Mr S ZabaClaimantBidvest Noonan (UK) LimitedRespondentDate 13 June 2025
JUDGMENT
[1]The Tribunal considers it appropriate to award the Respondent costs of £3500 plus VAT i.e. £4200 in respect of Counsel’s brief fee for the hearing which had been scheduled for 30 and 31 October 2024 pursuant to Rule 76 (1) (a) and/or (c) of then applicable Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (the Rules.[2]In the alternative on the basis that the Claimant had previously informed his representative that he would be abroad during the final hearing the above costs are awarded against Employment and Wales Employment Advice Limited pursuant to Rule 80 as wasted costs on the basis that they should have brought the matter outlined above to the attention of the Tribunal and the Respondent well in advance of the hearing date and thereby avoided the Respondent incurring the unnecessary cost of Counsel’s brief fee.[3]The Claimant and Employment and Wales Employment Advice Limited are therefore jointly and severally liable for the costs award.
REASONS
[4]The Claimant’s application for a postponement of the full merits hearing listed for 30 and 31 October 2024 was made on 24 October 2024. Whilst the Claimant’s postponement application was initially rejected on the Claimant providing further information of the booking of flights made on 23 February 2024 the postponement was granted on 29 October 2024.[5]The Claimant had failed to provide the required 7 days’ notice of a postponement application in accordance with Rule 30A.[6]The Respondent had already incurred counsel’s brief fee of £3500 plus VAT for the final hearing.[7]The Claimant has not provided any evidence that he sought permission from the Tribunal and/or the applicable authorities in Thailand to give evidence from abroad. His sole explanation for the postponement is on the basis of unanticipated Internet connectivity issues from participating in the hearing from Thailand. The Law 1 of 3
The Law
[8]Rule 76 provides: When a costs order or a preparation time order may or shall be made 76 (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success.[9]The following propositions relevant to costs may be derived from the case law:[10]There is a two-stage exercise to making a costs order. The first question is whether a paying party has acted unreasonably or has in some other way invoked the jurisdiction to make a costs order. The second question is whether the discretion should be exercised to make an order (Oni v Unison ICR D17).[11]Costs orders in the Employment Tribunal are the exception rather than the rule (Gee v Shell [2003] IRLR 82, Lodwick v Southwark [2004] ICR 844).[12]While the threshold tests for making a costs order are the same whether or not a party is represented, in the application of the tests it is appropriate to take account of whether a litigant is professionally represented or not. Litigants in person should not be judged by the standards of a professional representative (AQ Ltd v Holden [2012] IRLR 648).[13]While a precise causal link between unreasonable conduct and specific costs is not required, it is not the case that causation is irrelevant. In Yerrakalva v Barnsley MBC [2012] ICR 420 Mummery LJ said: “41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson's case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment Tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances”.[14]Mummery LJ explained that the vital point in exercising the discretion to order costs is to look at the whole picture of what had happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.[15]Costs in the Employment Tribunal are exceptional, and rarely awarded: Lodwick v Southwark London Borough Council [2004] ICR 884. Conclusions and discussion 2 of 3[16]I consider that the Claimant’s belated application to postpone was unreasonable in accordance with Rule 76 (1) (a) given that even had the Internet connectivity issues not existed his and his representatives failure to obtain the requisite permissions to give evidence from abroad would have precluded the hearing taking place. The failure of both the Claimant, and more specifically his representative, to take appropriate steps in this regard, and then the extremely belated application for a postponement, constituted unreasonable conduct. Further, his failure to provide the requisite 7 days’ notice provides additional grounds for the award of costs pursuant to Rule 76 (1) (c).
Introduction
[1]The Respondent is a facilities management company that provides security, cleaning and other facilities services.[2]The Claimant’s contract of employment with the Respondent commenced on 1 March 2022, following a TUPE transfer from Mitie Security (for whom he had worked since 30 April 2012). At the relevant times, the Claimant’s role was Lead Security Officer at 1 Embankment Place, London. The Respondent’s client at that location was JLL.[3]The Claimant sent a letter of resignation to the Respondent on 28 April 2024. The Claimant claims constructive unfair dismissal. He relies on two matters which are alleged to constitute fundamental breaches of contract.[4]First, in relation to and arising from an incident that occurred on 14 February 2024, the Claimant claims that the Respondent acted in a number of ways which, individually or, in the alternative cumulatively, amounted to a breach of the implied term of mutual trust and confidence. In outline, these are: requiring the Claimant to test a body worn camera (BWC) devices without any training; covertly recording a private conversation between the Claimant and a colleague; disclosing that recording to JLL without the Claimant’s consent; using the recording to pursue allegations against the Claimant; procedural failures in how the Respondent carried out its grievance procedure; and telling the Claimant to choose between a demotion at his current site or a relocation to a different site, both involving a pay cut.[5]Second, the Claimant claims that the Respondent telling him to choose between a demotion at his current site or a relocation to a different site, both involving a pay cut, was also in breach of the express term of his contract of employment relating to pay.[6]Two matters that were pleaded in the Particulars of Claim were withdrawn by the Claimant at the hearing. The Claimant had pleaded a fundamental breach of an (unspecified) implied term of the contract in relation to the Respondent’s alleged non-compliance with “data protection rules”. This matter was withdrawn outset of the hearing, when agreeing the list of issues. The Claimant had also pleaded that the Respondent had stored the recording of BWC footage on a manager’s mobile telephone in breach of the GDPR and that this amounted to a in breach of the implied term of mutual trust and confidence. This matter was withdrawn part-way through the Respondent’s evidence.[7]The Claimant claims a breach of contract in relation to notice pay. He claims that, as he was constructively unfairly dismissed, he is entitled to contractual notice pay and the Respondent did not pay him any sums in respect of notice pay. The Respondent contests the claim.[9]First, the Respondent accepts that the training given to the Claimant on 14 February 2024 in relation to the use of a BWC device could have been better. However, it does not accept that no training was given. The Respondent asserts that it acted properly in reviewing the video footage from the BWC and allowing a member of staff from JLL to view the video footage. Furthermore, the Respondent asserts that, in following up on what was captured in that video footage, it acted in accordance with its own Client Removal Policy and Grievance Policy. The Respondent denies that any of its actions, taken individually or cumulatively, amounted to a breach of the implied term of trust and confidence.[10]Second, the Respondent denies that it required the Claimant to choose between a demotion at his current site or a relocation to a different site, both involving a pay cut, in breach of an express term of his contract of employment. It asserts that the Claimant was offered relocation to a role at a different site, at an (at least) equivalent level of seniority and without a substantive pay cut.[11]As the Respondent an equivalent dent denies that the Claimant was constructively unfairly dismissed, it asserts that no contractual notice pay was payable to the Claimant. The Respondent also drew attention to the fact that the Claimant resigned with immediate effect, not offering any notice period.
The Hearing
[12]The hearing took place on 12 and 13 June 2025 by CVP.[13]The parties provided written witness statements. I took time to read those statements in advance of the hearing. Each witness was then asked questions about the evidence contained in their statements. The Claimant gave evidence on his own behalf.[15]For the Respondent, I heard from Mr Varrinder Basra (Mr Basra), Key Account Manager, and Mr Michael Perridge (Mr Perridge), Account Support Manager. Mr Glen Lyddiatt (Mr Lyddiatt), Security Contract Manager and the Claimant’s line manager at the relevant times, was scheduled to give evidence to the tribunal but did not attend due to being on annual leave.[16]The parties cooperated in producing a bundle of 218 pages. On the second day of the hearing, with the consent of the Claimant, the Respondent added a further three pages to the bundle, comprising an email exchange dated 26 April 2024.
The Issues
[17]At the start of the hearing, we spent some time clarifying the issues as set out below: Constructive unfair dismissal 1. Was the Claimant dismissed?1.1 Did the Respondent do the following things:1.1.1 Require the Claimant and his colleague, Mr Hakan Mehmet (Mr Mehmet), to carry out a test of a BWC device without any training?1.1.2 Record the Claimant and Mr Mehmet in a covert manner whilst they were testing the BWC device?1.1.3 Disclose the BWC recording to JLL, without the Claimant’s prior consent and/or without informing the Claimant that any recording taken by the device could be directly accessed by JLL?1.1.4 Use the recording to pursue the investigation of allegations against the Claimant?1.1.5 Unreasonably delay its consideration of the Claimant’s grievance, including not completing it before the investigation procedure?1.1.6 Fail to adequately inform the Claimant as to the purpose of the investigation and grievance procedures and how they interacted?1.1.7 Tell the Claimant that he had to choose between taking a demotion from his supervisory role at his current site involving a pay cut or relocation to a different site also involving a pay cut?1.2 In respect of any or all of those acts/omissions:1.2.1 Did the Respondent, without reasonable or proper cause, conduct itself in a manner that was calculated or likely to destroy or seriously undermine the implied term of mutual trust and confidence between the parties?1.2.2 Was that a sufficiently serious breach to constitute a fundamental breach of contract? The Tribunal will need to decide whether the breach was so serious that the Claimant was entitled to treat the contract as being at an end.1.2.3 Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.1.3 Did the Respondent tell the Claimant that he had to choose between taking a demotion from his supervisory role at his current site involving a pay cut or relocation to a different site also involving a pay cut?1.4 Did that breach an express term of the contract?1.5 Was that a sufficiently serious breach to constitute a fundamental breach of contract? The Tribunal will need to decide whether the breach was so serious that the Claimant was entitled to treat the contract as being at an end.1.6 Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.1.7 Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach. 2. If the Claimant was dismissed, what was the reason or principal reason for dismissal i.e. what was the reason for the breach of contract? 3. Was it a potentially fair reason? 4. Did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the Claimant? 5. The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. Notice pay 6. What was the Claimant’s contractual notice period? 7. What period of notice did the Claimant give upon resignation? 8. Was the Claimant paid for that notice period? 9. If not, was the Claimant guilty of gross misconduct? / Did the Claimant do something so serious that the Respondent was entitled to dismiss without notice? Remedy for constructive unfair dismissal 10. What is the appropriate remedy if the claim succeeds?10.1 The Claimant confirms he does not seek re-engagement or reinstatement.10.2 If there is a compensatory award, how much should it be? The Tribunal will decide:10.2.1 What financial losses has the dismissal caused the Claimant?10.2.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?10.2.3 If not, for what period of loss should the Claimant be compensated?10.2.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?10.2.5 If so, should the Claimant’s compensation be reduced? By how much?10.2.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?10.2.7 Did the Respondent or the Claimant unreasonably fail to comply with it by [specify alleged breach]?10.2.8 If so is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?10.2.9 If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?10.2.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?10.2.11 Does the statutory cap apply?10.3 What basic award is payable to the Claimant, if any?10.4 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent? Remedy for notice pay 11. How much does the contract indicate the Claimant should be paid for the notice period? 12. Is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?
Findings of Fact
[18]I limit my findings to those factual matters which I consider to be of relevance to the issues in this case.[19]Each of the witnesses that gave oral evidence provided straightforward and clear answers to the questions that they were asked. I was given no reason to doubt their intention to answer questions truthfully, to the best of their knowledge and recollection. I therefore accorded their evidence substantial weight. Mr Lyddiatt was not available for cross-examination so I afforded his written evidence less weight because it had not been tested in that way. Where there were disputes of fact between the witnesses on relevant matters, I have explained below why I accepted one account in preference to another. Contract of Employment[20]The Claimant was employed by Mitie Security from 30 April 2012, as a Lead Security Officer based at a client site at 1 Embankment Place, London. On 1 March 2022, the Claimant’s employment was transferred by TUPE to the Respondent. His role and site remained the same.[21]The Respondent relies on a set of documents starting with one titled “LE Type Conditional Offer of Employment / GB-Security employees / Welcome to Bidvest Noonan” as the Claimant’s written contract of employment [page 41-56]. It is not signed or dated by either party. However, the Claimant did not challenge the Respondent’s assertion that this was his contract of employment other than to say that he was transferred from his employment with Mitie Security on the same terms and conditions. I was not provided with a copy of the Claimant’s written contract of employment with Mitie Security. Furthermore, in oral evidence, although he said that he had not received a copy of the contract of employment, the Claimant accepted that the terms and conditions set out in this documentation were his terms and conditions. On the balance of probabilities, I find that these documents did record the terms and conditions of the contract of employment between the Claimant and the Respondent.[22]The contract recorded that the Claimant’s job title is “SUP Supervisor”, the site name “JLL Embankment Pl London”, the start date 1 March 2022 and that the role was “Full time”. The detailed terms and conditions set out included the following:a. “Hours of Work. Your normal hours of work are anticipated to be stated hours on your Offer of Employment; these house may be in a shift pattern over any of the days and/or nights of the week including Saturday and Sunday […] Your hours of work may vary according to the operational needs of the Company or the client. The Company may vary shift patterns operated by the Company either on a temporary or continuing basis”;b. “Location and Mobility. Your place of work on the Commencement Date will be at the site stated in the offer of employment. Due to the nature of the Company’s business, you may be required to work at different locations during your employment. The Company reserves the right to relocate you to other sites as and when required and it is a condition of your employment with the Company that you are willing to do so. The Company will give you as much notice of any change of location as is reasonably possible. If the Client informs the Company that they no longer permit you to work at their site, then the Company will remove you from that site and endeavour to place you in an alternative position. The Company’s obligation to do so takes second place to any disciplinary procedures that may follow such a removal from site”;c. “It is expected that as an employee you agree to and comply the following terms: […] You may also be expected to work any system of work or shift pattern that the Company may notify you of from time to time […]”;d. “Notice of Termination. The first 26 weeks of your employment with the Company is a probationary period therefore during this time, your employment may be terminated immediately in writing without notice in the first month and then one week’s notice from either side. Thereafter: Written notice to be given to you by the Company; Less than 2 years’ service 1 week; 2 years or more 1 week for each completed year of service up to a maximum of 12 weeks; Written Notice to be given by you to the Company; 1 Week”;e. “Disciplinary Procedure. Full details on the Company’s Disciplinary Process are outlined in the Employee Portal. The Company may rely on CCTV and Audio Recordings in a Disciplinary Process”;f. “Grievance Procedure. Full details on the Company’s Grievance Process are outlined in the Employee Portal”;g. “Data Protection. The Company may process employee information for the purposes of staff administration and its business in accordance with the Data Protection Acts. By signing this statement, you agree to the transfer of your employee information (including any sensitive personal data) to, and the processing of it by, the Company. You also agree that, from time to time, the Company may wish to process any personal information (as periodically updated) contained within this and other documents provided by you for personnel and business management purposes. You hereby consent to such processing, which will take place in accordance with the provisions of Data Protection and Transfer of Undertakings legislations. In compliance with the GDPC regulations 2016/679 the basis for processing is outlined in our Privacy Notice”.[23]In oral evidence, the Claimant accepted that he had access to the Respondent’s ‘Employee Portal’.[24]I was also taken to a letter dated 4 May 2022 from the Respondent confirming some aspects of the Claimant’s employment. It set out that the Claimant’s start date was 1 March 2022, his job title was “Security Officer”, that his employment had transferred to the Respondent from Mitie Security, and it set out his annual salary.[25]There was also a document in the hearing bundle titled “Statement of Terms and Conditions of Employment” signed by the Claimant on 9 May 2024, but neither party referred me to that document so I have not considered it (pages 192-205). Relevant policies of the Respondent[26]I was provided with a copy of the Respondent’s Grievance Policy dated 29 March 2023. It provided for a three-stage procedure. The relevant parts of the policy are: “ 5. PROCEDURE. The following stages of the Grievance procedure are usually followed in most cases, but it is not essential that all levels are used on every occasion.5.1 Informal Grievance – Stage 1. An employee who wishes to raise an issue should, in the first instance, raise it verbally for discussion with their immediate manager and if possible, the Company will deal with the matter informally and aim to seek resolution. After this, should informal resolution not be reached, the formal stage of the grievance procedure may be invoked. […]5.2 Formal Grievance – Stage 2. If, within seven working days of a matter having been raised at Stage 1, it cannot be resolved informally or the employee considers that the outcome is not satisfactory, then the employee may raise the matter in writing with the next level of management who will convene a meeting between the employee and an appropriate manager as soon as reasonably practicable. The employee and the Company will choose a mutually convenient date and location for the meeting but both parties should strive to book this meeting within seven working days of the request, where possible. […] The manager hearing the grievance will take sufficient time including adjournments as appropriate in order to come to a conclusion. However, if reasonably practicable a decision will be given within seven working days of the meeting, after discussion with the appropriate individuals. The decision will be communicated to the employee in writing and will detail the underlying reasons behind the decision.5.3 Appeal – Stage 3 […]5.4 TIMING. An employee is encouraged to raise any complaint without undue delay. Grievances should normally be conducted within the timescales laid down in the procedure. That said, if there is a valid reason to do so, variations to the timescales will always be reasonable for both the Company and for the employee/representative. If initiated by the Company, the employee should be given an explanation and informed when a response or meeting can be expected. All efforts should be made by employees to attend meetings and when there are valid reasons to reschedule meetings, these should be arranged without delay […]”.[27]I was provided with a copy of the Respondent’s Client Removal (Site Ban) Policy dated 1 April 2021. The relevant parts of the policy are: “Scope. This Policy exists to outline the approach to be taken when a client imposes a colleague is re-moved from site. A client removal can occur when the colleague is no longer permitted to work on the client’s site. Examples of such removal are (but are not limited to) – Performance concerns; Breach of site policies and protocols; Misconduct/gross misconduct concerns; and Request for removal with no reason provided. The removal may lead to a colleague being fairly dismissed from their employment on the grounds of ‘some other substantial reason’ […] Formal Procedure. Upon notification being received from the client that the colleague must be removed from site the following steps should be taken […] 1. Request written notification from client that the colleague is to be removed from the site confirming the reasons for this. […] 2. At any stage of the client requesting the removal of the colleague, meet with the employee to inform them of the request and discuss temporary redeployment options. When considering redeployment, the following should be considered(a) the colleague’s hourly rate should not decrease;(b) where possible hours of work should continue to remain the same;(c) Travel time and distance to and from the temporary place of work. 3. In the event temporary employment cannot be secured, the colleague should be suspended from work with immediate effect with full pay. […] 4. Following points two or three being action, the colleague should be invited to attend an investigation meeting and therefore associated letters should be followed as outlined below. Investigation Meeting. […] The investigation may involve one or more meetings to establish the facts. The Manager conducting the investigation will not be involved in determining the outcome of the next stage whether that be a Disciplinary or redeployment hearing save to the extent that the Investigation Manager may present any supporting facts and material at the disciplinary hearing or responds to questions raised by the Disciplinary or redeployment hearing Manager. […] Disciplinary Hearing. If, following an initial investigation, it is considered that there is a case to answer, a disciplinary hearing will be arranged as soon as possible. This will be held in line with the company’s Disciplinary Policy. Redeployment Hearing. If, following an initial investigation, the facts established identify that there is no disciplinary case to answer, yet the client still insists that the Bidvest Noonan colleague is unwelcome on their site/account, the colleague will be invited to attend a meeting with a hearing manager to identify all options open to the colleague where redeployment is the only option to retain them in the business […]”.[28]I was not provided with a copy of the Respondent’s Disciplinary Policy and neither party referred me to it in evidence or submissions. 14 February 2024[29]At the beginning of the relevant shift, the Claimant and his colleague Mr Mehmet were told that JLL had requested that new BWC devices be tested. Both Mr Lyddiatt and Mr Perridge stated that JLL was interested in testing the quality of the images recorded and the battery life of the devices. That was not contested by the Claimant.[30]The supplier of the BWCs showed Mr Lyddiatt and Mr Tony Green (Mr Green) how to turn the devices on and off. They received no further training from the supplier at that time.[31]It is common ground that little training in the use of the BWCs was given to the Claimant. In his oral evidence, the Claimant explained that Mr Luke Waddington (Mr Waddington) handed the Claimant and Mr Mehmet a BWC device and showed them that there was a button on the side of the device for turning it on and off. Although there were lights on the device, no explanation was given as to what it mean if any of the lights were on or flashing. I note that the outcome of the Respondent’s grievance procedure – details of which are covered later in this judgment - included a finding that the training was “rushed” and I accept that the Claimant raised a number of concerns with Mr Waddington straight away. He was concerned that he hadn’t been properly trained to use the device and he was concerned that there had been no training on the implications of using the device in terms of data protection legislation.[32]Having reviewed the audio transcript of the conversation between the Claimant and Mr Mehmet captured by the BWC device at approximately 8:45pm on 14 February 2025, I find that the Claimant was unsure as to whether the BWC device was on or not. The contents of the transcript indicate that the Claimant and Mr Mehmet were unsure whether or not the device was recording their conversation. However, it is clear that they were aware that it was possible that it was on and recording. First, they knew that the purpose of the BWC device was to record audio-visual footage. And second, because the Claimant’s comments “Ok, let me go, let me record”, “Test, polish speaking. I have to do like this, I think only” and later “I think its on, I dunno, you need to speak to er…. yeah its on” clearly indicate that he had an intention to record and was speaking as if the device were recording. 15 February 2024[33]The following day, Mr Lyddiatt and Mr Green were reviewing the video footage which included that recorded on the BWC devices on 14 February 2204. A member of staff from JLL happened to be in the same room and overheard the recorded conversation between the Claimant and Mr Mehmet. Although Mr Lyddiatt was not available to be cross-examined, I accept his evidence on this point on the basis that I was not taken to any documentary evidence that undermined it and, in his own oral evidence, the Claimant also accepted that he was not present in the room at that time so could not say how the footage came to be viewed by the member of staff from JLL.[34]The conversation recorded on the footage included the Claimant appearing to instruct Mr Mehmet to record an incorrect figure in the relevant log book for the number of boxes of waste that were being collected. The Claimant says that this was not a serious instruction, but a joke between colleagues. However, he accepts that it was inappropriate and unprofessional. He now says that he is embarrassed about it and has apologised to the Respondent. 23 February 2024 - Stage 1 meeting under the Client Removal (Site Ban) Policy[35]On 23 February 2024 a meeting was held between Mr Lyddiatt and the Claimant. At the meeting a small amount of audio from the recorded conversation of the Claimant and Mr Mehmet on 14 February 2024 was played to the Claimant using Mr Lyddiatt’s company mobile telephone. The Claimant asked Mr Lyddiatt not to play the full recording. The Claimant accepted that what he had said was inappropriate and unprofessional, but raised a number of concerns with Mr Lyddiatt including the level of training provided before testing the BWCs, the fact that he had not been asked to sign his consent to being recorded by the BWCs, and concerns as to the Respondent’s compliance with data protection legislation as to its recording and processing of the footage from the BWCs.[36]In his witness statement, Mr Lyddiatt states that “The JLL team were surprised and angry at Mr Zaba’s actions. However, they were waiting for the outcome of the investigation before reviewing their formal stance of the incident”. The Claimant has a slightly different recollection of events in that he stated in his witness statement that Mr Lyddiatt had informed him that “JLL wanted me off their side [sic] due to the comments that I had made or alternatively demoted from my position of Lead Officer”. I find that these recollections may well be both correct. Mr Lyddiatt’s account is consistent with what is agreed happened next – the Claimant continued to work at the site and an investigation into his comments of 14 February 2024 was carried out. However, with reference to the Respondent’s Client Removal (Site Ban) Policy, an investigation meeting – essentially stage 4 in the stated procedure - would only be needed if the Respondent had received a written request from the client for the Claimant to be removed from the site and stages 2 (meeting the employee to inform them of the request and discuss redeployment options) or 3 (temporary redeployment cannot be secured) reached. Furthermore, the Claimant’s grievance which he submitted to the Respondent only four days later on 27 February 2024, references the Claimant’s understanding that “the Client wants me off site or demote me from my current Lead Officer position”. I therefore find on the balance of probabilities that the meeting that took place on 23 February 2024 was a Stage 1 meeting under the Client Removal (Site Ban) Policy. 27 February 2024 – The Claimant’s Grievance[37]On 27 February 2024 the Claimant submitted a grievance in writing to the Human Resources (HR) department of the Respondent. He made a number of complaints, including the following particularised matters: “1. Employers are not allowed to listen to or record conversations of their employees without the consent of the parties involved. 2. The employee must give their consent freely for each conversation you record, never presume that because someone consented to you recording one conversation, they’ll automatically consent to the recording of another. 3. Most companies will put their employee privacy notice in an accessible place and written or verbal consent must be given by all employees”.[38]In his oral evidence the Claimant accepted that, when he raised his grievance with the Respondent, Stage 1 of the Grievance Policy did not apply because he had decided to go straight to Stage 2 of the procedure and submit his grievance in writing. It was not in dispute that the Claimant submitted the formal grievance on 27 April 2024 and received an acknowledgement of receipt from Mr Kevin Round (Mr Round), from the HR department the following day, 28 April 2024. 8 March 2024 – Invitation to Stage 4 Investigation Meeting under the Client Removal (Site Ban) Policy[39]On 8 March 2024 Mr Perridge wrote to the Claimant to invite him to an Investigation Meeting on 21 March 2024. The letter set out an allegation as follows: “On the night shift of 14th / 15th February 2024 you directed a subordinate officer to fraudulently enter information into the official record. That as a shift supervisor your attitude & professionalism was below what the company and client expects constituting a breach of trust. Exhibiting behaviour that is likely to bring the company into disrepute”.[40]It also confirmed that “I am the appointing Investigating Manager for this case. You will be advised of the outcome of the investigation, as to whether or not there is a disciplinary case to answer”. I note that this last point ties in with the Respondent’s Client Removal (Site Ban) Policy which indicates that, if a case to answer is found at the Investigation Meeting stage, then the next step will be a Disciplinary Hearing. 11-15 March 2024[41]On 11 March 2024 the Claimant sent an email to Mr Lyddiatt, copying in Mr Round, asking, among other things, for an update about when his grievance meeting would be held. Later the same day, Mr Round replied to the Claimant apologising for the delay and stating that Mr Basra would be in touch shortly.[42]On 12 March 2024, following a telephone conversation between the Claimant and Mr Basra, there was also an email exchange between the two. Mr Basra asked “Are you happy to retract your grievance at this stage so the investigation can be conducted, and we will pick up the raised grievance after we have all the facts from the investigation?”. The Claimant replied “As discussed earlier in the phone call I would like you as my employer to carry out any necessary investigation in relation with my grievance”. Given the Claimant’s response, I find that the Claimant had agreed, at this point, to put the Respondent’s consideration of his grievance on hold until the investigation had clarified the relevant facts.[43]On 15 March 2024 Mr Perridge invited the Claimant to an investigation meeting on 21 March 2024. The Claimant asked for the meeting to be rescheduled due to his work commitments on 21 March 2024. The meeting was rescheduled to 22 March 2024. 22 March 2024 – Stage 4 Investigation Meeting under the Client Removal (Site Ban) Policy[44]Mr Perridge prepared a written note of what happened at the Investigation Meeting on 22 March 2024. Not all of the contents of that note were accepted by the Claimant as accurate. After hearing oral evidence from both the Claimant and Mr Perridge, I am satisfied that Mr Perridge explained that the meeting was to investigate the allegations set out in the letter dated 8 March 2024 (see above) and that the potential outcomes of the investigation were “there is no case to answer” or “there is a disciplinary case to answer”. I am also satisfied that Mr Perridge asked the Claimant about his conversation with Mr Mehmet on 14 February 2024 and the Claimant(a) accepted that his comments were unacceptable and unprofessional;(b) stated that he would not have said them if he knew that he was being recorded by the Respondent; and(c) raised concerns that he had been recorded in a way that was not compliant with data protection legislation and the Claimant’s right to privacy.[45]Later on the same day, following receipt of Mr Perridge’s draft notes of the meeting, the Claimant responded to Mr Perridge by email asking for amendments to be made to the notes and stating “I’m also looking forward to get any update about my grievance procedure […]”. 2 and 3 April 2024 – Correspondence between the Claimant and Mr Round[46]On 2 April 2024 Mr Round sent an email to the Claimant stating: “The investigation meeting Mick held was to discuss allegations that you told a subordinate to falsify a document which was captured on your body worn camera and later seen by the customer. […] You raised a grievance however following a telephone call with Varrinder you agreed to close this down temporarily whilst we looked into the allegations (above). If you would like us to open the grievance again we can place the investigation on hold whilst we look into your grievance points”.[47]Later that day, the Claimant responded to Mr Round by email stating: “[…] after my email to you, I was expecting that my grievance will start as I believe that there is multiple mistakes made by my onsite management and also some might be considered a breach of privacy. […] I had correspondence from Mick and Varrinder and I agreed to carry on any necessary investigation in relation with my grievance as I was the one who initiate the whole process […] Also, I would like to start my grievance process as it should start after 7 days from the date I had sent my email. In my opinion I should not work at my current place as it is very stressful to me, and to satisfy the Client I should be transferred to a different site”.[48]On 3 April 2024 Mr Round sent an email to the Claimant. He wrote as follows: “we have two meetings that need to take place. Firstly an investigation by Mick Perridge into allegations that you told one of your team to falsify a document. Mick met with you the other day about this […] In terms of the second meeting we need to arrange a grievance hearing to discuss your concerns around the body worn cameras, I will speak with Varrinder when he returns from leave and arrange to meet with you to discuss your concerns about this. In the interim I will request that Mick places the investigation on hold until Varrinder has completed the grievance process with you […]”.[49]Later that same day, the Claimant responded to Mr Round by email. The bulk of the email related to amendments the Claimant wanted to be made to the notes of the Investigation Meeting. He also added: “[…] Im looking forward to hear from Varrinder about my grievance”.[50]Based on these exchanges, I am satisfied that the Respondent had, at this point, offered to put the investigation on hold and re-start the grievance process, and the Claimant had accepted this proposed way forward. 18 April 2024 – Grievance Meeting[51]On 16 April 2024 the Claimant was invited to a grievance meeting and the meeting took place on 18 April 2024. In attendance at the meeting were the Claimant, his trade union representative, and Mr Basra. The Claimant was told that Mr Basra would consider the three points set out in the Claimant’s grievance letter (see above). He was given an opportunity to give more details as to his concerns and to indicate, in relation to each matter, how he would like the Respondent to resolve the matter. In relation to the first matter, the Claimant stated that better training and a Standard Operating Procedure should have been in place before he had been required to test the BWC device. In relation to the second and third matters, the Claimant proposed that he be transferred to another site with similar pay, or that he would have to find another job. 26 April 2024[52]Following an absence from work by the Claimant, Mr Waddington held a ‘return to work’ interview with the Claimant on 26 April 2024. Having heard evidence from the Claimant on this matter and been taken to email correspondence from this and the following day, I am satisfied that Mr Waddington was undertaking necessary checks that the Claimant was fit to return to work. However, I accept that the Claimant found Mr Waddington’s questions to be intrusive and felt harassed by him.[53]On the same day, Friday 26 April 2024, at 10:15am, Mr Basra sent an email to the Claimant offering him an alternative role at a new site (‘1 Undershaft’). It included the following: “As discussed, The contract starts as of 09:00 Monday 29th April 2024 So for Monday 29th the start times will be 09:00 for the day shift as of 19:00 on the Monday 29th it will revert to the normal 12 hour shift pattern. The proposed position is Senior Site Supervisor which will consist of a shift pattern of 60 hours Monday to Friday days as there will be a need for you to oversee the operation day to day, with a proposed payrate of £14.75 per hour . There maybe room to look at a change of shift pattern, after the site has settled down but I cannot guarantee this . Normal JLL uniform is to be worn at all times on site and a management presence will be on site Monday morning to assist in setting up the essentials and site requirements. Please can you let me know ASAP if this offer is deemed suitable”.[54]The Claimant responded by email later the same day, at 4:26pm, in the following terms: “Good afternoon, Below is the email I had sent you earlier. I decided not to send my resignation and leave it until Monday. Good afternoon, I cannot accept this offer as I have decided to leave. I will shortly send my resignation notice. I came to the point where it is almost impossible to me to carry on my duties. For the last three months I was dealing with huge amount of stress. However I was working hard and didnt take any off as Im very professional and devoted to my site and company.”[55]Based on this exchange, and the oral evidence of the Claimant and Mr Basra in relation to pay rates, I am satisfied that Mr Basra had offered the Claimant an alternative role at a similar level of seniority and pay, but had indicated that he could not offer the shift pattern preferred by the Claimant. It is also clear from this correspondence that the Claimant is actively considering resigning and has indicated that he will do so “shortly” or on “Monday” 29 April 2024.[56]Although there was no written record, it was accepted by the parties that there was a telephone conversation between the Claimant and Mr Basra on Saturday 27 April 2024. The Claimant stated in evidence that Mr Basra asked him to go to the 1 Undershaft site in uniform on Monday 29 April 2024. The Claimant said that he considered it but he was worried that if he attended the new site on the Monday, that would be understood by the Respondent as him accepting the new shift pattern and he could not agree to that. Under cross examination, the Claimant accepted that Mr Basra had not told him that he would be accepting the new shift pattern if he attended the new site on Monday 29 April 2024. He also accepted that Mr Basra had indicated that there could be an opportunity to change the shift pattern to his preferred shift pattern in the future. 28 April 2024 - Resignation letter[57]On Sunday 28 April 2024 the Claimant sent a letter of resignation to the Respondent. It stated: “I regretfully tender my resignation from my position as Security Officer at 1 Embankment Place, effective immediately. This decision is the result of the ongoing situations and treatment that have made my position untenable. After the incident with me being unlawfully recorded in covet manner almost 3 months ago, I became defamed by falsely allegations, isolated and discriminated which is breach of my contract. There was lots of mistakes on my management side, some might be consider as misconduct like recording and distributing footage from Body Cam on mobile device. Despite my grievance and raised concerns regarding required training and GDPR issues on the 26.04.24 again I had been told to wear Body Cam without any training. The same day I was harassed with inappropriate questions regarding my health condition after only one day of absence due to work related stress. My grievance was intentionally delayed and the outcome was not satisfactory. I couldn’t accept relocation offer as the roster is completely different to my current one and I wouldn’t be able to work days only. The alternative offers also involved a pay cut and demotion, which I find to be unacceptable in the circumstances. Despite my best effort to address the issues, the working conditions have significantly impacted my wellbeing and ability to perform my duties effectively. Due to the above circumstances, I feel forced to resign. The conduct which I described above, caused me to lose trust in my employer. Please consider this letter as my formal notice of resignation”.[58]The letter was incorrectly dated 28 February 2024. I am satisfied that this was a simple error on the Claimant’s part. The contents of the letter could not have been written around 28 February 2024 as they included reference to events that happened in April 2024 – for example, the Claimant taking a day off work due to stress and the Claimant being offered alternative roles.[59]Although the letter of resignation referenced giving notice, the Claimant confirmed in his oral evidence that his resignation was given without notice and effective immediately. 29 April 2024 – Investigation meeting outcome[60]On Monday 29 April 2024 Mr Perridge wrote to the Claimant with the outcome of the investigation. This letter was somewhat confusing to follow. First, it was titled “Outcome of Disciplinary Hearing” which was a mislabelling because no disciplinary hearing had been held and the letter itself was clear that it related to the investigation meeting held on 22 March 2024. Second, the letter set out factual findings (that the testing of BWCs had been clearly communicated to staff; that the instructions as to how to turn the BWCs on and off was all the training required; that staff were able to opt-out of the testing if they wished; and that the testing could have been given more time to set up and given more structure), but none of them provided a direct response to the allegations to be investigated (that the Claimant had directed a subordinate officer to make a fraudulent entry into an official record, and that amounted to a breach of trust bringing disrepute to the Respondent). Third, the outcome appears to list a low level warning “Record of conversation. No further action” despite the absence of a finding of wrongdoing by the Claimant. Fourth, according to the Client Removal (Site Ban) Policy and Mr Perridge’s investigation meeting notes, the investigation meeting could result in a finding of ‘no case to answer’ or ‘there is a disciplinary case to answer’. However, neither of those outcomes is referenced in this outcome letter. 30 April 2024[61]On Tuesday 30 April 2024 at 2:58pm Mr Basra wrote to the Claimant asking him to reconsider his resignation. He offered a seven day cooling-off period and told him that the alternative role that he had offered would be held vacant for the Claimant during this period. He also indicated that he was willing to discuss the shift pattern. At 5:44pm the Claimant replied: “Thank you very much for your email. If we can really discuss the shift pattern I will reconsider my resignation. Is it any chance I can come and see the site”. 3 May 2024[62]At 10:59am on Friday 3 May 2024, Mr Basra wrote to the Claimant asking if the Claimant could visit the new site on “Tuesday”, presumably Tuesday 7 May 2024. At 12:37am the Claimant replied stating “Good afternoon. I was waiting for your email. Unfortunately on Tuesday Im going to start my new job. Have a good weekend”. Mr Basra appeared to express surprise, replying within a few minutes with an email “What does that mean?”, but on Friday 10 May 2024 wrote again to the Claimant confirming that he was accepting the Claimant’s resignation and treating him as a “leaver”. 10 May 2024 – Grievance outcome[63]On Friday 10 May 2024 Mr Basra wrote to the Claimant with the outcome of his grievance. The Claimant’s grievance was partially upheld. Mr Basra did not accept the Claimant’s concerns about JLL having access to the recorded conversation or the offer of alternative roles to the Claimant. However, Mr Basra did accept that the testing of the BWC devices had been rushed and should have been better planned.[64]In my judgment, taking the Claimant’s evidence as a whole, the Claimant had decided to resign from his employment with the Respondent by Friday 26 April 2024. Although he did not submit his letter of resignation until Sunday 28 April 2024, and he engaged in further correspondence with the Claimant about a possible new role even after that on Tuesday 30 April 2024, his mind was already made up by 26 April 2024. This finding is consistent with the speed at which he was able to find another job, one which the Claimant was able to start as soon as Tuesday 7 May 2024.[65]I accept the Claimant’s account that he resigned because of dissatisfaction with the way that the BWC testing had been introduced and a feeling of humiliation in the way that the resulting recording of his conversation with Mr Mehmet had been investigated. I find that those were only part of his reasoning. Given the speed at which he was able to find and start another job, only nine calendar days between resignation letter and start date, I find that it was more likely than not that part of the Claimant’s reason for resigning was also that he had already started to look for another job and was reasonably confident of being able to secure that other job. The Relevant Law Constructive dismissal
The Relevant Law
[66]Section 95(1)(c) of the Employment Rights Act 1996 (“ERA”), provides “(1) For the purposes of this Part an employee is dismissed by his employer if –(a) …(b) …(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[67]The burden is on the Claimant to show that he was dismissed.[68]In Western Excavating (ECC) Limited v Sharp [1978] Q.B.761, Lord Denning stated: “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.”[69]In order to claim constructive dismissal, the employee must establish that:a. There was a fundamental breach of contract on the part of the employer. In these reasons the terms “serious breach”, “fundamental breach” and “repudiatory breach” are used interchangeably.b. The employer’s breach caused the employee to resign.c. The employee did not delay too long before resigning, thus affirming the contract.[70]Individual actions by an employer that do not in themselves constitute fundamental breaches of contract may have the cumulative effect of amounting to a breach of contract.[71]The test for whether there has been a fundamental breach of contract is an objective one, and the issue of whether a breach of contract is sufficiently serious to be classed as a fundamental breach is a question of fact and degree. In considering the question of constructive dismissal the primary focus is therefore on the employer’s conduct, and not the employee’s reaction to it. Merely unreasonable conduct is not sufficient to amount to a serious breach. Attempts to make amends by an employer do not undo a fundamental breach and if an employee chooses to reject the offer to make amends and resign they can still do so.[72]Even where the employer’s actions do amount to a repudiatory breach of contract, the employee can only claim constructive dismissal if his or her resignation was caused by the breach. Thus an employee who waits too long before resigning, or otherwise acts in such a way as to indicate that he or she would wish the contract to continue, will be taken to have waived the breach and affirmed the contract.[73]The duty of trust and confidence is implied into every contract of employment by operation of law. In Malik and Anr v Bank of Credit & Commerce International SA (in compulsory liquidation) [1998] AC20, the duty of mutual trust and confidence was defined: “The employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.” It has since been clarified that the duty on the employer is to,“…not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee”.[74]Once it is established that the employer has committed a repudiatory breach of contract (whether of an implied or express term of the contract of employment), the employee must go on to show that he or she accepted the repudiation. This means the employee must terminate the contract by resigning, either with or without notice, and the employee must establish that the resignation was caused by the breach of contract. It is for the tribunal to determine, as a matter of fact, whether the employee resigned in response to the employer’s breach rather than for some other reason.[75]Where there are mixed motives, a tribunal must determine whether the employer’s fundamental breach was an effective cause of the resignation. However, the breach need not be ‘the’ effective cause (Wright v North Ayrshire Council [2012] ICR 77, EAT). If the employee resigns for more than one reason, the crucial question is whether the fundamental breach is “one of the factors relied upon” (Abbeycars (West Horndon) Ltd v Ford EAT 0472/07). A delay in resigning following a fundamental breach may indicate that the Claimant has affirmed the contract or that the fundamental breach is not an effective cause of the resignation.
Discussion and Conclusions
[76]Applying the relevant law to the facts as I have found them, and taking into account the submissions made by both parties, my conclusions in relation to the agreed list of issues are as follows.[77]I will first address each of the matters which the Claimant alleges constituted a fundamental breach of contract. Did the Respondent require the Claimant and his colleague Mr Mehmet to carry out a test of a BWC device without any training?a. No. The training was limited and rushed. It only involved being shown the on/off button on the side of the device. However, I am satisfied that some training was provided and I am satisfied that the deficiencies in the training did not constitute a breach of the implied term of mutual trust and confidence. The use of the BWC devices on the day in question was a preliminary test to assist JLL in deciding whether to roll-out the use of BWCs at the site more generally. I am satisfied that it was made clear to the Claimant that this was a test of the equipment and that he understood. This is apparent from the wording that he uses at the time of the recording, referring to testing. In those circumstances, the limited training – referring only to the on/off button – was not so serious a deficiency by the Respondent as to amount to a breach of the implied term. If it did amount to a breach, for the same reason, it was not a fundamental breach. Did the Respondent record the Claimant and Mr Mehmet in a covert manner whilst they were testing the BWC device?b. No. The recording of the conversation between the Claimant and Mr Mehmet was captured on a BWC device operated by them. The Claimant knew that the purpose of the device was to record audiovisual footage, he had been shown the on/off button and he and Mr Mehmet were in control of whether the device was, in fact, turned on or off. The recording was not, therefore, hidden or operated in a covert manner in any way. Did the Respondent disclose the BWC device recording to JLL, without the Claimant’s prior consent and/or without informing the Claimant that any recording taken by the device could be directly accessed by JLL?c. Yes. It is common ground that the Claimant’s express consent was not sought specifically in relation to allowing JLL to review the video footage of his conversation with Mr Mehmet. I am also satisfied that the Respondent did not expressly tell the Claimant that the footage recorded on the BWC device used on 14 February 2024 could be directly accessed by JLL. However, I am not persuaded that this constituted a breach of the implied term of mutual trust and confidence. The contract of employment includes a term that the employee agrees to the transfer and processing of employee and personal information by the Respondent, in accordance with relevant legislation and the Respondent’s ‘Privacy Notice’. Furthermore, in his oral evidence, the Claimant accepted that there would be nothing improper in JLL reviewing any CCTV footage of him on site at work because he had been told about the CCTV and signed a Standard Operating Procedure consent form in relation to CCTV. I find this situation analogous. The Claimant had been told about the use of the BWC devices. Indeed, he was charged with carrying and operating the device so he was well aware of it. He had not been asked to sign a Standard Operating Procedure consent form, but I accept that that was because the BWCs were only being tested at this stage. In any case, I also accept that the Respondent’s account that the Claimant could have declined to be involved in the testing of the BWCs on the day in question and he did not. By taking part in the testing, I find that the Claimant provided implicit consent to any footage recorded being reviewed by JLL. It was not in dispute that JLL was the data owner and data controller of the relevant footage. If these acts by the Respondent did amount to a breach, for the same reasons, the breach was not a fundamental one. Did the Respondent use the recording to pursue the investigation of allegations against the Claimant?d. Yes. This is not in dispute. The recording showed the Claimant making comments that he later accepted were inappropriate and unprofessional. Prompted by JLL raising concerns about the conversation, the Respondent undertook an investigation under its Client Removal (Site Ban) Policy. The Claimant’s concern here was not that he was the subject of an investigation for his inappropriate comments. He accepted that it was legitimate for the Respondent to investigate that. The Claimant’s concern was using footage that he says was recorded covertly for this purpose. I found above that the recording was not made covertly and I have not been persuaded by the Claimant that there was anything improper about the Respondent’s use of the recording as evidence in an investigation into alleged inappropriate conduct at work. I therefore do not find that this act by the Respondent amounted to a breach of the implied term of mutual trust and confidence. If it did amount to a breach, for the same reasons, the breach was not a fundamental one. Did the Respondent unreasonably delay its consideration of the Claimant’s grievance, including not completing it before the investigation procedure?e. No. Looking at the timings overall, the grievance was submitted on 28 February 2024 and concluded on 10 May 2024 – a period of approximately ten weeks. Undoubtedly, that is not a quick process. However, I accept Mr Basra’s evidence that he made efforts to work as quickly as practicable, given the constraints of other people’s availability and operational demands during a busy period and that the Respondent’s grievance policy allowed for longer than 7 working days where such a deadline was not practicable. Importantly, with the Claimant’s agreement, the Respondent paused the grievance process whilst the investigation process progressed (between 12 March 2024 to 3 April 2024), a period of 22 days / 3 weeks – so that brings the total duration of the grievance process to seven weeks. The investigation outcome was sent to the Claimant on 29 April 2024 and the grievance outcome was sent to the Claimant 11 days later on 10 May 2024. Standing back and looking at the circumstances as a whole, I find that there was not unreasonable delay in the Respondent’s consideration of the Claimant’s grievance, nor in the grievance not completing before the investigation. It is clear that Mr Basra was taking steps to progress the grievance throughout the relevant periods, including interviewing the Claimant and others, and keeping in touch with the Claimant by email. I found no evidence that the grievance process had been deliberately delayed by the Respondent. If the timings of the Respondent’s completion of the grievance process did amount to a breach, for the same reasons, the breach was not a fundamental one. Did the Respondent fail to adequately inform the Claimant as to the purpose of the investigation and grievance procedures and how they interacted?f. Yes. I find that some of the Respondent’s correspondence with the Claimant was unclear. For example, Mr Perridge’s correspondence throughout displays a lack of clarity about which policy his investigation is taking place under. I have found, on the balance of probabilities, that it took place under the Respondent’s Client Removal (Site Ban) Policy because there is clear reference in the meeting invitation letter and the meeting notes to the available outcomes under a Stage 4 meeting under that policy. However, I acknowledge that the correspondence is not unambiguous. The letter dated 8 March 2024 states that the Respondent’s Disciplinary Policy is sent as an enclosure (and there is no equivalent reference to the Respondent’s Client Removal (Site Ban) Policy). Furthermore, the outcome letter dated 29 April 2024 is headed “Outcome of Disciplinary Hearing” and does not reference the outcomes available at a Stage 4 meeting under the Client Removal (Site Ban) Policy. I also note that, although the Claimant had been told on 3 April 2024 that the investigation could be put on hold pending the outcome of his grievance, in fact the grievance outcome appears to have concluded later than the investigation process. Taking these anomalies into account, I find that the Respondent did fail to adequately inform the Claimant as to the purpose of the investigation procedures and how it interacted with the grievance process.g. I do not, however, find that this failure was so serious as to amount to a fundamental breach of the implied term of mutual trust and confidence. That is because the Respondent made a number of reasonable steps to explain to the Claimant, including in writing (for example, Mr Round’s emails dated 2 and 3 April 2024), that the two processes were separate and parallel processes and the Claimant’s responses in writing indicated that he understood that. Did the Respondent tell the Claimant that he had to choose between taking a demotion from his supervisory role at his current site involving a pay cut or relocation to a different site also involving a pay cut?h. No. The Claimant did not maintain in evidence that he was told that he must accept one of these outcomes and that was also borne out in the correspondence. The Claimant himself had asked for a transfer to an alternative site and the Respondent had sought to accommodate this request. The Claimant gave evidence that one role that he was offered was remaining at the current site but in a less senior role. That was understandably not attractive to the Claimant and did not meet his desire to move to a different site. However, the Claimant also accepted in his evidence at the hearing that he was offered a role at a different site, at an equivalent level of seniority and at a similar pay rate. The Claimant was clear that the reason he chose to decline the role at 1 Undershaft, which had been offered to him before he submitted his resignation letter on 28 April 2024, was not because of a concern about the pay but because of a concern about the shift pattern. For these reasons, I am satisfied that the alleged conduct did not amount to a breach of the implied term of mutual trust and confidence or any express term of the contract as to pay. If the Respondent’s actions in relation to offering alternative roles to the Claimant did amount to such a breach, then I am satisfied that it was not a sufficiently serious breach as to amount to a fundamental breach. I note that the Claimant’s contract of employment required him to be flexible as to allocation of site and shift pattern. I note that in evidence the Claimant accepted that the pay offered was “similar” and so if there was any variance to contractual entitlement in relation to pay it was minimal. In addition, looking at the Respondent’s conduct as a whole, I am satisfied that the Respondent sought to find a role that would suit the Claimant, offering to consider changes to the working pattern, and even continuing to hold open the role beyond the Claimant’s resignation in the hope that he would reconsider. Lastly, it was clear from the Claimant’s resignation letter that the pay offered in relation the new role was not a factor that had caused the Claimant to decide to resign.[78]Taking the alleged breaches individually and cumulatively, I am not persuaded that the Respondent, without reasonable or proper cause, conducted itself in a manner that was calculated or likely to destroy or seriously undermine the implied term of mutual trust and confidence between the parties, or that breached an express term of the contract in relation to pay. The only alleged breach of contract that I have found proved is the allegation that the Respondent failed to adequately inform the Claimant as to the purpose of the investigation and grievance procedures and how they interacted. However, I do not accept that that was a such a serious breach that the Claimant was entitled to treat his contract as being at an end. That is because the correspondence indicated that the Respondent made clear efforts to explain the processes and the Claimant appeared to understand those explanations. If that breach was sufficiently serious as to amount to a fundamental breach, I have considered whether the Claimant did, in fact, resign in response to that breach. I conclude that he did not.[79]I have found that the Claimant resigned because of dissatisfaction with the way that the BWC testing had been introduced by the Respondent, a feeling of humiliation in the way that the resulting recording of his conversation with Mr Mehmet had been investigated, and because he was reasonably confident of being able to secure that other job. I was not persuaded that any lack of clarity around the investigation and grievance processes contributed to the Claimant’s decision to resign as it was not cited in his resignation letter (only his dissatisfaction with alleged delays and with the outcome) and there was no other evidence to indicate that it was a factor that he relied upon at the relevant time.[80]I therefore conclude that the Claimant was not dismissed. As there was no dismissal by the Respondent, the Claimant’s claim for constructive unfair dismissal is not well founded and fails.[81]As there was no dismissal, and the Claimant accepted that he resigned without giving any notice, the Claimant’s claim for notice pay is not wellfounded and fails. Approved by: