Mr G Broadway v Knowsley Metropolitan Borough Council: 2403021/2017
JUDGMENT
[1]The claimant resigned from his employment with the respondent on 31 March 2017 but he did not do so in circumstances in which he was entitled to terminate his employment without notice by reason of the respondent’s conduct. The claimant was not constructively unfairly dismissed.[2]The respondent made unauthorised deductions from the claimant’s wages earned in respect of work performed by him on 15-17 and 20-22 March 2016 inclusive. The sum payable by the respondent to the claimant in respect of this judgment is to be determined at a remedy hearing.[3]The respondent failed to pay to the claimant the holiday pay due to him that had accrued up to and including the effective date of termination of his employment on 31 March 2017 during the holiday year immediately preceding that date. The sum that the respondent is to pay to the claimant in respect of this judgment is to be determined at a remedy hearing.[4]The claimant's claim that the respondent failed to pay to him wages and/or sick pay due to him (and therefore that the respondent made unauthorised deductions from wages and/or was in breach of contract) for the period from 23 March to 31 March 2017 is not well-founded, fails and is dismissed.REASONS
[1]The Issues The issues in the case, that is the questions that the Tribunal had to decide upon, were agreed with the parties at the outset when the claimant clarified what it was exactly that he was alleging against the respondent. The questions that the Tribunal had to decide upon were:1.1 Did the respondent act in such a way as to seriously damage or destroy the relationship of trust and confidence with the claimant, justifying the claimant resigning and claiming that he had been dismissed in one of the following ways:-1.1.1 Requiring the claimant to work in circumstances that endangered his health and safety;1.1.2 Requiring the claimant to work in circumstances where the health and safety of pedestrians, and specifically children, were put at risk;1.1.3 By the attitude of management to the claimant which was discourteous, unfair and applied underhand pressure upon him causing him stress;1.1.4 In not dealing with a request that he be allowed to reduce his hours of work (referred to the claimant in his resignation letter as “financial restraints”);1.1.5 Whether one or more of those matters, if they amounted to breaches of contract, were the reason for the claimant's dismissal or had an influence upon it;1.1.6 Whether the claimant delayed too long between the matters of which he complained and his resignation such that he could be said to have accepted the respondent’s behaviour?1.2 Whether the respondent breached the claimant's contract of employment expressly with regard to his contractual entitlement to sick pay by requiring him to make personal contact with his line manager in accordance with its sickness policy.1.3 Whether the respondent failed to pay to the claimant wages and/or sick pay due to him for the period from 15 March 2017 to his resignation on 31 March 2017, where the claimant was in work and says he had earned wages for the period from 15 March to 20 March 2017, but that he was ill for the period from 23 July to 31 March 2017 and did not attend work.1.4 Whether the claimant was entitled to holiday pay during the final holiday year in which he worked, and whether the respondent paid to him holiday pay that was due to him or that he had accrued and was due on termination of employment.[2]The Facts2.1 The claimant was employed by the respondent as a School Crossing Patrol person (“SCP”) from 23 October 2003 until his resignation on 31 March 2017 which he confirmed to the respondent in an email dated 3 April 2017 which appears in the respondent’s bundle at pages 17-20. The claimant worked 18 hours per week between Mondays and Fridays of each week on three shifts, namely 07:50 to 09:00, 12:00 to 13:20 and 14:50 to 16:00. He worked at a pedestrian crossing at Valley Road, Kirby. This crossing was a public crossing for pedestrians on a busy dual carriageway and he was appointed SCP because of the use of that crossing by students attending a school and attending a college. The claimant used to oversee the carriageways that took traffic towards Kirby. His wife (and advocate at today’s hearing) worked with him, working the same shifts and hours per week, managing the crossing on the carriageways that led from Kirby to Fazakerley.2.2 There is no dispute that this was a very busy thoroughfare. At the material time in question, that is from Monday 6 February for a period of some eight weeks, the respondent was engaged in installing pedestrian crossing lights and consequential road design and improvement so that the crossing would be traffic light controlled. It was not intended that the installation of lights at this crossing would lead to termination of the claimant's employment or redeployment, but the lights were seen as additional assistance and a safety measure. The roadworks and installation of lights was being overseen by contractors referred to as “Kings”. Kings engaged subcontractors.2.3 The claimant’s immediate line manager was Patrick Titman (Security and School Crossing Patrol Coordinator) who gave evidence to the Tribunal. Mr Titman’s immediate line manager was Mr Stephen Donnelly (Security and School Crossing Patrol Manager) who gave evidence to the Tribunal. Mr Richard Thorpe (Road Safety and Sustainability Team Leader) also gave evidence to the Tribunal on behalf of the respondent, as he liaises on a regular basis with Stephen Donnelly and Patrick Titman as he did throughout the material events in this case, in a situation where his responsibilities included design and supervision of road safety and sustainability engineering schemes reviewing amongst other things the suitability of traffic management layouts and road safety education. The claimant gave evidence to the Tribunal as did his wife, who confirmed the truth of the claimant's statement having been intimately involved in all the matters described below.2.4 Because of the nature and extent of the roadworks being undertaken by Kings on behalf of the respondent at the Valley Road, Kirby crossing commencing on 6 February 2017, it was suggested that an alternative crossing place be used which would be patrolled by the claimant and his wife in their roles as SCPs. The alternative crossing site was some hundreds of yards further along the dual carriageway. Through habit or perceived convenience, or for whatever personal reason, a considerable number of pedestrian students at the school and college nearby continued 6 and 8 February 2017 to cross Valley Road at the original[3]The Law Constructive unfair dismissal 3.1 Dismissal can include where an employee resigns because of conduct by the employer which seriously damages or destroys the relationship of trust and confidence. Such behaviour would amount to a fundamental breach of contract. If there was such a breach of contract, and it is not a[4]Application of Law to Facts 4.1 Claim of constructive unfair dismissal – 4.1.1 The respondent did not commit a fundamental breach of the claimant's contract. At all times the respondent reacted to concerns expressed by Kings, by the claimant and Mrs Broadway. At all times the respondent’s responses to health and safety issues raised both in respect of pedestrians and the claimant were in compliance with good practice and the applicable health and safety regulations affecting the highway and crossings. The claimant made many and varied complaints about the conduct of pedestrians, drivers, the effect of adverse weather, the behaviour of contractors and subcontractors, the signage and underfoot conditions. The respondent reacted appropriately on each occasion. The claimant has not proved that the conduct of the respondent jeopardised the health and safety of pedestrians, workers or employees and specifically the claimant. The respondent was entitled to query the attendance at work of both the claimant and Mrs Broadway and did so in an appropriate manner. The respondent was entitled to insist upon personal contact from the claimant in respect of his ill health