Mr S Chadwick v Sainsbury’s Supermarkets Ltd: 2401313/2016

EMPLOYMENT TRIBUNALS

Case No 2401313/2016

Between

Mr S ChadwickClaimant

Sainsbury’s Supermarkets LtdRespondent

Before

Employment Judge Holmes

In person for claimant

Ms Danvers (instructed by Solicitor) for respondent

Date 18 November 2019

JUDGMENT

ON APPLICATION FOR RECONSIDERATION It is judgment of the Tribunal that the application for reconsideration is dismissed, and the judgment of the Tribunal sent to the parties on 25 October 2016 is confirmed.

REASONS

Introduction

[1]The Tribunal has today been considering an application by the claimant for reconsideration of its judgment sent to the parties on 25 October 2016, in which the claimant's claims were dismissed pursuant to rule 37 of the 2013 Rules of Procedure as having no reasonable prospects of success. That judgment was issued orally on 6 October 2016, and then confirmed in writing, the Tribunal having heard the claimant’s complaint of constructive unfair dismissal over 4, 5 and 6 October 2016. In the hearing the claimant gave evidence, and had concluded his case when, of its own motion, the Tribunal raised with the parties whether the claimant had any reasonable prospect of showing that the alleged final straw that he was relying upon in support of his complaint of constructive dismissal could in fact be so categorised so as to give him any reasonable prospects of establishing that he was constructively dismissed. As his case depended upon establishing that, the Tribunal, having examined his evidence in relation to that particular issue and that issue only, concluded that he had no reasonable prospects of establishing such an incident as constituting a last straw and consequently issued its judgment dismissing his claim for that reason.

[2]That afternoon, as he was leaving the Tribunal, the claimant in fact contacted the Tribunal by email, an email that he sent at 14:20, in which he said after some gracious and complimentary comments about the handling of his case over the last three days, some comments he went on to make in relation to the evidence that had been given. In particular he said this: “It occurred to me as I was coming home that it had not been clear why a conversation between Julia and myself and Alex and myself were implicitly different irrespective of personal relationships. With Alex it could only be about a disciplinary procedure. If I wanted to appeal that decision it would go to Julia. With Julia it would only have been a coaching conversation. Julia does not disciplinary investigations as she is the line of appeal. If Julia issues warnings the line of appeal becomes Neil Chason and that would not have been applicable, so if it had been Julia than yes, I wouldn’t have walked out but it wouldn’t have been a disciplinary meeting it would have been a coaching conversation.”

[3]He went on to raise the questions to whether the judgment was final and whether the Tribunal could reconsider it, but those were the points that he wished to make and made very shortly after leaving the Tribunal hearing that lunchtime.

[4]The Tribunal took that as a potential application for reconsideration, but, as the written judgment had not been sent to the parties at that time it was not acted on immediately but the claimant was advised to await the written judgment before pursuing that application, which he duly did. Consequently he sent to the Tribunal a fully documented application for reconsideration which he sent on 7 November 2016. This runs to some 20 paragraphs, and the claimant has used that as the basis for the application today and has elaborated upon it in his oral submissions today.

[5]The respondents responded, and by a letter dated 24 November 2016 they advanced their contentions in opposition to the claimant's application and have again attended today, represented on this occasion by Ms Danvers, who did not appear on the last occasion, but she has spoken to that document, and indeed added further grounds of opposition in relation to the application.

[6]In terms of the written application, it can perhaps be broken down into various sections. In paragraphs 1-7 the claimant sets out what he has described today as “the guts of the application” which very much echo what he said in his email on 6 October, in relation to the difference in role between the two individuals concerned, Julia and Alex, and the paragraphs referred to very much deal with that aspect of his application. Paragraphs 8-12 go on to deal with what be termed “more procedural and legal issues” in relation to case law, and the way in which the matter was put in the List of Issues, but thereafter paragraphs 13-16 relate to the claimant's health issues and in particular his condition of depression, and then in relation to paragraphs 17-18 the claimant again goes on to deal with other issues relating to the events of 19 December, which was of course the day of his resignation. Then he concludes, ultimately, in paragraph 19 with some general observations in relation to the striking out, and submits that the Tribunal only did so on the basis of facts that, as he puts it, “it misinterpreted”. So that, as it were, is the written basis for his application, and today in his oral submissions he focussed largely on what, as I say, he has termed the “guts” of the application, which is the significance of the respective roles of Alex and Julia, to which I will come in due course.

[7]The judgment of the Tribunal striking out the claimant's claims was made on a very narrow basis, but one which was, the Tribunal considered, fatal to his claim, and indeed the claimant has not sought to argue that the Tribunal was wrong to take that approach in terms of the significance of the issue. He simply ultimately argues that the Tribunal should not have come to the view that it did. But the reason why the issue in question was so important was that the claimant's case depended on establishing that there had been what lawyers call a “last straw”. The claimant in his complaint of constructive unfair dismissal relied upon a number of actions taken against him , and conduct towards him largely on the part of Alex McKendry, and as set out in the Tribunal’s previous judgment that went on over a number of months, and prior to the events of 19 December 2015 the most recent incident had been in respect of what had been termed “the wine stunt” and the way in which Mr McKendry had, in the claimant's view, thwarted the claimant’s efforts to have a good showing on that particular promotion. The Tribunal heard all his evidence which, of course, for the purposes of the rule 37 consideration, it accepted at its highest in relation to that conduct.

[8]Crucially, thereafter the event which made the claimant resign, because he did not resign before then, whatever happened, was that on 19 December when he attended a meeting with Mr McKendry, and indeed his resignation took place in that meeting, although it was subsequently confirmed in writing by him on 24 December. It is common ground in the claimant’s case that he walked out; he resigned in that meeting with Mr McKendry. Consequently the claimant’s case was, and he has not sought to dissent from this, always that the meeting on 19 December with Mr McKendry in response to which he resigned, and in response to which he was entitled to resign.

[9]Consequently it was that, particularly with reference to the authority of Omilaju which, as the claimant has said this morning, he was provided with in the last hearing, the Tribunal looked at his evidence of what the last straw was said to be. Again, accepting his account of what happened in that incident, in response both to cross examination and the Tribunal’s own questions, it was on the basis of his evidence that the Tribunal, on the previous occasion, came to the conclusion that the claimant had no reasonable prospects of establishing that that incident, on 19 December, could constitute a last straw within the meaning of Omilaju so as to give him the entitlement to resign, and that consequently was fatal to his prospects of success in the constructive dismissal claim and that is the reason why it was struck out.

[10]In relation to that finding, the claimant effectively relies upon the evidence that he would have (if he had thought more on the question) given to the Tribunal, in essence, to the effect of the difference in the two individuals concerned, Alex McKendry with whom he had the meeting and Julia Blackett, who was the store manager superior to Mr McKendry. The difference in their roles was such that Julia Blackett would not, ordinarily, conduct a disciplinary meeting but Mr McKendry would do, and that as it was Mr McKendry who was having this meeting in which the claimant says, and for these purposes the Tribunal accepts (and in any event notes Mr McKendry’s own evidence, is very much to this effect in his own witness statement), that the claimant was told that there was going to be a disciplinary which the claimant, of course, says in paragraph 139 of his witness statement. So clearly that was before the Tribunal on the last occasion.

[11]The point made by the claimant in his application, and indeed very shortly after that hearing concluded on 6 October, was that as Julia Blackett did not ordinarily conduct disciplinary meetings, he would not have taken a meeting with her as being a potential disciplinary, but in the case of Mr McKendry he did, and indeed his evidence was that that was said, and the Tribunal accepts that for these purposes. That, he says, was something of what he describes as a “light bulb moment” later, as he was returning home, and that is why he emailed the Tribunal as he did and that email, of course, is very similar in terms to the main basis of his application in paragraphs 1-7 of his application today. It is, as he puts it quite rightly, the guts of the application.

[12]In terms of that being contended in the course of this application, the respondents’ position primarily is that it is too late for the claimant to do that. Ms Danvers who appears for the respondent today has taken the Tribunal through a number of authorities: AF Stephenson v Golden Wonder Limited; Trimble v Super Travel Limited; Williams v Ferguson Limited; Newcastle-upon-Tyne City Council v Marsden and Eastern Eye Plymouth Ltd v Hussain, and has taken the Tribunal to various parts of those judgments which make it clear, in summary, that a reconsideration application cannot be used as, as it were, a “second bite of the cherry” and that if a party, represented or otherwise, has simply not put his or her case as well as they wish they had done in hindsight, then that of itself is not a ground for seeking reconsideration. There should be finality in litigation so that the Tribunal should not accede to a request for reconsideration simply on that basis.

[13]The Tribunal, of course, takes that case law into account, but as Ms Danvers is aware, and would accept the basis for reconsideration is now under rule 70 of the 2013 Rules simply on the basis that it would be in the interests of justice to reconsider the previous judgment. The earlier Rules, of course, had sub-categories in relation to the grounds for such applications of which the interests of justice was in fact one, as something of a residual category, but there were other more specific categories which have been done away with in the 2013 Rules, and there is now just the simple one rule with the broad test of whether it is in the interests of justice to do so. That said, as Ms Danvers submits, the previous case law still remains relevant, particularly when, as those cases often did, the interests of justice were also relied upon in that context as well, so the previous cases do not cease to be relevant but the test is now the very simple test of whether it is in the interests of justice, and in coming to that conclusion the Tribunal has to consider all of the circumstances.

[14]In terms of the main contention made by the claimant, the essence, of course, is the difference in status and position of the two individuals concerned, Alex McKendry and Julia Blackett. The claimant was familiar with their evidence, in the form of their witnesses statements, and indeed commented upon evidence that they had given, in the case of Mr McKendry in his witness statement, or indeed as both of them gave in the course of the investigation that was carried out after his resignation. In terms of what he wishes to put forward, effectively it seems to me what he is saying is that in answer to the Tribunal’s questions as to whether, had it been Julia Blackett that held this meeting as opposed to Alex McKendry, he would still have resigned, to which he accepts, and is clearly the case that he answered “no”, he would not have done in those circumstances, that he would have added, as it were, a gloss to that evidence, by making reference to the difference in status that they held, and how it would not be usual or normal for Julia Blackett to hold a disciplinary He would therefore not regard a meeting with her as disciplinary.

[15]In terms of that contention, the respondents say they do not accept it necessarily, but for the purposes of the rule 37 consideration, of course, the Tribunal would have accepted that, and indeed it is a very common situation and certainly for the purposes of such an application the Tribunal would be entitled to say “well that’s a reasonable view to hold”, and the Tribunal would have accepted that the claimant held that view. Whether it was strictly speaking accurate or not would not matter at that stage, and whether the respondents went on to challenge it in their own evidence would not have mattered: the fact is the Tribunal would have accepted that that was the claimant’s view , and would have accepted for these purposes that it was one that he genuinely held.

[16]Two questions effectively arise, then, in this application. The first is whether the claimant can in effect even make it, which is effectively the first part of the respondents’ resistance to it, based on the cases that have been cited, effectively the respondent saying, “well the claimant cannot, on his way home, have a light bulb moment, and then wish he had put that forward and invite a reconsideration on that basis”, that is a second bite at the cherry of the nature that is held by a number of cases not to be the proper basis for a reconsideration application and consequently he cannot, as it were, even get that far as to raise this as a ground.

[17]Whilst appreciating the force of what the respondents submit in that context, the Tribunal does not accept that argument. Whilst appreciating that a second bite at the cherry is not something that reconsideration applications can be legitimately used for, the Tribunal does take very much into account the unusual circumstances giving rise to this application, and indeed giving rise to the Tribunal’s previous judgment. Those circumstances were that having heard the claimant's case in its entirety the Tribunal of its own motion raised the question, because of course it is one that goes to jurisdiction ultimately, as to whether the Tribunal could be satisfied that the claimant had reasonable prospects of success in an essential element of his claim. That was a surprise, the Tribunal accepts, to both sides, but obviously in particular to the claimant, because it affected his case particularly rather than the respondents’ case. So in terms of the circumstances in which he was put, the Tribunal accepts that they were unusual and doubtless were somewhat difficult for him.

[18]In terms of time, the claimant accepts that he was afforded time and the Tribunal has recorded that fact and both parties were offered the opportunity to take as long as they want to consider the issue, and the claimant indicated that he had had the time he needed. He contends that during the time that he was considering the matter and considering the case of Omilaju which he was provided with, the respondent’s counsel interrupted his preparations for other reasons, and whether or not that happened, frankly, seems to me not to be of great moment. The fact is the claimant had a limited amount of time, and whilst he considered that he had had enough time and did not raise with the Tribunal when he came back into the hearing on 6 October that he had been interrupted in his preparations, it is not surprising that in those circumstances under a degree of pressure, and, of course, as an unrepresented litigant, that he did not think of something that he did later think of. He thought of it clearly very soon after the hearing, because he emailed the Tribunal at 2.20pm, and it was, I am quite satisfied, something of an oversight, and a result of the somewhat pressurised conditions that he was operating under that the claimant omitted to give that answer, or make that point at that point in the hearing. Whilst I do not hold the respondents responsible for that, and do not think it greatly matters whether they were or were not, it seems to me that the mere fact that he has sought to add an additional factor, or a gloss to his evidence or a point he would have made, having raised it so soon after the Tribunal concluded its judgment on 6 October, I do not think that that of itself precludes the Tribunal from considering in this application the matters that he now seeks to put forward. So, whilst it may be to some extent a second bite at the cherry, it is one that the Tribunal thinks that the claimant ought to be able to raise, given the somewhat unusual and difficult circumstances in dealing with a highly technical and legal application, and issues that were raised suddenly and unexpectedly in the course of the hearing on the last occasion. So that argument the Tribunal considers is not fatal to his application and the Tribunal will therefore go on to consider the more important aspect, perhaps, and that is the effect of the additional matters the claimant relies upon in relation to the Tribunal’s previous finding, and whether those matters incline the Tribunal to alter its previous finding and reverse it so as to hold that the claimant has reasonable prospects of success, and should be allowed to continue with the hearing.

[19]That, then, in essence is a question of the merits of these additional matters and what difference, if any, they would have made to the Tribunal’s findings under rule 37 on the last occasion.

[20]In relation to that, the facts that the claimant accepted in his evidence, and indeed still does, and has clarified today , from his combination of his evidence and the documents put to him which he accepted previously, and still does, are these. Julia Blackett was the Store Manager; Alex McKendry was a Deputy Manager. Both were senior to the claimant, who was himself a manager. The matters giving rise to the meeting on 19 December were not disputed by the claimant in that, as he accepted in his evidence on the last occasion, and as is recorded in the Tribunal’s judgment, he as a manager was responsible for carrying out performance reviews (College Performance Review), CPRs as they were known, of the staff under him. By 19 December 2915, however, there were still a number, something like 27 or so, outstanding. This was a matter which was of a concern to Julia Blackett and the claimant accepted that she was so concerned, and that she would be entitled to be so concerned.

[21]The claimant’s case, of course, was that , to the extent that he had not been able to carry out that part of his responsibilities, Mr McKendry was himself partially or wholly responsible for that, because one of his “beefs”, as it were, with Mr McKendry was that Mr McKendry’s management of him over the previous few months or so had been such as to deprive him of the time that he, the claimant, needed to carry out those reviews as well as other duties. This was part of what the claimant perceived and indeed had alleged was the bullying that was taking place of him by Mr McKendry. So to that extent, whilst the claimant accepted the facts of the lateness of his CPRs and Ms Blackett’s concerns about them, he nonetheless considered that the responsibility for that, if anywhere, lay with Alex McKendry and that it was not the claimant's fault, or certainly not entirely his fault.

[22]It was against that background that the meeting on 19 December occurred, but the basic facts giving rise to it were not disputed by the claimant in his evidence last time nor indeed today.

[23]The accounts given, both by Mr McKendry and by Ms Blackett, which were given , in her case, in an interview in the investigation that was carried out after the claimant left, and in Mr McKendry;s case both in that interview and in his witness statement, are accounts the claimant has said, said, previously ,and indeed has confirmed today, he would not have challenged. The account given by Ms Blackett, that it was she who had raised the issue of the outstanding CPRs: she had raised them with Mr McKendry and it was she that directed him to speak to the claimant about it.

[24]Furthermore, in terms of the timing of the matter, Mr McKendry was the one who had suggested that this be delayed until after Christmas, but it was Ms Blackett who insisted that he carry out this meeting before Christmas. So in terms of the raising of the issue at all with the claimant, and the timing of it, the claimant accepted then, as indeed is clearly the case, but that was his evidence before the Tribunal then and it remains unchallenged by him, that it was Ms Blackett who was the instigator of him being spoken to about the matter at all, and , further, being spoken to at that time, rather than subsequently, after Christmas.

[25]Consequently, when the claimant was called by Mr McKendry to what is said, and I accept, a potential disciplinary matter, the claimant did not know then, but accepts from what he has learned subsequently, that the instigator of all that was Ms Blackett. The claimant’s reaction, however, to that meeting was, as is set out in his own evidence, and indeed was accepted by him on the last occasion, was that he reacted very badly to it; walked out in fact, resigning in the course of that meeting and probably, accepting as he did in cross examination on the last occasion, swearing at Mr McKendry. The reason that he so reacted, however, was clearly, as he accepted on the last occasion, the history between the two of them, and to some extent, as he relies upon and repeats in his application to the Tribunal particularly at paragraphs 13 onwards, in a large measure due to his own health at the time. As he reiterates in his application, in many ways seeking to contest any dispute that the respondents may make about this, but frankly this is not a matter that he need concern himself with, because , again the Tribunal accepts his evidence at face value, that undoubtedly , as he says his health had a bearing on his reaction on the day in question to the actions of Alex McKendry.

[26]Consequently, the Tribunal’s view is that paramount, and shining through this incident is the fact that Mr McKendry and the claimant's relationship up until that time was not a good one. The claimant had, for the reasons set out in the previous judgment, been very conscious that day of the last incident which he held Mr McKendry responsible for which was the wine stunt, as it was so called, and it will be recalled, of course, that the claimant's evidence was very much that one of the reasons why, when he walked in to see Mr McKendry in the room in answer to his summons to the meeting, he [Mr Chadwick] had that very day been restocking Prosecco which brought back into his mind the very issues in relation to the wine stunt that had given rise to the problems with Mr McKendry only a month or so before. That was very much the background against which the claimant went into that meeting. So the position is, and always was, that those were the facts the claimant accepted, or indeed alleged, led to the meeting on 19 December, which then caused him to resign.

[27]What, then, is the new additional factor that he seeks to rely upon to establish before the Tribunal that he has reasonable prospects now of showing that that meeting on 19 December was capable, (and that is all that he needs to show) of amounting to a “last straw” within the meaning of Omilaju? The only matter put forward, it seems to me, is this difference in status between Julia Blackett and Alex McKendry in terms of whether Julia Blackett, if she had held that meeting would have been likely to holding a disciplinary, whereas in the case of Mr McKendry that was the case. The question for the Tribunal is whether, had that been in evidence or submission before it on 6 October, or previously in the claimant’s evidence, that would have made any difference to the conclusion that the Tribunal came to.

[28]Having considered it, and accepting as I said the claimant's evidence, or submissions at least, that that difference in status was there and would have been accepted by the Tribunal as a relevant fact in determining the rule 37 issue, the Tribunal’s view is that it would have made no difference. Whilst appreciating that the claimant has had that additional idea and thought since the Tribunal’s hearing, and appreciating that he is doubtless right in that, it seems to the Tribunal, however, not actually to matter. In many ways the claimant says so himself, in terms of how he came to look at this matter and how he appreciated what he should have said at the time, and in particular the difference between objectivity and subjectivity. One of the reasons the Tribunal came to the conclusion that it did on the last occasion was that it came to the view that the claimant’s reaction to Mr McKendry was a highly subjective one. It was a highly understandable one , in the context of what had gone on in the preceding months on the claimant's case, and in particular in relation to the resurrection, in his mind, of the wine stunt incident only a few moments before the meeting, because the claimant was carrying out something that reminded him of it. Add to that the claimant's health condition at the time, which again he has referred to in terms of his own vulnerability in terms of health, the Tribunal considered on the last occasion, and still considers that all of this lays very much the ground for a subjective, and a highly subjective, reaction, and it must be said overreaction, to those circumstances. Indeed in paragraph 12 of his written application the claimant says this: “At the time I tried to justify the outburst I had in response to the action being taken by Alex rather than answer the question the Tribunal was actually asking. It wasn’t till I was on the way home I realised that in order to think objectively I should have been thinking in terms of store manager and deputy manager rather than Julia and Alex.”

[29]Well pausing there, yes maybe in answer to the Tribunal’s question he should have been, but the Tribunal does not consider for one moment that he was thinking objectively on the day in question. The tribunal thinks and is satisfied from his evidence on the last occasion that he gave it that he reacted in a highly subjective way, and the overwhelming impression that the Tribunal got then and gets now, from everything he said, and notwithstanding this difference in status, is that it was the reaction to the person holding the meeting as opposed to its content that matters. Indeed looking back on its notes from the last occasion the Tribunal notes that in answer to the question “so it was the person not the actions that led to your resignation” the claimant said “yes”. That was overwhelming, in the Tribunal’s view, on the last occasion and notwithstanding that the claimant has now, admittedly with hindsight, identified this objective difference between the two roles of the persons involved , the Tribunal does not think that this “objective” difference would have made any difference. The Tribunal would still have come to the view that the claimant's reaction was a highly subjective one to the person holding the meeting and not to the contents and circumstances of that meeting: a meeting which, had it been conducted by Julia Blackett may not have been disciplinary, the Tribunal accepts that, and may been of a different nature, but was nonetheless instigated by her; she instructed Mr McKendry, the claimant accepts, to hold a meeting at all, and she instructed him to hold it at that time.

[30]In terms of the Omilaju test as to whether or not all this satisfies that test, what the Tribunal would be left with is what would otherwise be a perfectly legitimate and innocuous management request in relation to looking into an admitted issue in relation to the CPRs at a time when the Store Manager had decided it should be dealt with, and had then delegated the matter to Mr McKendry. It seems to the Tribunal that in those circumstances, as it believed previously and still finds, the overwhelming reason for the claimant’s reaction was “the singer, not the song”, as it were: it was the personality , the identity, of the person holding the meeting, and that, of itself, is not capable of amounting to a final straw. In short, if the claimant would have no grounds to resign and complain of constructive dismissal if Ms Blackett had held even a potentially disciplinary meeting with him at that time, and for those reasons, that cannot change simply because the same actions were then taken, on her instructions, by someone else. The claimant may not have expected any such meeting to become disciplinary if held by her, but he would not have been entitled to resign in those circumstances if it had. We come back to the identity of the person carrying out the action, rather than the action itself, when judged objectively. Given that the claimant , though given time to reflect, and not act in haste, did not reflect in this way upon these matters and withdraw his resignation, but confirmed it, the Tribunal can see no basis for reconsidering his prospect fo success.

[31]So whilst appreciating the claimant's very cogent application, and everything that he has set out, and having considered, as the Tribunal thinks it was entitled to, the matters that he has put forward, the Tribunal does not, however, find that those are of sufficient weight to revoke or vary the judgment that it made. The Tribunal’s conclusion remains the same and therefore the previous judgment is confirmed.

[1]The Tribunal has been considering an application made by the respondents, initially in a letter dated 12 October 2016, whereby they applied for costs in relation to the claim as a whole, and further an oral application made today in relation to the costs relating to the reconsideration application that the Tribunal has just determined.

[2]In terms of the former, the grounds relied upon in that letter are set out in relation to two limbs of rule 76(1) whereunder: “A Tribunal may make a costs order in circumstances where a party has acted vexatiously abusively, disruptively or otherwise unreasonably in the bringing of the proceedings or the way in which the proceedings have been conducted; or (1)(b) Any claim or response has had no reasonable prospect of success.”

[3]It is in relation to that second limb, initially and primarily, that the respondents made their application, but they also make application in relation to the fact that an offer was made to the claimant which is contained amongst the papers attached to that letter in an appendix. This is a letter dated 5 July 2016, in which an offer of £5,000 was made to the claimant to settle his claim.

[4]In addition to the grounds set out in that letter, Ms Danvers has today added further submissions in support of the respondents’ application. She has pointed out to the Tribunal that the mere fact that the claimant is a litigant in person does not make him immune from an order for costs. The Tribunal should take into account that he is clearly an intelligent and able man, who has been able to make some research, and to make reference to caselaw, and things of that nature in the course of his conduct of this case. He was invited expressly to seek advice upon his position when the offer was made in July 2016, and, indeed, in the offer letter the addresses of two local CAB offices were provided to him. In all those circumstances, the claimant having proceeded and pursued a claim with no reasonable prospects of success, as the Tribunal has now found, should be liable to pay costs as appropriate. Although at this stage the Tribunal is not invited to fix the amount of those costs, it is nonetheless invited to determine that the claimant should be ordered to pay some costs, and it is that decision in principle that the Tribunal is taking first.

[5]In relation to the reconsideration application, a further and potentially separate application is made in relation to that as well, the respondents saying that regardless of the position in relation to the claim as a whole they should nonetheless have their costs of resisting, successfully as it turns out, the claimant's application for reconsideration, and saying that in effect the costs of that application should really follow the event. Reference was made to the BSM v Fowler EAT 0059/06 case which the Tribunal has in fact found and read.

[6]That, in summary, is the application and the grounds for it. The claimant’s response to it is largely set out in a document that he sent to the Tribunal, “comments on the respondent’s application for costs”, which he sent on 23 November 2016. That is a very full document in which the claimant sets out a number of matters under various headings in relation to the costs application as made then (of course it did not deal with the reconsideration application) but that runs to some 48 paragraphs, and also has appended to it the note of the Case Management Order that was made on 20 July 2016 in the preliminary hearing conducted by Employment Judge Feeney. In particular paragraph 2 of that document has been referred to by Ms Danvers in her application.

[7]In summary, because the document is available for all to see in due course, the claimant’s opposition is broken down into a number of constituent parts. The first one is under the heading “Employment Tribunals are predominantly a cost free jurisdiction” and he makes reference to that fact, and cases in relation to that. He then goes on to argue under the heading, “The threshold for awarding costs are not met” and he sets out his arguments in relation to that. He then goes on to argue in relation to the offer letter, which he terms a “Calderbank” offer using the terminology, of course, from the Civil Courts, but he sets out there his contentions in relation to that, and indeed refers the Tribunal to probably the most pertinent case on this type of offer which is Kopel v Safeway Stores PLC

[2003] IRLR 753

. He then goes on to deal with his ability to pay and then deals finally with the actual amount of the costs claimed, which as I say at the moment is not in issue pending the determination in principle.

[8]The claimant then makes reference to an alleged offer on 6 October, but as the respondents have not prayed that offer in aid then I need not concern myself with it.

[9]But in essence, and from what he has written in that document and what he said today, his position is, as one would expect, firstly, that costs are the exception rather than the rule and the Tribunal should be a costs free jurisdiction; that if the Tribunal is to consider awarding costs the threshold, particularly in relation to unreasonable behaviour, has not been met; that if the Tribunal is being asked to consider the effect of a Calderbank type offer then the Tribunal should be reluctant to do so because such offers do not have a proper place in the Employment Tribunal or if they do, this is not a case where an offer should have any effect in terms of costs; and finally, of course, his ability to pay which is has elaborated upon to some extent without giving full details , and documents in relation to his actual means, but he has provided further information today in his submissions about his current financial position.

[10]So, in summary, that is the claim for costs , and the response to it by the claimant, and the Tribunal has been considering whether or not any award of costs should be made either in relation to the claim as a whole or in relation to the reconsideration application.

[11]Dealing with the claim as a whole, the Tribunal appreciates of course that the respondents’ primary application is based on the second limb of rule 76(1), that being rule 1(b) “any claim or response has had no reasonable prospect of success”, because, of course, that is the finding the Tribunal made, which has not been varied or revoked on reconsideration. So that is the primary basis for the application, and to the extent that that threshold has been satisfied, of course, it clearly has, and the claimant cannot argue to the contrary in the light of the Tribunal’s previous ruling.

[12]In relation to other aspects of the application, however, it seems to the Tribunal that there the respondents would also be relying upon 1(a) in terms of the claimant's unreasonable conduct, insofar as they say effectively that he “unreasonably” refused the offer that was made to him in July 2016, and has “unreasonably” continued with the claim when he should not have done, and indeed, as has turned out, when it had no reasonable prospect of success.

[13]Dealing with the first of those limbs in terms of order of priority, obviously the first would be the ground that the claim had no reasonable prospect of success, so that threshold is, I am clear, satisfied. That then gives rise to the Tribunal’s entitlement to consider making a costs order, in respect of which it has a discretion. In terms of whether it should exercise the discretion in relation to ground 76(1)(b), the Tribunal thinks it should also however take into account those factors which are relied upon by the respondent under rule 76(1)(a) as well; in other words the claimant's conduct of the claim as a whole, because it seems to me that these things must all be taken into consideration in the exercise of the discretion under rule 76(1)(b) in any event, so they are bound to overlap and it seems only appropriate that the Tribunal considers them all together in deciding, in relation to 1(a), whether that threshold is met, and in any event whether in all those circumstances it should exercise its discretion under 1(b).

[14]In terms of those other matters, of course, primarily the respondents say, while the claim was found to have no reasonable prospect of success , that is a matter that was pleaded in the response, and indeed in paragraph 4 of the response it was stated to be the case by the respondents and, indeed, the respondents invited the Tribunal to consider striking out the claim or to pay a deposit at that time, but no applications were subsequently made for orders of that nature. The Tribunal takes Ms Danvers’ point that when considering the conduct of the claimant this is irrelevant, but the Tribunal nonetheless does note that this contention has been made in the response, and also notes it is a contention made in many responses, but in terms of whether it is pursued , in this instance it has not been, taking the point that the respondents may have tactical reasons for not pursuing those matters, but they did not and the claimant, as it were, continued with the claim through a preliminary hearing , and onto a full hearing, and this hearing.

[15]It is appreciated, of course, that the claimant has failed, and failed for the reason that his claim was found to have no reasonable prospects of success entitling the Tribunal to consider making the award. In terms of the claimant’s conduct, however, the respondents having in their offer letter suggested that he seek advice and giving him addresses where he could so, the claimant in fact did do so, and he sets out, in his grounds of opposition to the application, the steps he took to get advice, and indeed what (without waiving privilege) that advice was, and they are set out at paragraphs 13 and 14 of his document in opposition. He took the offer letter, in fact, to a Citizens Advice Bureau and received advice in relation to it, but the upshot of that was that he was of the view that his claims had reasonable prospects of success, and that the offer was not acceptable and he rejected it on that basis.

[16]In terms of the merits of the offer, of course, it was said to be and clearly is on a commercial basis, being in the sum of some £5,000. The claim, of course, potentially as put by the claimant was in the order of £30,000 compensatory award and I think some £10,000 basic award , subject to any appropriate caps, but the total value was in that order, so in terms of the offer in relation to the claim, it was clearly a commercial offer as opposed to one based on any, as it were, percentage prospect of success, as indeed respondents are entitled to make. Indeed one could observe that that is probably the only way in which a respondent can seek to protect itself in costs these days, and that by at least making such offers in those terms respondents put themselves, or seek it, in the position where if successful they at least have an argument in relation to costs, and one can well understand why that was done.

[17]The claimant, of course, did seek advice and in the light of that advice did continue the claims. The claims, when they came to the preliminary hearing, were referred to in relation to paragraph 2 of the note of that hearing in relation to constructive dismissal as being “based on a number of incidents forming a course of conduct with a last straw and/or some of the incidents may be sufficient by themselves to be fundamental breaches of contract entitling the claimant to resign and claim constructive unfair dismissal”. Pausing there, whilst a last straw is referred to at that point, which was July 2016, the claims were not necessarily identified as being those which resulted in a last straw claim and there was a possibility, at least, or an argument that some of the incidents might have been sufficient in themselves to justify a fundamental breach of contract, but that was not ultimately the way in which the claim was put by the claimant , and it was ultimately put as a last straw case . It was because that last straw was wanting that the claim was ultimately unsuccessful, for the reasons given in the previous judgment.

[18]So in terms of last straw at that point it is there, but it is not identified as being necessarily a last straw any more than in the response that was filed, which was a substantial document which dealt with the allegations, was any specific point taken on last straw, possibly because the claim at that point had not been pleaded in that way. But to the extent that the claimant is being criticised for not appreciating this much earlier than he did, (if indeed he does) in terms of identification of that as an issue it is not as apparent, and not as paramount as obviously it has since become.

[19]That has some relevance, the Tribunal considers, because when considering in overall terms his conduct, and whether it was unreasonable and in terms of the discretion that does arise in any event under 76(1)(b), that seems a relevant and pertinent consideration. This is not a case where the claimant has said from day one “this is my last straw” and the respondent has responded by saying “no it wasn’t and it can’t be”, nor has the Tribunal identified in a previous preliminary hearing that that was necessarily the case.

[20]It is indeed a highly significant feature, the Tribunal considers, that the way in which the claim has ended for the claimant has been firstly of the Tribunal’s own motion, and secondly in relation to what could be considered as a very discrete and somewhat nuanced point. It is a point that arose ultimately on the precise terms of the evidence the claimant gave to the Tribunal. The reason why the Tribunal struck out the claims is set out in the judgments that are already before the Tribunal, but it will be clear from those, and indeed the circumstances of the case as a whole that not only was this a highly unusual step for the Tribunal to take but it was one that only arose at the end of the claimant's evidence and on the basis of the precise details of that evidence. An answer of a different nature on any particular question might have produced a different result, and it was something that would be not, the Tribunal is quite satisfied, immediately apparently to anybody. It certainly was not, it has to be said, apparent to the respondents at the end of the claimant's claim in terms of his evidence, because no application was made at that time. It was identified by the Tribunal and then, as it were, supported by the respondents once the Tribunal had raised the matter, but in terms of the obviousness of the point, and this is no claim by the Tribunal to any great insight or subtlety, but it does remain a fact that this particular basis for the claim being struck out was a discrete and narrow one which arose solely out of the precise terms of the evidence the claimant ultimately gave in the Tribunal.

[21]To that extent it seems to the Tribunal that to criticise the claimant, and particularly to seek costs from him on the basis that this is something of which he should have been aware much earlier, and was an obvious point and which means that he proceeded with a case which he should have been aware had no reasonable prospect of success, is not a terribly strong argument. This is not a case where the claimant's claim has been struck out because the Tribunal has rejected his evidence as being wholly improbable and unreliable. It is not a case where something has been concealed by him which has come out in the course of his evidence which has fundamentally undermined his claim, or anything of that nature. It is something where giving evidence which the Tribunal has accepted at face value and indeed has not really been challenged in terms of its veracity, has ultimately, on an analysis particularly of Omilaju, resulted in the Tribunal finding, reluctantly it has to be said appreciating the difficulty the claimant had, that the claim ultimately could not proceed any further. But that is a very unusual set of circumstances and is a long way off a claimant pursuing a claim which he either knew, or could reasonably have been expected to have known, had no reasonable prospect of success.

[22]So on that basis the Tribunal considers that the claimant's conduct in pursuing the claims, as he did up until this very hearing, is not in itself unreasonable, and indeed for those reasons the Tribunal would not exercise its discretion under 76(1)(b), notwithstanding that the claim was found to have no reasonable prospects of success, to make an award of costs.

[23]That does not dispose of the matter completely, however, because there is still the issue of whether the claimant, having rejected the respondents’ offer of £5,000 in its letter of 5 July 2016, ought nonetheless to be penalised in costs because he acted unreasonably thereafter.

[24]In relation to that, the point was made I think perhaps by an adviser, but is well made, that in terms of that settlement offer, again not surprisingly because it was a commercial offer, whilst the respondents said in relation to the merits of the claimant’s claim that they did not believe that the Tribunal would view the claim in the same way as the claimant did, no detail was given and no alleged specific weaknesses in the claimant's case were identified in that letter. It was a blanket, what one might call, disparaging of the claimant's claim, and an indication that the respondent took a different view, as was obviously apparent from the response. But in terms of this particular issue of course, that was not relied upon, and in terms of it having no reasonable prospects of success at that stage for any particular reason, nothing was said. So what we have is a perfectly understandable, and not uncommon these days, commercial offer to settle which the claimant rejected and upon which, as requested in the offer, he sought advice. Having got that advice he continued and continued through the Tribunal to the hearing that we have had.

[25]In terms of the effect of such letters, the Tribunal, and Ms Danvers I am sure would not demur from what the claimant has said in his submissions, the legal position is indeed as he sets out in relation to the effect of what are called Calderbank offers in other jurisdictions and their place in the Employment Tribunal. As I indicated before, he cites correctly Kopel v Safeway Stores which is probably the case which has had the greatest effect in relation to this type of offer, but ultimately the position is that whilst Calderbank type offers have no specific place in Employment Tribunal proceedings in the same way they would do in the more cost rooted jurisdictions of the High Court and the County Court, the case law makes clear that they are nonetheless offers that can be taken into account, and therefore a Tribunal is not entitled simply to ignore them, but is entitled to consider them and see what relevance they have , and then whether or not they should persuade the Tribunal either that in rejecting the offer a party has acted unreasonably , and secondly, if it has, or he has, whether the discretion should be exercised to make an award of costs.

[26]In terms of acting unreasonably, then it seems to me that in the light of the commercial, and somewhat blanket nature of the offer, without identification of the precise point upon which the claimant has ultimately gone on to fail, then this offer does not carry with it the same degree of risk of costs that an offer in other circumstances may do. Secondly, in relation to advice, the claimant was told to seek advice and did. That advice, of course, is a matter for him but he did not, as it were, just bury his head in the sand and reject the offer out of hand, he sought advice and then proceeded after getting that advice.

[27]But thirdly, and this is a feature of the case as a whole, this was a constructive dismissal claim. It was brought by an employee of several years’ standing who set out a number of allegations over a period of time at a time when his employment was clearly unpleasant for him, at a time when he was obviously ill for some of that time, and in which he made allegations which were responded to by the respondents, quite properly, and which raised factual issues. Constructive dismissal is a difficult concept. It is much more difficult than perhaps the general public realise and involves very precise legal analysis, as well as issues of fact. Pursuing a constructive dismissal case in these circumstances whilst not exactly the same as a discrimination case , involves many features similar to discrimination because it does require an examination of conduct of both parties over a period of time. A person who resigns and claims constructive dismissal is probably less able to judge at any stage, let alone an early stage, their prospects of success unlike, say, a person who is actually dismissed, where it is much clearer. Therefore the nature of the claim, it seems to me, is a relevant factor to take into account as well, in terms of whether the claimant acted unreasonably in either pursuing the claim or pursuing it as far as he did.

[28]Consequently, whilst appreciating the respondents’ position and that they can only do so much in terms of protecting themselves as to costs, and considering that their letter in July 2016 was a perfectly proper attempt to take a commercial view to, as it were, settle a claim which was clearly going to incur costs of that order if not more, and not saying for a second that they were unreasonable in doing that, equally the Tribunal cannot find that the claimant acted unreasonably, particularly having taken advice as required to do so, in rejecting that offer at that stage and pursuing the claims thereafter.

[29]Consequently, either on the basis that the claimant’s behaviour was not unreasonable under 76(1)(a) or by way of the exercise of the discretion which undoubtedly arises under 67(1)(b), and whilst appreciating the respondent’s position, the Tribunal in the very unusual circumstances of these claims and the reasons why ultimately they were unsuccessful, does not consider that it would be appropriate to make any award of costs on the claim.

[30]I turn now, however, to the reconsideration claim because that is put as a separate application, and indeed Ms Danvers suggested that it would be almost like costs following the event. Some support for that might be derived from the relevant part of the IDS Handbook on Tribunal Practice and Procedure where at paragraph 15:53 in reconsideration section is says this: “Costs Implications Where a party applies for reconsideration under rule 71 it is likely that the Tribunal will order the costs of any reconsideration to be paid by him or her.” Then it goes on to say: “This is particularly so in circumstances where the party wishes to make an application for reconsideration against a judgment that was made in consequence of its own default, for instance where the respondent failed to comply with the requirement to submit a response in time.”

[31]It goes on then to deal with various instances of that, and indeed also in relation to instances of rule 76 where, of course, power is given to make an award of costs where there has been breach of a Tribunal order or practice direction.

[32]The BSM v Fowler case referred to subsequently was a case in which the costs of an appeal that was held were indeed ordered because the whole reason for the appeal happening in the first place was the default of the other party in the original proceedings giving rise to the need for the appeal. Now with all due respect to the editors of the IDS brief, that initial statement, “where a party applies for reconsideration it is likely the Tribunal will order the costs of any reconsideration hearing to be paid by him or her” is, I would have to observe, something of a slight overstatement, because it seems to ignore the requirements for costs in terms of rule 76 in any event. As I understand it, no special or different considerations apply to reconsideration applications than apply in general. In other words, the threshold requirement still has to be satisfied. Now in this case in terms of the reconsideration there is no suggestion that the claimant was in breach of any Tribunal order or practice direction, and, although the claim was struck out as having no reasonable prospects of success that is not to say that the reconsideration application had that, and , indeed, the fact that the reconsideration application survived rule 72, where of course it is considered by myself initially to see if a hearing should be held. If I was of the view that it had no reasonable prospects of success it would have been rejected at that time, but that was not my finding and a substantive hearing on it has been held. So with all due respect to the IDS authors, I am not convinced that costs should necessarily follow the event, and consequently would have to consider whether there had been any unreasonable behaviour on the part of the claimant in this part of the case so as to entitle me to consider making an award of costs in relation to the reconsideration.

[33]I can see no such unreasonable behaviour, and, in fact, none has really been advanced. The respondents have responded to the application as they were entitled to do; the claimant has pursued it. He has failed and the original judgment has been confirmed, but that is as far as it goes. There was no previous application that the Tribunal should not even hear the application, and no contention that it had no prospects of success . If that have happened I would not have so held. It seems to me, particularly in the unique circumstances almost of the original judgment, and the claimant raising as he did a matter which was properly considered by way of reconsideration and did so within hours of leaving the Tribunal on the last occasion, then this was an application he was entitled to make. It is one he has not succeeded in, but the fact that he has not succeeded does not seem to me to give rise to the right to costs on this occasion either, and I make no ruling in the respondent’s favour on that application either. The costs applications are therefore dismissed.

[1]The claimant's case comes before the Tribunal on remission from the Employment Appeal Tribunal following an earlier hearing in October 2016 and a reconsideration hearing in 2017.

[2]The claimant was continuously employed by the respondent from 3 April 1989 until his resignation on 19 December 2015. The claimant started to work for the respondent in 1987 when he was a student and later joined the respondent on its Trainee Manager Scheme. The last role held by the respondent was as Dried Goods Manager at Leigh, Lancashire, from around September 2014. The respondent is a large retailer.

[4]Following his resignation, the claimant brought a claim of unfair constructive dismissal. The claim was received on 19 April 2016 and it followed early conciliation.

The Evidence

[5]The claimant gave evidence on his own behalf. The respondent called Alex McKendry, the Deputy Store Manager; Julia Blackett, the Store Manager; Steve Lamb, another Store Manager who dealt with the claimant's fair treatment complaint; and Neil Chason, a Regional Operations Manager who dealt with the claimant’s appeal against the outcome of the fair treatment complaint.

[6]There was a main bundle of documents with around 540 pages and a claimant’s supplementary bundle with approximately 700 pages.

The Issues

[7]The List of Issues agreed between the parties is as follows:(1) Did the respondent do the following: (a) Not allocating the claimant's department sufficient colleague hours in order to complete all elements of the workload assigned to him; (b) Alex McKendry impeding the claimant’s performance in respect of the wine event starting in Black Friday week 2015; (c) Alex McKendry instructing the claimant to forge “safe and legal” paperwork; (d) Holding an unjustified meeting with the claimant on 6 November 2015; (e) Alex McKendry threatening the claimant; (f) Alex McKendry bullying the claimant; (g) Alex McKendry’s conversation with the claimant on 19 December 2019 (last straw)?

(2) If so, did such conduct constitute a fundamental breach of the implied term of trust and confidence?

(3) If so, did the claimant resign because of it?

(4) If so, did the claimant affirm his contract prior to resignation?

(5) If not, did the respondent have a potentially fair reason for dismissal?

(6) If so, was the dismissal fair in all the circumstances? Employment Rights Act 1996

[8]Section 95 deals with circumstances in which an employee is dismissed and provides that: (1) For the purposes of this part an employee is dismissed by his employer if… (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.

Findings of Fact

[9]The claimant's contract of employment was last issued in 2014 when he worked at a different store in the Manchester region. Apart from the place of employment the other terms did not change when he moved to Leigh. Normal working hours were stated to be 39 hours a week. As to flexibility: “In order to provide great service to our customers you will be required to work any shift pattern according to the needs of the business, which will be agreed with your line manager. This shift pattern will include late nights, nightshifts, three in four Saturdays, one in four Sundays and Bank Holidays.”

[10]At the respondent’s Leigh store Julia Blackett was the General Store Manager. Alex McKendry was the Deputy Store Manager and under their management there were nine Department Managers, including the claimant who was the manager in the Dry Goods Department. The Department Managers had team leaders reporting to them.

[11]The store opened from 07:00 to 22:00 from Monday to Saturday and on Sunday from 10:00 until 16:00. A day shift could run between 07:00 and 22:00. A twilight shift could run from 16:00, 17:00 or 20:00 until midnight and the late-night team would work from 21:00 or 22:00 until 07:00.

[12]The store was a “Juniper” store. Juniper was the name of the project designed to remove a full nightshift from stores, replacing them with a smaller team with fewer members. The decision to make the store into a Juniper store was made before Mr McKendry joined the business.

[13]When the claimant arrived at the Leigh store there was a nightshift dealing with warehouse duties and overnight replenishment. According to his statement, the reason for his appointment to the Leigh store was to launch Juniper, a structural change in which the overnight replenishment operation was to be removed and replaced with a twilight operation for ambient replenishment and an early bird shift for fresh food replacement. The shifts were from 20:00 until midnight and 5:00 until 9:00. There was also a late-night team. The claimant was asked to oversee the overnight operation and at the end of the financial year there was a significant saving on the labour budget because of the savings in the removal of the Nightshift Manager and reduced nightshift premiums. The nightshift team at some stage asked the claimant if they could start on the fresh foods delivery as the early bird shift was struggling and they had the time to help out.

[14]In December 2014 the claimant was told that in 2015 180 hours would be taken off his department’s allocation of colleague hours to pay for the nightshift. He strongly objected and suggested that hours to pay for the nightshift were taken off fresh and produce departments as this was what the nightshift were mainly dealing with. This request was refused.

[15]Thereafter there were changes in the store’s management where members of the Management Team left to take on other roles within the business at other branches.

[16]The claimant, in his witness statement, wrote that he “had managed to make the Juniper operation work, and in fact, was the only department manager in a Juniper store able to do so. However, many aspects of my job role had suffered as a result. I was able to get most processes up-to-date by the time Alex McKendry arrived in June 2015”.

[17]The claimant had four team leaders reporting to him. He accepted in cross examination that he had never put a business case to Mr McKendry requesting more hours for his team, although the claimant says he was never asked to do this.

[18]Julia Blackett said that Alex McKendry was her “custodian of labour” with his aims being to ensure that the work that needed to be done was achieved and that “the bottom line came in”. In her view the number of colleague hours allocated to the claimant's department was correct. He was not short of hours and he achieved what he needed to achieve. According to her the claimant chose to use some of his own scheduled management hours to supplement the work of his colleagues rather than to carry out his management duties. The claimant, she felt, should have delegated more tasks to his team leaders and concentrated more on his own management responsibilities.

[19]In his evidence, although the claimant states that he was severely short of hours he does not state which elements of the workload assigned to his department he was unable to complete.

[20]The respondent from time to time holds a wine event, referred to by the claimant as a “wine stunt”, which involves selling six bottles for the price of four. In 2015 there was a wine stunt from Wednesday 25 November for two weeks. Black Friday was 27 November. There was also at the same time a clothing sale.

[21]The Leigh store was ranked 7th out of 21 stores in the region for its performance in a previous wine stunt. The store’s General Manager was happy with this result but the claimant was very passionate about the wine stunt and wanted the store to become the number one store in the region. The claimant was responsible for the sale of beers, wines and spirits notwithstanding that he was the Dry Goods Manager.

[22]The claimant became aware, probably in October 2015, at a Regional Dry Goods Christmas meeting, that there was a strong possibility of a wine stunt starting around 25 November. The Regional Dry Goods Management Team were challenged to improve their performance.

[23]The claimant had been frustrated with the previous wine stunt performance where the store was 7th because he felt he could not place the stock in appropriate second locations and was not able to secure additional stock, particularly because they were not an “events store”. He spoke about this to Julia Blackett and she arranged for the store to become an “events store”.

[24]The claimant accepts that he broke procedure by placing customer orders with a view to securing extra stock for sale during the promotion.

[25]According to the claimant: “On my return to store (from the Regional meeting) I informed Alex (McKendry) that the wine stunt would, in all probability, be taking place and spoke to him about the importance that the Regional Manager had placed on it. I told him that I would need some extra hours to deliver. I then spoke to my colleagues and asked the appropriate people that I couldn’t schedule them until the stunt had been confirmed but asked them to be available at short notice that week as historically we are not given much advance notice of the stunts. I obtained commitments from MO, JB, MW and possibilities from MW (2) and JM. At no point did Alex ask me for a business case to support my request. I was on holiday w/c 15 November. The wine stunt was confirmed in my absence. EB was new to my department and relatively inexperienced. She was not asked to provide a business case by Alex. Alex gave her no guidance to place second locations or secure extra stock from the events team to drive availability. On my return after my holiday my team leader, EB, told me that the wine stunt had been confirmed. I then reviewed the plinth advice and chose six lines that I considered to be strong offers and secured a commitment from RT at the events team that I would receive extra stock of those lines. I then spoke to the colleagues who had given me a commitment to work and agreed overtime with them. I then informed Alex of the action I had taken. He told me to cancel the overtime as he couldn’t afford it. I told him that he knew it was coming. He said, ‘you didn’t give me a business case’. When I protested that he hadn’t asked for one he smiled and said, ‘well it’s too late now. You have to cancel the overtime’. I then asked if I could use front of store space to build a wine display. Alex instructed not to do this until after General Merchandise had cleared all of their Black Friday stock. I argued that GM had received a labour investment and would have to replenish more often. I pointed out that I only wanted two boards of space and that GM could use all of the travellator and kiosk space. This was refused. I asked if I could set the boards up for Wednesday’s trade and Thursday’s trade and instruct the overnights to remove them after close of trade on Thursday. This was refused. I had previously discussed Black Friday with JE and agreed to relinquish the Pharmacy plinth to GM to support their stunt and did not think it professional to renege on this agreement so did not consider this to be a viable option. Alex has stated, and Nail Chason is a witness to, my flexibility and willingness to come in on my days off or holidays if there was a valid reason. Had Alex contacted me to confirm the event and requested a business case I would have happily have come in and given him one. EB was not asked to produce a business case in my absence. We improved our regional ranking from 7th to 3rd or top third to top 3, however you want to look at it. This was despite of what I considered to be Alex’s attempts to personally sabotage my performance in an event I knew the Regional Manager would be closely tracking and I had a personal investment in due to what I considered to be a poor performance in the previous wine stunt. I felt that his bullying had now escalated to not only affecting me personally but also the financial performance of the store.”

[26]Mr McKendry deals with this matter very briefly in his witness statement, saying: “…Simon has complained about a wine promotion event. I initially allocated him hours for this event. However, after this we calculated that the store had overspent on hours. I allowed Simon to keep the hours he had already spent but removed the additional hours I had given him. This is a standard management decision. If he wanted further hours he knew that the process was to present a business case explaining why hours were needed. He did not do this, while other colleagues did approach me with business plans.”

[27]In cross examination the claimant accepted that the decision on hours was one to be made by Mr McKendry. He accepted that it was the view of Julia Blackett that the extra hours that he wanted could not be afforded.

[28]In retrospect the claimant did not think it was the right management decision to refuse him assistance with the wine stunt, but he accepted that he was very personally invested in it and he found it upsetting. Indeed, the claimant was still finding this aspect of his claim difficult to deal with in 2019. This was exemplified by his comment that “third isn’t first”.

[29]The allegation that Alex McKendry instructed the claimant to forge paperwork relates to the store’s fridges and/or freezers. They are monitored remotely and if in a particular unit the temperature increases to a defined number a text is sent to the store to be actioned by the Trading Manager. The Trading Manager might be any one of the Management Team allocated to that task on a particular day. If the alarm was responded to within 30 minutes and there were no other issues then it would appear that no further paperwork was needed. If the alarm was not responded to in 30 minutes then paperwork was needed setting out what had happened. The claimant was the store’s “champion” in respect of this matter.

[30]The allegation does not appear in the claimant's resignation letter or his initial grievance. The first time it appeared was in a document prepared by the claimant called a “rebuttal statement” (provided to the respondent on 31 March 2016) which followed the outcome of his fair treatment complaint. It was a lengthy document setting matters out over 26 pages with the relevant paragraph, in the middle of a section dealing with the retail temperature management system: “I concluded that Alex was not dealing with members of management effectively or at all. At one point Alex instructed me to review the RTMS file and ensure that the file would be found to be in order if we had an audit. I advised him that I thought that was a breach of procedure and potentially illegal. I informed him that if he wanted this doing he should use the information I had provided to identify the members of management who had missed alarms to forge their own paperwork. Alex was not happy with this. I felt bullied by an implied threat of recrimination. I told him that I wasn’t comfortable completing temperature management control retrospectively and that whilst I would do it on this occasion it was his responsibility to deal with members of management who were missing alarms. I told him that if he wanted paperwork backdated and forged after the event to give the impression that missed alarms had been dealt with then he should ask the person who missed the alarm to forge the paperwork as I would not, under any circumstances, be doing so again. Alex wasn’t happy with this either but said he would make sure it wouldn’t happen again.”

[31]The paper records completed by the claimant were said not to be available to the Tribunal as according to the respondent they were only kept for a short time and destroyed by the time the claimant raised his complaint in March 2016.

[32]The claimant in cross examination accepted that he did not have raise the issue of being told to falsify records in his meeting with Alex McKendry on 6 November 2016 in the presence of Charlotte Singleton, the Café Manager, as a notetaker. He also accepted that it was not in his first grievance.

[33]He accepted that it was a reasonable management instruction, by itself, for Alex McKendry to instruct him to review the file. As to the exact words used, the claimant does not remember but it was to the effect that he should go and fill in the paperwork so if it was audited it was all there.

[34]The claimant's contention is that the paperwork should have been filled in by the responsible manager immediately following the event.

[35]Alex McKendry deals with this issue in his witness statement, saying that: “In relation to the audit, I have seen that Simon has suggested that I asked him to backdate or ‘forge’ documentation. This is completely false. I would never ask anyone to do this.”

[36]The claimant does not give a date for this allegation. He did, however, accept that in a coaching session with Alex McKendry on 20 October 2015 there was a note as to the claimant improving file maintenance and to talk about the performance of store managers at Monday’s meetings. It was noted that it was his sponsor area so he needed to police it and he was the safety net if something was missed. The claimant said he did not need training or support. He did not want to name and shame managers who missed the alarms at the Monday management meeting, and he said he would go to see Mr McKendry on a one-to-one basis, after which Mr McKendry would speak to the managers.

[37]On 5 November 2015 the Leigh store was audited internally and the overall risk rating was amber with a compliance rating of 95%. The issue that seems to have caused the problem related to temperature control. The auditor issued a report which mentioned alarms not being acknowledged or properly dealt with. In some cases it was found that there was no evidence of any action being taken following the alarms.

[38]Oral feedback was given on the day of the audit to Julia Blackett, Alex McKendry, the claimant and one other.

[39]According to Mr McKendry he met with the claimant as a result of the amber rating. He did this because the RTMS system fell within the claimant’s sponsored area. It was nothing personal. He would have asked to see any other manager if the issue had fallen within their sponsor area.

[40]A letter dated 5 November 2015, signed by Alex McKendry, was sent to the claimant: “I am writing to ask you to attend a meeting on Friday 6 November 2015 at 3.00pm. The meeting will take place in the manager’s office in store. The meeting is to investigate your alleged conduct; namely:• On 5 November 2015 the store received an amber safe and legal audit. This was due to the RTMS process not being followed correctly in store. This is your sponsor area and your responsibility to ensure this is followed. Please be aware this is not a formal disciplinary meeting. The meeting will be conducted by myself with a notetaker. You may be accompanied… Should you have any queries then please do not hesitate in contacting me.”

[41]Alex McKendry was accompanied at the meeting by Charlotte Singleton, the Café Manager, as notetaker. Ms Singleton was at the same level as the claimant and some of the café fridges were involved in the issue causing the failure of the audit. Upon reflection Mr McKendry accepted that it may have been uncomfortable for the claimant to have been questioned by Mr McKendry in the presence of Charlotte Singleton.

[42]The meeting notes show that the claimant accepted that file management was his sponsor area and he was ok to continue with the discussion without a colleague. In the meeting the claimant accepted that he had not spent enough time on file management. There was a dispute as to whether or not the claimant should have named and shamed defaulting managers in the Monday meeting, but the claimant said he would thereafter report directly to Mr McKendry.

[43]After a quarter of an hour’s adjournment there was some talk about corrective action being taken for the future. The claimant accepted as fair comment that he had “taken his foot off the gas” in relation to this matter.

[44]Mr McKendry concluded that no further action would be taken but the claimant was to ensure that he delivered on the steps they had discussed. The claimant concluded by saying he was sorry and he wished to move on.

[45]There was no mention of an allegation of falsifying records in the notes of the meeting.

[46]As to Alex McKendry threatening the claimant, the claimant refers to a comment he made at an afternoon huddle meeting at which he, Julia Blackett, Alex McKendry and others were present. It was to the effect that he was still waiting for Mr McKendry to buy him a pizza, he having bought a pizza for Mr McKendry on one occasion when they worked together on the night shift. According to the claimant after the meeting: “Alex followed me into the warehouse. He said, ‘who do you think you are, trying to show me up in front of the managers like that?’ I said, ‘Calm down. I didn’t mean to upset you, sorry. I was only joking’. He said, ‘Sorry? You will be’. He then walked away. He did not swear or raise his voice but there was an implied threat of recrimination.”

[47]This matter does not appear to have been put to Mr McKendry by the claimant. It does not appear in his witness statement.

[48]As to bullying, the claimant believes that Alex McKendry went out of his way to make the claimant’s life difficult with the way in which he would not agree with suggestions the claimant made for changes in the way in which things worked. He would pick on the claimant in connection with tidiness in the warehouse. The claimant believed that his hours were unfavourable when compared with those of his colleagues in relation to weekend and late-night working.

[49]In his resignation letter the claimant complains that he was often given more late nights than any other manager. Mr McKendry was not cross examined about this. From the rosters available it appears that the claimant did more late nights than early mornings but there was a considerable variation amongst other members of the management team. There was one other manager with a higher ratio of late shifts to early shifts than the claimant.

[50]The claimant accepted that he was generally content to do night shifts and that if a colleague on a night shift wished to find someone to exchange it with then the claimant would normally be the first person to go to.

[51]The events leading up to Alex McKendry’s conversation with the claimant on 19 December 2015 relate to Colleague Progress Reviews. The claimant provided a self-teach support guide for line managers (retail) in respect of colleague progress reviews. Progress should normally be reviewed every six months and each review should last around 45 minutes. The meeting was for the giving of feedback and the setting of smart targets. Review forms were to be completed and at the end of the process colleagues would be rated as “underperforming”, “opportunities to improve”, “succeeding” and “exceeding”. There was the appropriate supporting paperwork.

[52]In October 2015 Julia Blackett became aware that for her store there was an issue with CPRs. The claimant had 29 outstanding CPRs from a team of 30-40 colleagues. In the Monday meeting at the beginning of December 2015 she spoke to the management team, including the claimant, reiterating the importance of completing all of the outstanding CPRs. She challenged them by saying that they had two weeks until the pre-Christmas rush and that they needed to use this time to complete the outstanding CPRs. She did not want them hanging over their heads after Christmas. It was important for the process to be completed by everyone at the same time, so no-one felt singled out. To assist her management team in completing the documents before Christmas she informed them that she and Alex McKendry would trade the shop by taking over the tasks of the departmental managers on the shop floor during their shifts to allow them to meet with colleagues and complete outstanding CPRs on shift.

[53]After a week or so Ms Blackett was told that the claimant had done six out of 29 CPRs. She told the claimant that the process did not take a long time to complete and for shift workers it should only take 10-15 minutes each and he needed to get the process completed as instructed.

[54]By 18 December 2015 Ms Blackett had a meeting with Alex McKendry and an HR team member who was reporting to the Regional Office on CPR completions. The claimant still had more than 20 CPRs outstanding.

[55]They went on to discuss how to approach the claimant’s failure to complete the outstanding CPRs. Alex McKendry and HR thought it best to leave dealing with it until after Christmas but Ms Blackett disagreed, feeling it had to be addressed urgently. In her view the claimant knew that completing the process was important and he had not done it. He had clearly not acted upon her instructions and she felt let down by him. He was letting the rest of the store and the team down also by his inaction, and so she told Alex McKendry he had to let the claimant know that his lack of action was not acceptable. She was the person who instructed Alex McKendry to talk to the claimant about his failure to complete the outstanding CPRs on 19 December 2015.

[56]According to Alex McKendry his preference was to speak to the claimant about the outstanding CPRs after Christmas because it was a busy period and he felt the claimant would not react well, but it was the view of Julia Blackett that it should be dealt with before Christmas. Alex McKendry phoned the claimant and asked him to come up to see him. The claimant did not want to leave the shop floor because he was putting stock out. Mr McKendry said that he did need to speak to the claimant face to face. Mr McKendry produced some handwritten notes of the meeting.

[57]The handwritten note is dated Saturday 19 December: “5.30pm – Asked Simon to come up into the office:• Spoke to Simon about CPRs and still have 23 outstanding.

• He said ‘I know’ and ‘I’ve moved them on’.

• I said that ‘since October 20th you have been behind’ and that this is not acceptable.

• I feel that you are not doing what you should around completing these and I will need to move this to a disciplinary meeting after all the notes and conversations we have had.

• Simon told me to ‘stick my job, it’s a lot of shit!!’.

• I said there is no need for this and he stormed out of the office, said I could fuck off.”

[58]According to the claimant: “On December 19th, Alex called me to the manager’s office and told me he was going to take disciplinary action against me for not completing my outstanding CPRs. I had previously asked for the Fresh Foods Department to be made accountable for their own clearance. This was refused. I had previously asked for overtime to be brought in so I could complete them. This was refused. By this time my health had started to suffer. I was not able to sleep properly, I was stressed and was suffering from depression. I became very angry and told Alex I was leaving the business. It was clear that he had timed this so he could discipline me again the following week and the week after that as no progress would be made. I was so angry I wanted to physically attack him and that is completely against my nature. I’m normally a quiet calm, pleasant person, who enjoys working with the people around me and try to make it an enjoyable place to be. I had to leave as I couldn’t be put in a position where my health was going to suffer or one where I felt obliged to resort to violence.”

[59]In cross examination the claimant accepted that the request in early December to complete the CPRs before Christmas was not an unreasonable one, and he did not raise any issue when it was made. He agreed that the situation with regard to his failure to complete them was very serious.

[60]He accepted that on 20 October he had discussed with Alex McKendry his outstanding CPRs on the basis that they needed to be completed, and that not to complete them was not fair to colleagues. The claimant was advised to set out a clear plan to complete them to reach the point where there were none outstanding, and if the claimant needed to change shifts to accomplish CPRs then he should let Mr McKendry know.

[61]He did not feel the management instruction to get the CPRs done was unreasonable. He agreed that a plan was set up to enable him to do them but they were not completed.

[62]When Mr McKendry called him, the claimant was stacking Prosecco (wine) and was already in a bad mood.

[63]He did not challenge that it was Mr McKendry’s idea to speak to him after Christmas rather than before, and that Julia Blackett had told Alex McKendry to discuss it with him on 19 December 2015.

[64]According to the claimant, when he went in to Mr McKendry his first words were to the effect that Mr McKendry was going to give the claimant a warning for his outstanding CPRs. The claimant did not accept that it had happened in the way set out above from Mr McKendry’s note. Had Mr McKendry spoken in accordance with the note then it was the claimant's view that he would not have exploded in the way that he did.

[65]The claimant could not recall what was said. He had lost his temper to a large degree. He did not deny that he had sworn at Mr McKendry. He could not recall exactly what he said. He just recalled the anger.

[66]The claimant accepted that he was angry before he went into the meeting and he had a very strong reaction to what was said. He took it there and then as a warning but this may not have been the case.

[67]The claimant did not come back to work as expected the following day, and on or about 20 December he typed up his letter of resignation which he took in on 24 December 2015 together with his uniform.

[68]Julia Blackett made a manuscript note of what Alex McKendry texted her on Saturday 19 December following his discussion with the claimant. When he did not come in on 20 December Alex McKendry called the claimant, who said he had resigned with immediate effect and did not want to discuss matters. Julia Blackett decided to tell people that the claimant was absent for personal reasons to allow him time to reconsider. She also made a note of her meeting with the claimant on 24 December. The claimant said he knew it was not good timing but he had felt frustrated for months and things had come to a head. It related to hours. With regard to the CPRs, it was not his priority. His priority was the shop. The claimant said he could not work with Alex McKendry. Ms Blackett would be prepared to give him a personal reference if needed. She also said that had the claimant still been working for her then swearing at her deputy and leaving the store was not acceptable behaviour. She noted the claimant saying he did not remember swearing but had told Alex McKendry to “stick his job”.

[69]The claimant's resignation letter, addressed to Julia Blackett, stated that: “It is with great regret after 25 years’ service I am giving you written confirmation of my resignation with immediate effect on the grounds of constructive dismissal. I gave Alex McKendry a verbal resignation on Saturday 19 December. This arose from Alex’s decision to instigate disciplinary action against me for outstanding CPRs. He chose to take this action despite me making him aware for several months that I did not have enough hours on my department to fulfil my job role. From approximately March to November I have not been able to fill my allocated hours as even with overtime my contracted hours were too low. I was not able to recruit as the store is over contracted. During this time I was consistently running 50 hours short of my allocation and this often rose to 100. I believe I have been treated unfairly as despite my shortage of hours the store has overspent on labour due to the mismanagement of hours instore. The WATT should be used to determine how many hours each department should use but several departments are allowed to operate on an allocation well in excess of the WATT’s recommendation. As well as not having enough labour I am also often given more late nights than any other manager. During your listening group a few weeks ago I cited the previous week’s schedule when I was LNT Sunday, TTSF Monday, LNT Tuesday, off Wed and Thurs, LNT Friday and on my department Saturday. Whilst this was a particularly bad week it isn’t unusual for me to be given more LNT shifts than any other manager. As well as impacting on my work/life balance it also impedes my ability to complete my job role. I’m also given very few early starts in comparison to other managers. When I spoke to you a few weeks ago about Alex’s lack of support we discussed the last 25% wine stunt of the year. Neil’s direction had been clear in that he wanted an improvement in our regional standings. I therefore brought in overtime at short notice as I had been on holiday the previous week but Alex told me to cancel it as the store couldn’t afford the hours due to the influx of Christmas temps. However, GM and Clothing were allowed to use overtime for their stunts. It goes without saying that this is unfair treatment… I have always enjoyed my role as a department manager but I am no longer prepared to work under conditions that I feel to be so unfair.”

[70]The penultimate paragraph of the claimant's resignation letter has been excluded as it contains personal information relating to him and members of his family. Submissions

[71]Mr Roberts provided a skeleton argument set out over 19 pages. The claimant had the opportunity to complete his skeleton argument over the weekend and he produced a written document set out on four pages. The claimant dealt mainly with the facts.

[72]At the end of the evidence I made reference to the judgment of the Court of Appeal in Kaur v Leeds Teaching Hospital NHS Trust

[2018] IRLR 833

as an example of a recent case in which the Court of Appeal had dealt with the issue of constructive dismissal involving an alleged breach of the implied term of trust and confidence.

The Relevant Law

[73]Section 95(1)(c) has been set out above.

[74]The judgment of the Court of Appeal in Kaur was given by Lord Justice Underhill with whom Lord Justice Singh agreed.

[75]Taken from the IRLR headnote, the Court of Appeal held: “The Tribunal had not erred in striking out the last straw constructive dismissal claim. An employee who is the victim of a continuing cumulative breach is entitled to rely on the totality of the employer’s acts notwithstanding a prior affirmation; provided the later act forms part of the series. This does not involve any tension with the principle that the affirmation of a contract following a breach is irrevocable. Cases of cumulative breach of the implied term of trust and confidence fall within the well-recognised qualification to that principle, that the victim of a repudiatory breach who has affirmed the contract can nevertheless terminate if the breach continues thereafter. It is true that the correct analysis in such a case is not that the victim can go back on the affirmation and rely on the earlier repudiation as such: rather, the right to terminate depends on the employer’s post-affirmation conduct. However there is nothing wrong in speaking of the right to terminate being revived, by the further act, in the straightforward sense that the employee had the right, then lost it but now has it again. In the normal case where an employee claims to have been constructively dismissed it is sufficient for a Tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation).

(5) Did the employee resign in response (or partly in response) to that breach? None of those questions is conceptually problematic, though of course answering in the circumstances of a particular case may not be easy… The test is objective, and a fair disciplinary process cannot, viewed objectively, destroy or seriously damage the relationship of trust and confidence between employer and employee.” Conclusions Were sufficient colleague hours allocated to the claimant's department in order to complete all elements of the workload assigned?

Conclusions

[76]Based on the claimant's statement that he had managed to make the Juniper operation work, and his comment that he was the only Department Manager in a Juniper store able to do so, and because the claimant has not provided any evidence of any inability on the part of his team to complete all elements of the assigned workload, I am unable to find that insufficient colleague hours were allocated to the claimant's department in order to complete all elements of the workload assigned. Did Alex McKendry impede the claimant's performance in respect of the wine stunt?

[77]There is no doubt that the claimant took the view that his performance was impeded by Mr McKendry refusing to allow overtime for members of his team and/or for the claimant to display wines in prominent areas within the store. Whether the store’s performance would have improved had the claimant been allowed the resources that he wanted must be a matter of conjecture. Was the claimant instructed to forge paperwork in connection with the temperature management system?

[78]The onus is on the claimant to satisfy me on this point, as well as on all of his other contentions. Although the absence of the paperwork from the bundle is a cause for concern I note that the allegation was not made by the claimant in the 6 November meeting. It was not in his resignation letter and only appeared in his subsequent document produced at the end of March 2016. The claimant has accepted that it would have been a reasonable management instruction to make sure the file was in order. Based on the evidence before me I am unable to be satisfied that it is more likely than not that the claimant was told to forge the paperwork. Was an unjustified meeting held with the claimant on 6 November 2015?

[79]I am satisfied that following the failure of the audit on 5 November it was justified to hold a meeting with the claimant on 6 November 2015 as it was his area of responsibility that caused the failure of the audit. The claimant was made aware before the meeting that it was not a disciplinary meeting. It would have been better had the meeting not been held by Mr McKendry with the particular notetaker, but that in my judgment does not mean that the meeting was itself unjustified.

[80]As to threatening and bullying, I do not conclude that the behaviour of Mr McKendry went this far. He had a job to do as Deputy Manager and he did it. The claimant seems to have been treated in a similar fashion to other colleagues in relation to hours of work etc.

[81]There clearly was a conversation on 19 December. As a matter of fact, I prefer the version provided by Mr McKendry in his note, the contents of which are set out above. I find that the conversation was held after clear management instructions had been given to the claimant in October and December to complete his CPRs and that he had not made sufficient progress by 19 December, notwithstanding arrangements being made to assist managers to carry out the reviews. On the basis that the claimant was unable to remember what he said to Mr McKendry, and the reference in his resignation letter to the instigation of disciplinary action it seems to me that the claimant’s recollection of what Mr McKendry said to him was wrong. I do not find that the claimant was told on 19 December that he was going to be given a warning. I find that the claimant was told that it was necessary to move it to a disciplinary meeting. Did any of the behaviour of the respondent constitute a fundamental breach of the implied term of trust and confidence?

[82]I have not found in favour of the claimant in respect of the issues set out at 7 (1), (a), (c), (d), (e) and (f) in the list of issues.

[83]As to (b), impeding the claimant's performance on the wine event, I do not find that the actions of the respondent, through Mr McKendry, constituted a fundamental breach of the implied term of trust and confidence. Mr McKendry was entitled to take the management decision that he did to the effect that he did not wish to allocate further overtime or floorspace to the claimant to assist him with the wine stunt. The wine stunt was not the only promotion ongoing at the relevant time. It is for the store’s Manager and Deputy Manager to allocate staffing and space as they think appropriate. This did not amount to a fundamental breach of the implied term of trust and confidence.

[84]As to (g), the conversation with the claimant on 19 December, I note from Kaur that a fair disciplinary process cannot, viewed objectively, destroy or seriously damage the relationship of trust and confidence between employer and employee. To state that it was necessary to move to a disciplinary procedure, in the circumstances where the claimant had failed to follow a reasonable management instruction, was in my judgment a reasonable thing to say. Saying that the matter had to move on to a disciplinary process was not itself a part of the disciplinary process. The claimant resigned before any formal disciplinary process was started.

[85]Looking at the Kaur questions, the most recent act on the part of the employer which the employee says caused or triggered his resignation was the meeting on 19 December. The claimant has not affirmed the contract since that act because he resigned immediately after it. In my judgment the act was not a repudiatory breach of contract. It was a simple statement to the claimant, who had failed to follow reasonable management instructions, that it would be necessary to move on to a disciplinary process.

[86]On the basis of my findings in respect of the various matters alleged, this was not part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence.

[87]For these reasons the claimant’s claim that he was unfairly dismissed, when he resigned, is dismissed. Employment Judge Sherratt 18 November 2019