in 2023, the Claimant did not proceed to resign when getting the job offer, but instead informed the Respondent and awaited a response. I find this was with a view of improving his remuneration as had happened previously.[93]The Claimant was candid in his closing submission in accepting that he enjoyed working for the Respondent, he did not wish to leave and he hoped to stay there as he had real friendships there. He stated that he took issue with another CDM receiving the Market Force payment, thus being paid more, and he struggled to get past this. The Claimant had reached a stage in his career where he was progressing, he got an alternate job offer and I find it was due to this that he resigned. I do not find the reason for resignation was due to any fundamental breach on the part of the Respondent. 13 of 15[94]On 20 November 2023, the Claimant emailed a colleague stating that he had just heard that GC had tendered his resignation. I note GC was the new Head of Department who had started in 22 August 2023. The Claimant goes on to say “I’d give it consideration if the terms were right!” I do not accept the Claimant’s explanation at the hearing that this email was sent in jest as it was sent to a more senior manager indicating that he would replace GC if the terms could be agreed. This is also persuasive evidence that the relationship had not broken to the extent that the Claimant had to leave, as he clearly stated he was willing to return for the more senior role on the correct terms, which I take to mean pay.[95]I find that the Claimant felt undervalued and underappreciated and that is the real reason he resigned. Whilst noting the changes the Respondent was undergoing, I do not find any part of the Respondent’s conduct to have been so serious that it would go to the root of the contract. Therefore, I did not find there to be any significant breach. The grievance raised by the Claimant was not calculated to resolve issues prior to him leaving as it was sent the day before his final day. I was unable to identify any ‘last straw’ incident, and if there was then I do not find the Claimant resigned in response to it as he left due to securing an alternate job offer. Affirmation[96]It is a settled principle that if an employee waits too long before resigning, then the employee can be taken to have affirmed the contract, thus losing the right to claim constructive dismissal.[97]The Claimant could have clearly left sooner but failed to do so. He was unsuccessful in his application for the Head of Department role. He then stayed on some months and in the meantime he secured another job offer whilst continuing to work.[98]I find that the Claimant had affirmed the contract. The Claimant stayed on despite having an alternate job offer. This is strongly indicative of there being a lack of evidence of any breakdown in trust and confidence. I am mindful that the Claimant worked up to two months before he notified the Respondent of his intention to resign.[99]Other than the sickness period, the Claimant voluntarily worked his three month notice period. Whilst I acknowledge the Claimant’s evidence was that the breakdown in the employment relationship had contributed to him taking time off due to stress and anxiety, he did work four weeks of his notice period before taking sick leave and a further four weeks after returning from his sick leave. This, coupled with his delay in submitting his resignation, leads me to conclude that there was no breakdown in the relationship. The Claimant taking issue with the terms of his remuneration is not sufficient reason to conclude a breakdown in the relationship owing to the Respondent’s conduct.[100]The Respondent’s behaviour could not have been so egregious or damaging to the relationship that the Claimant had no alternative other than to resign. I find that he did have an alternative and he chose to exercise that, namely to wait until he had another job offer before resigning.[101]Whilst the Claimant may not be happy with his terms of employment, I did not find that the Respondent’s conduct was such that it put the Claimant in a position of having no alternative but to resign.[102]I do not find there to be constructive dismissal. The Claimant could have resigned much earlier when the alleged issues surfaced, but instead chose to start looking for alternate jobs, secured an alternate offer and then delayed his resignation for some weeks to see 14 of 15 if he could better his terms. If there was any breach, then I find the Claimant had affirmed this by failing to resign in response to it.
Conclusion
[103]I do not find there to be any breach of contract that was causative and responsible for the Claimant resigning. I do not accept the conduct of the Respondent amounts to a breach going to the root of the contract of employment, or which shows that the Respondent no longer intends to be bound by one or more of the essential terms of the contract.[104]For those reasons I find that the Respondent did not act in a way which was calculated or likely to destroy or seriously damaged the implied term of trust and confidence. I do not find there to have been any breach by the Respondent. The Claimant resigned from his employment, but he was not constructively dismissed, and the claim fails.