Mr R Hall v Concrete Fabrications Ltd: 2403261/2017

EMPLOYMENT TRIBUNALS

Case No 2403261/2017

Between

Mr R HallClaimant

Concrete Fabrications LtdRespondent

Before

Employment Judge Slater

Date 5 November 2018

JUDGMENT

[1]The complaint of constructive unfair dismissal is well founded.

[2]There will be a remedy hearing on 16 November 2018 beginning at 10 a.m.

REASONS

[1]The claimant brought a claim of constructive unfair dismissal. Following an amendment to the claim allowed in the Reserved Judgment from a Preliminary Hearing held on 8 December 2017, the issues to be determined were agreed by the parties as follows:-(1) Did the respondent recruit for the claimant’s job;

(2) Did the respondent conduct itself as otherwise alleged, namely, “untruthfulness in the manner in which they denied all knowledge of advertising the claimant’s job”.

(3) If (1) and/or (2) is determined in favour of the claimant:- (a) Was the respondent’s conduct in the circumstances repudiatory of the implied term of trust and confidence; (b) If so did the claimant leave in response to the alleged breach. (c) Did the claimant delay too long in terminating the contract in respect of the alleged breach?

(4) If the claimant was constructively dismissed, was the dismissal for the potentially fair reason of “some other substantial reason” as per Section 98(1) (b) ERA 1996 on account of a breakdown of trust between the respondent and the claimant due to the claimant’s performance and/or conduct.

(5) If the claimant was dismissed for some other substantial reason, was his dismissal fair within the meaning of Section 98(4) ERA 1996.

(6) If the claimant was unfairly dismissed, should any compensation be reduced on account of:- (a) Contributory conduct; (b) Polkey; (c) Otherwise, on a just and equitable basis.

(7) Has the claimant failed to mitigate his losses;

(8) If the claimant establishes unfair dismissal, did the respondent unreasonably refuse to hear the claimant’s written grievance as alleged: (a) If so, has there been a breach of ACAS code of practice: (1) So as to justify any uplift pursuant to Section 207 Trade Union and Labour Relations (Consolidation) Act 1992; (2) If so, what uplift should be awarded to the claimant?

[2]It was agreed that the Tribunal would first hear evidence and submissions and determine liability before going on to deal with remedy if appropriate.

Facts

[3]I make findings of fact on matters which are relevant to the issues I have to decide. There were some areas of dispute on facts where it was not necessary for me to make a finding of fact in order to make a decision on the relevant issues. I have referred to some of these disputes of fact in the details which follow, indicating where I did not consider it necessary to make a finding of fact.

[4]The respondent is a company in the business of the production and sale to retail and trade customers of paving and aggregate materials. It has sites in Pott Shrigley, where the claimant was based, and in Bristol, where the directors are based.

[5]On 13 October 2008, the claimant began employment with Warr Brothers as a Factory Labourer. Around four months later, he became a HGV Driver and was later promoted to be Assistant Manager of the site. The claimant’s employment transferred to the employment of the respondent by operation of TUPE in May 2012.

[6]In May 2015, Simon Lakin, the Branch Manager at Pott Shrigley, left. Another person was appointed but left soon afterwards and the claimant was then asked to act as Interim Branch Manager for an additional payment of £100 per week.

[7]An email from the claimant dated 29 June 2015 indicates that he had had a discussion with Ian Elston, the Managing Director, about performance issues. The claimant was asking for a pay increase if he was to continue as Assistant Manager and running production.

[8]Some time in the period prior to October 2015, the claimant was appointed as Branch Manager. The paperwork for this was issued in October 2015. This set out that the claimant reported to the Managing Director (Ian Elston) or to Dean Russell, the General Manager, in the absence of the Managing Director.

[9]In February 2016, the claimant tried to achieve an increase in his salary rather than receiving a bonus. He told Ian Elston that he had been offered another job with a starting salary of £36,000. He now accepts this information was not correct; the claimant had not been offered any other employment at this time. Mr Elston agreed that the claimant’s salary should increase by £1,300 to £30,000 per annum.

[10]On 21 July 2016, the claimant was given a verbal warning from Dean Russell, the General Manager, about a failure to record production on three Saturdays. The claimant accepted that he had to take responsibility for what he described as an oversight. However, in an email to Ian Elston dated 22 July 2016, he expressed concern about the way that this had been handled, saying that this had completely demoralised him. Mr Elston replied to the claimant on 24 July. His email included a recognition that “from the word go we both appreciated you would be on a long learning curve at Macclesfield with which you still have my 100% backing. Your commitment does not go unnoticed at board level, we don’t just comment on the negative aspects. This measure is intended to give you a “jolt” into senior management”.

[11]Mr Elston confirmed, in evidence, that this verbal warning was the only warning the claimant received during the 6 months he was managed by Mr Elston.

[12]On 13 September 2016, the claimant learned that the respondent was employing a General Manager Martin Kennerley to a management role based at Pott Shrigley (which those at the respondent referred to as Manchester). The claimant spoke to Dean Russell about this. In that conversation, the claimant was offered a leaving package if he wished to leave.

[13]The claimant wrote to Ian Elston with a formal grievance on 14 September 2016. The claimant complained that the way things had been done was improper and unprofessional. He wrote that Dean had informed him that they wished the claimant to stay but wrote that this was not the feeling he was getting or seeing so far. He wrote that he was unsure of his future in Manchester mainly because of the lack of clarity. After the claimant and Ian Elston spoke, the claimant confirmed that there was no need for a formal grievance meeting.

[14]Martin Kennerley became the most senior manager at Pott Shrigley and the claimant thereafter reported to him rather than to Ian Elston or Dean Russell. The claimant gave evidence that he remained with the respondent at this time because of his financial commitments and because he did not have another job to go to.

[15]On or before 18 October 2016, the claimant informed Martin Kennerley that he had received a job offer but had decided to stay with the respondent. I accept on the basis of the evidence produced by the claimant that he had received an offer at this time from another company. The claimant’s evidence is that the salary offered was significantly less than that with the respondent. Martin Kennerley recorded, in an email dated 19 October 2016, that he was pleased the claimant had decided to stay with the respondent.

[16]In oral evidence, Mr Kennerley told the Tribunal that it was almost a daily event that the claimant would say he was leaving and had got another job but then said he would stay. This evidence was not included in Mr Kennerley’s witness statement. Mr Kennerley has not satisfied me that this was the case; it appears it may be an embellishment of Mr Kennerley’s evidence, I will turn later to Mr Kennerley’s evidence of threats by the claimant to leave from 2 February 2017 onwards.

[17]Mr Kennerley drafted a new job description for the claimant which he provided to him on 19 October 2016. In the job description, the claimant’s job is given the title of “Site Manager”. The job purpose is set out as follows: “To manage the “production” and “yard” areas and all direct staff. To ensure the smooth running of the production process and stock accuracy. To ensure that all products are produced to the company’s specifications. All targets and deadlines are met to achieve the customer orders and the company’s financial budgets. To ensure that all direct staff comply with the company’s Health and Safety procedures.” There is then a list of key responsibilities.

[18]I find that the appointment of Mr Kennerley did result in some changes to the claimant’s responsibilities. It is common ground that the claimant no longer attended senior management meetings, which were now attended by Mr Kennerley. Whilst I accept that Mr Kennerley was brought in to increase sales through growth and to relieve the directors and General Manager from the time they were devoting to supporting and managing the claimant, it seems likely to me that there were some other responsibilities previously held by the claimant which were taken over by Mr Kennerley. It is not necessary for me to find exactly in what ways the claimant’s responsibilities were changed since he does not rely on this for his complaint of constructive unfair dismissal, however, it is clear that there was a loss of status for the claimant in that he was no longer the most senior person at Pott Shrigley.

[19]It is clear from the documents that Mr Kennerley considered that the claimant needed a lot of detailed supervision to ensure that he carried out his duties effectively. Mr Kennerley issued detailed “to do” lists to the claimant. The claimant has complained in evidence that these were difficult to follow and sometimes impossible to achieve. It is not necessary for me to make a finding if this is the case but I note that the claimant did not provide specific examples of tasks given which were unachievable and he made no complaint about this at the time. The claimant said in oral evidence that Mr Kennerley had told him that he should not raise any grievance but it is not necessary for me to make a finding as to whether this was the case. It is clear from notes of a discussion on 15 November 2016, which the claimant accepts to be accurate, that Mr Kennerley had concerns about the claimant’s performance. Mr Kennerley considers that he was always positive and supportive of the claimant. However, he accepts that he told the claimant at one stage that the claimant could not “organise a piss up in a brewery”. I find that this type of comment, together with Mr Kennerley’s use of words in capitals, exclamation marks and multiple question marks in correspondence, did not make the claimant feel that Mr Kennerley was positive and supportive.

[20]In an email dated 16 November from Martin Kennerley to Ian Elston, Mr Kennerley wrote: “Regarding Rick, from numerous discussions you had with me I knew what to expect and I am not surprised, I think Rick’s heart is in the right place and he has the ability to be a good manager, however there are lots of areas he must improve on before this happens”.

[21]On 25 November 2016, Mr Kennerley wrote to the claimant about factory doors being wide open when he arrived in the morning. There is a dispute as to whether the claimant was responsible for this and as to whether he had responded to this email. It is not necessary for me to make a finding about this and I do not do so. No disciplinary action was taken.

[22]On 29 November 2016, Mr Kennerley did a site audit and sent the claimant an email with various matters to address. There is a dispute as to whether Mr Kennerley said to the claimant that the respondent may have to go to a Tribunal to get rid of people but that was the pain they had to go through to push the business forward. The claimant says Mr Kennerley said this and Mr Kennerley denies this. It is not necessary for me to make a decision as to whether this was said and I do not do so.

[23]On 15 December 2016, Mr Kennerley sent to the claimant details of a management course. There is a dispute as to whether the claimant responded. The claimant says he did and requested the email trail in disclosure, to which the respondent replied that there was no such trail. It is not necessary for me to decide whether the claimant responded positively to the information about the course and I do not do so.

[24]On 21 December 2016, there was email correspondence between the claimant and Ian Elston. The claimant asked Ian Elston whether he was eligible for a bonus on the basis that they had done the original sales targets that the claimant had forecast that time the previous year. Mr Elston replied that this was unlikely due to production, stock and staffing issues they had had for most of the year. The claimant responded on 22 December saying he took on board Ian Elston’s comments and wrote that he felt that Manchester was now receiving the support that it needed and “I am playing a major part in the changes all for the betterment of the site and pushing the firm forward”. Ian Elston replied, assuring the claimant that Macclesfield always received full support from him and the rest of the Bristol team.

[25]On 23 December 2016, there was a discussion between Mr Kennerley and the claimant about a failure to follow new purchasing procedure. A form headed “Confirmation of Informal Chat” is included in the bundle, however this is not signed by Mr Kennerley or the claimant. The claimant says he never received this form. I find, on a balance of probabilities, that the claimant was not given this form. If he had been, I consider it would have been signed, as was the confirmation of the verbal warning given to him previously by Dean Russell.

[26]On 30 January 2017, the production supervisor, Sam Dacey handed in his notice. Mr Dacey stated his intention to work his two weeks’ notice. However, on 2 February, Mr Dacey walked off site after Mr Kennerley spoke to him about demotivating and negatively affecting the workforce. After speaking to Head Office, who asked him to calm down the situation, Mr Kennerley asked Mr Dacey to return to work and, for the remainder of his notice period, he worked with Mr Kennerley.

[27]In an email dated 30 January 2017 to Julia Russell, who dealt with HR matters, Mr Kennerley informed her of Sam Dacey’s resignation and of another employee who had a suspected broken ankle. He wrote that, after speaking with Ian (presumably the claimant) he had 3 recruitment agencies on the case and was confident they would have replacements in place shortly. Mr Kennerley confirmed in evidence that the contact with agencies he was referring to in this email included in relation to a replacement for Sam Dacey.

[28]On 2 February 2017, Mr Kennerley says he had a meeting with the claimant. He has produced handwritten notes in his diary and typed notes of this meeting. The claimant says that there was no such meeting and the notes are a fabrication. Amongst other things which Mr Kennerley says were discussed, was that the claimant told him that he did not want responsibility for production following the departure of Sam Dacey. The claimant disputes he said this.

[29]There is also a dispute as to whether a meeting took place on 8 February 2017. Again, Mr Kennerley has produced handwritten notes from his diary and typed notes of the meeting. The claimant says no such meeting took place and the notes are a fabrication.

[30]Mr Kennerley gives the same explanation for the notes of the meetings of 2 and 8 February 2017, so I deal with matters relevant to the authenticity of the records of both alleged meetings together. From the properties of the typed documents, it is apparent that the typed notes were created on 7 March 2017. It appears from the correspondence about disclosure that the typed notes were disclosed before the handwritten diary entries; the diary entries were only provided after a further request was made, at the same time as a request was made for the electronic file containing the documents which were the typed notes of conversations purported to have taken place on 2 and 8 February 2017. Mr Kennerley gave evidence that most of his notes go into his diary but some go onto his PC. He said initially in evidence, during cross examination, that, when he knew the clamant had resigned, he thought it best to computerise his notes. In answer to my questions, Mr Kennerley said that the handwritten notes of the meetings on 2 and 8 February were probably written in his diary on the day of the relevant meeting. He confirmed his evidence that, when the claimant resigned, he thought it best to computerise his notes. When I reminded Mr Kennerley that the claimant had resigned on 10 March 2017, and questioned why the computerised notes had been created on 7 March 2017, Mr Kennerley said that this was because he could see the way things were heading; he thought he had better prepare himself for the inevitable. He said he thought a claim would be made or the claimant would not come back. He said there was no particular relevance in the notes having been made on 7 March; they could have been made on 6 March or 8 March, but they were made after the claimant left. I noted that the claimant was on sick leave at this time and asked why Mr Kennerley thought he would not return. Mr Kennerley said he could not say that the claimant would not return. He thought he should put the paperwork trail in order. When I asked why he needed typed notes since he had already got detailed notes in his diary, he said he thought it was more professional to do that than scribbled notes. I note that Mr Kennerley’s handwriting in the diary notes is admirably clear.

[31]During the course of the hearing, Mr Kennerley produced his original diary for 2017 at my request. The diary contains no other similarly detailed notes of meetings to those in the diary for the alleged meetings on 2 and 8 February 2017. I note that there is only a brief handwritten note in Mr Kennerley’s diary about a meeting which it is agreed took place with the claimant on 22 February 2017 with nothing like the level of detail recorded for 2 and 8 February. I have found that the typed points were, as Mr Kennerley said, points prepared in advance for discussion on 22 February 2017 rather than notes of the meeting so Mr Kennerley did not make a note of the meeting on his computer in preference to recording the meeting in detail in his diary; there is no detailed note of the meeting.

[32]I noted that there had been an alteration to the time given in an entry for 8 February for a collection from Wilmslow since the relevant page of the diary had been copied and included in the bundle. Mr Kennerley accepted that he had changed the time in the entry since providing diary entries by way of disclosure. He said he did this to remind himself that they had gone late to collect the furniture (which he said was because of the meeting with the claimant), in case anyone asked him what time they had gone.

[33]As I note later in these findings of fact, on 4 March 2017, the claimant looked through Mr Kennerley’s diary. He photocopied an entry for 1 March 2017. The claimant gave evidence that, as at 4 March 2017, the detailed notes of the alleged meetings with him on 2 and 8 February 2017 were not in the diary.

[34]As noted later in these findings of fact, an email sent by Mr Kennerley to the claimant on 3 February 2017 made no reference to the meeting Mr Kennerley says took place on 2 February and, in particular, no reference to the claimant having said that he did not want responsibility for production following the departure of Sam Dacey, although the email states that Mr Kennerley wants the claimant to focus on production over the next month.

[35]I find, on a balance of probabilities, that the handwritten diary notes purporting to be notes of meetings on 2 and 8 February 2017 are not contemporaneous or near contemporaneous notes of discussions with the claimant on those dates. It appears to me more likely than not that these notes were written into the diary at a later date, some time after Mr Kennerley produced the typed notes on 7 March 2017. The diary notes were only produced as part of disclosure after a specific request which came at the same time as a request which would reveal that the typed notes had not been created until 7 March 2017. This, by itself, may not have been enough to cast doubt on the authenticity of the handwritten notes; unfortunately, there is often failure to give full disclosure of documents, often for innocent reasons. I do note, however, that the respondent has been advised by solicitors from an early stage so I would expect the obligation of disclosure to have been properly explained to the respondent. The timing of the disclosure of the handwritten notes gave an opportunity for the handwritten notes to be written into the diary after the typed notes had been disclosed. The timing of disclosure of the handwritten notes together with other matters leads me to make the finding, on a balance of probabilities, that they are not authentic contemporaneous notes. Other matters I have relied on in reaching this finding are as follows: the explanation for typing the notes on 7 March 2017 which did not appear convincing; the lack of any comparable detailed notes of meetings in Mr Kennerley’s diary; the lack of reference in the email of 3 February to matters alleged to have been discussed on 2 February; the lack of any subsequent reference in emails to matters alleged to have been discussed on 8 February. I also accept the evidence of the claimant that, when he was looking through Mr Kennerley’s diary on 4 March 2017, the entries about the alleged meetings on 2 and 8 February 2017 were not in the diary but I would have reached the same finding about the authenticity of the diary entries without needing to rely on this evidence from the claimant. The claimant showed himself willing to mislead his employer about having been offered another job to support his argument for a pay increase. This could adversely affect his credibility. However, my finding about the authenticity of the diary entries does not require weight to be placed on any evidence of the claimant which is unsupported by other evidence.

[36]Given my findings about the lack of authenticity of the diary entries as contemporaneous or near contemporaneous records of events on 2 and 8 February 2017, I do not consider that these can be relied on as evidence that meetings with the claimant took place on those dates at which matters recorded in those entries were discussed. The typed notes were not created until around a month after the events they purported to record and after the events of 4 March, when there would have been a motive for Mr Kennerley to create evidence to support a version of events that the respondent had not been advertising the claimant’s job. In these circumstances, I do not consider that the typed notes can be relied on as evidence that meetings with the claimant took place on those dates at which matters recorded in those entries were discussed.

[37]On 2 February 2017, there was a report to senior management headed “brief overview of the first three months with CFL” which appears to have been written by Mr Kennerley. This includes the following comments in relation to staffing: “Although the main troublemakers had been removed before I started, there were still a small number of staff that didn’t want the site to improve and resisted change at every opportunity, this issue has now been addressed. The site has struggled to attract the right calibre of employee and when it did they didn’t stay long for various reasons. We now have adverts in place and we currently have the correct number of men, we are now focused on improving working conditions, organisation, moral [sic] and the way these men are managed”.

[38]On 3 February 2017, Mr Kennerley sent an email to the claimant. Mr Kennerley began by expressing his gratitude to the claimant for his “hard work, commitment and support over the last three days”. He then set out that he needed the claimant to focus on production over the next month and set out a number of matters he needed to discuss with the claimant. There is no reference in this email to the claimant having said, on 2 February, that he did not want responsibility for production and no other mention of a meeting on 2 February; there is no mention of the claimant being asked to look out for a new Production Supervisor which Mr Kennerley says was discussed on 2 February. I find, on a balance of probabilities, that the claimant did not say he did not want the responsibility of production.

[39]Mr Kennerley says there was a further meeting on 8 February 2017. As for the meeting on 2 February 2017, the claimant denies that this took place and challenges the authenticity of the typed and handwritten note of the meeting.

[40]Mr Kennerley says, and the claimant disputes, that the claimant said on 8 February that he had another job offer and was going to leave and that they agreed that they should bring in another manager/supervisor to look after production so the claimant could concentrate on other parts of the business. I have found that the notes of the alleged meeting on 8 February 2017 cannot be relied upon. I find, on a balance of probabilities, that the claimant did not say he was going to leave and they did not discuss bringing in another manager/supervisor to look after production so the claimant could concentrate on other parts of the business.

[41]The claimant relies, in part, in challenging the authenticity of the matters recorded in the notes purporting to be a record of matters discussed on 8 February on a reference to the claimant saying that he wanted Sam Dacey removed from site because he was disruptive and felt he could manage the men better with Sam not there. The claimant says this shows the meeting did not take place because this matter had already been dealt with. However, Mr Kennerley gives evidence that this related to Mr Dacey having been re-instated on the 7 February. This point could be consistent with Mr Kennerley’s explanation and, it appears from the documents that Mr Dacey did return to site, and, therefore, this point does not assist me in determining that the authenticity of what is recorded. However, for reasons previously given, I have found that the notes purporting to be of matters discussed on 8 February 2017 is not reliable.

[42]On 17 February 2017, Mr Kennerley wrote to the claimant about various things which needed to be done. There was nothing recorded in this email, nor in any other email, about there having been an agreement that he should look for another manager/supervisor.

[43]In Mr Kennerley’s diary for 21 February he wrote “Agency Prod Manager”. Mr Kennerley says this was a reminder to himself to talk to an agency about a potential vacancy for a production manager.

[44]It is common ground that there was a meeting between the claimant and Mr Kennerley on 22 February 2017, although the claimant does not agree as to what was said at this meeting. There are typed points relating to the meeting which the properties of the document show were created at 8.24 on 22 February 2017 and last modified on 20 June 2017. Mr Kennerley said these were points prepared in advance of the meeting to discuss with the claimant who was returning from sickness absence. The typed points are consistent with them being points for discussion rather than notes of a meeting and I find that this was the case.

[45]In his diary entry for 22 February 2017, Mr Kennerley records “discussed with Rick about his absence and his attitude, Rick said he is leaving anyway”. Mr Kennerley says there was a discussion about getting in a Production Manager/Supervisor and contacting a recruitment agency to recruit a Production Manager/Supervisor and that the claimant said he would leave in April if he did not get a bonus. There are no notes of these matters being discussed and the claimant disputes that these matters were discussed. The typed points for discussion prepared before the meeting do not include a proposed discussion about getting in a Production Manager/Supervisor and contacting a recruitment agency about this. From the email Mr Kennerley sent to Julia Russell on 30 January 2017, it appears that Mr Kennerley had, by that stage, spoken to the claimant and contacted 3 recruitment agencies about seeking a replacement for the production supervisor, Sam Dacey.

[46]Martin Kennerley wrote to the claimant on 22 February 2017 with a list of improvements and deadlines to be achieved. Although Mr Kennerley refers in this email to the improvements and deadlines having been discussed, he makes no reference to a discussion about getting in a Production Manager/Supervisor and contacting a recruitment agency to recruit a Production Manager/Supervisor or to the claimant threatening to leave.

[47]I find, on a balance of probabilities, that Mr Kennerley did not discuss with the claimant on 22 February 2017 getting in a Production Manager/Supervisor and contacting a recruitment agency to recruit a Production Manager/Supervisor. There is no note of this being a point for discussion in the notes Mr Kennerley had prepared in advance of the meeting. Mr Kennerley and the claimant had already spoken about replacing Sam Dacey as production supervisor and agencies had been contacted on 30 January 2017. There is no contemporaneous note of this discussion. If the diary note is contemporaneous, this makes no mention of this discussion.

[48]I find, on a balance of probabilities, that the claimant did not say on 22 February 2017 that he was intending to leave if he was not paid a bonus in April. On the basis of his actions on 4 March 2017, he was clearly very upset at the prospect of losing his job. I have considered the possibility that he did say he was intending to leave, but was not a serious intention. The claimant had once misled Mr Elston about having been offered another job in order to secure a pay increase. However, the claimant was not in the midst of any such negotiations in February 2017. He had asked about a bonus in December 2016 but appears, from the email correspondence, to have accepted Mr Elston’s reasons as to why this was unlikely. I do not accept Mr Kennerley’s evidence that the claimant said at this time that he had been offered a job by a Huws Gray branch at Stockport; I find that the conversation about a job offer from Huws Gray took place in October 2016 when the claimant did have such a job offer and told Mr Kennerley about it but said he had decided not to accept the offer. If the claimant had made a serious threat to leave, I find it surprising that there has been no correspondence between Mr Kennerley and Julia Russell about this, as there was correspondence about other HR matters. Even if I had found that the claimant had said that he was intending to leave in April if he did not get his bonus, this would not affect my conclusions as to whether the respondent was in repudiatory breach of contract by its subsequent actions.

[49]There were further emails between the claimant and Mr Kennerley in the period 23 to 24 February about other matters to be dealt with.

[50]On 25 February 2017, Mr Kennerley emailed Andy Nuttall, who I was told is an employee of a recruitment agency, Best Connections Limited. Mr Kennerley wrote “we have a vacancy for a manager that I would like to discuss with you, could you call in to discuss the role and your charges and terms and conditions ASAP. This role is highly confidential”.

[51]There is an entry in Mr Kennerley’s diary for 1 March for a call with Andy Nuttall.

[52]Mr Kennerley says that the agency asked for a job description for the role and he sent them the job description which then appeared in an advert on 4 March. The job purpose is identical to that in the claimant’s job description and the responsibilities have only minor variations from those in the claimant’s job description. No correspondence sending this to the agency has been included in the bundle. Mr Kennerley’s evidence is that he sent this for discussion purposes and he did not authorise any advert.

[53]On 4 March 2017, the recruitment agency advertised a position, writing that: “Our client in Macclesfield is looking for an experienced Production Manager on a permanent basis to join their existing team due to continued growth”. As noted above, the job purpose in the advert is identical to that in the claimant’s job description and the responsibilities have only minor variations from those in the claimant’s job description. The claimant saw this advert. The claimant says now that a colleague, who was not working that day, came to the site and told him about the advert. The claimant says he did not reveal to the respondent that it was a colleague who told him about this since the colleague did not want his name revealed and the claimant later wrote that it was a visitor to the site who had told him this. The claimant says, and I accept that he believed, that it was his job which was being advertised; the belief is consistent with the way the claimant then responded.

[54]The claimant phoned Martin Kennerley about the advert. Mr Kennerley said he did not know anything about the advert.

[55]In his witness statement, Mr Kennerley said he told the claimant that, if the advert was for their site, then it would be for the Production Manager/Supervisor role that they had discussed and that he was unable to find anybody to step up to that role. However, Mr Kennerley accepted in oral evidence that he did not tell the claimant that he had spoken to a recruitment agency and had sent through an amended version of the claimant’s job description. The claimant asked if he should worry and start looking for another job. Mr Kennerley told him not to worry. Mr Kennerley said in evidence that he said something along the lines of that the advert could not be for our company. The claimant said that Mr Kennerley said that it must be something to do with Bristol. Mr Kennerley denies this. However, it is apparent from text messages that the claimant then tried to call directors. I accept this would have been unusual on a Saturday morning.

[56]The claimant spoke to Dean Russell and Paul and Ian Elston. They told him they did not know anything about the advert. The claimant said that Dean Russell advised him to speak to a solicitor. This was not contained in the claimant’s witness statement. However, this would be consistent with texts to Dean Russell on 4 March in the evening “thanks for today”. The claimant did not text any of the other directors with whom he had spoken to say thanks.

[57]It appears that the claimant sought legal advice sometime after 4 March.

[58]After speaking to the directors in Bristol, the claimant texted Martin Kennerley again saying “I’ve spoken with Bristol they haven’t put the job on but it is for here”. This is consistent either with Martin Kennerley having told the claimant that the advert must be something to do with Bristol or the claimant inferring this from Martin Kennerley denying any knowledge of it. I find that Mr Kennerley gave the claimant the impression that he knew nothing about the advert.

[59]On 4 March 2017, the claimant looked through Martin Kennerley’s diary, which was on the desk. The claimant accepts that this was a violation of Martin Kennerley’s privacy. The claimant photocopied an entry for 1 March which he thought was the only relevant entry; this was included in the bundle. The claimant says that the entries about meetings with him on 2 and 8 February were not in the diary on 4 March.

[60]On 6 March 2017, the claimant reported sick. He texted to Martin Kennerley, writing that “since Saturday I have been unable to sleep and have had bouts of sickness I am unwell and I will be unable to attend work today”. He later texted to inform Martin Kennerley that he had been signed off work for a week. Martin Kennerley texted the claimant on 6 March writing “I understand about your condition; do you think it would help to come in and talk about it? I’ll leave it with you but if there is anything I can do please let me know”. I have been shown no other evidence of contact by Mr Kennerley or any other person on behalf of the respondent with the claimant prior to the claimant’s resignation.

[61]On 7 March, Mr Kennerley produced the typed notes of the meetings he says took place on 2 and 8 February.

[62]On 10 March 2017, the claimant resigned. His letter of resignation was handed to Ian Elston. Mr Elston passed this to his sister, Julia Russell, a director, whose responsibilities for the respondent include HR matters. The claimant asserted in his resignation letter that the job advertised was his job. He wrote “I immediately raised this matter with my line manager Mr Kennerley who responded that he did not know anything about it and that Bristol must have advertised it. I contacted Head Office at Bristol (Mr D Russell, Mr P Elston and Mr I Elston) who also denied placing the adverts. My job was advertised by “Best Connections Recruitment Agency” on 2 March 2017. I found out that my line manager Mr Kennerley had a meeting with Mr Nuttall of this agency the previous day. “I am sure you can understand that this incident has left me devastated and unwell. For some time, I have felt very marginalised by the company, including bullied by Mr Kennerley. Mr Kennerley has made numerous comments to me including wanting to bring new staff to the site, unfair comments about my performance including “you could not run a piss up in a brewery” and on one occasion suggested to me that the company “may have to go to a Tribunal to get rid of people that are here but that’s the pain we have got to go through to push the business forward”. It was my belief, prior to Mr Kennerley advertising my job that he wanted to push me out of the company. In response to the humiliating unfair conduct that I have received from my employers set out in this letter, I am resigning from my job. I am required to give four weeks’ notice which will commence 13 March 2017. As you are aware due to this incident I am currently on sick leave. I will forward any further medical certificates required. As stated at the beginning of this correspondence, in addition to this letter being my resignation it is also that of a formal grievance complaint”.

[63]The claimant remained on sick leave during his notice period.

[64]The respondent did not reply to the claimant’s letter of 10 March.

[65]Mr Elston gave evidence that the respondent was 100% keen to keep the claimant; the claimant’s application was not in doubt although there were issues with his performance. He said that going into a busy period without someone with that experience would be kamikaze and that it did hurt them, that season, not having the claimant. Mr Elston agreed that, from the claimant’s resignation letter, and from the respondent’s account, the claimant had got the wrong end of the stick by thinking he was being replaced.

[66]Although the respondent says the claimant was mistaken in believing that it was his job which had been advertised and that he was a valued employee who they did not want to lose, they did not contact him to say that he was mistaken and to ask him to reconsider his resignation. Mr Elston said in evidence that, with hindsight, they should have contacted him and said this was a terrible mistake but they acted on advice.

[67]The respondent never dealt with the claimant’s grievance.

[68]There followed some correspondence in the period 5 – 7 April 2017 between solicitors about whether the claimant was entitled to pay during the notice period: whether the claimant was incapacitated, since he had been seen driving his lorry, and whether the claimant was doing work other than for the respondent during the notice period.

[69]The claimant did some work privately, outside his working hours for the respondent, whilst employed by the company e.g. building patios. There is no suggestion that the claimant was in breach of any obligation to the respondent by doing this work, prior to his notice period.

[70]The claimant has a number of vehicles including a wagon. The claimant’s evidence is that he only drove the wagon for leisure purposes, during his notice period, doing up his house, transporting a summer house for his mother and making sure that the wagon was MOTable. On the basis of tachograph records, the claimant made 12 trips in his wagon during the 4 week notice period, covering a total of 611 km.

[71]On 15 August 2017, Eric Eelloo of the Best Connection Group Limited wrote to Martin Kennerley about the placing of the advert in February 2017. Mr Eelloo had been due to give evidence at this hearing but did not attend due to what we were told was a personal trip to the United States. The claimant and the tribunal were not told that Mr Eelloo was not going to give evidence until the morning of the first day of the final hearing. I refused to allow the witness statement of Mr Eello to be put in evidence but refused an application from the claimant to remove from the bundle the email from Mr Eelloo dated 15 August 2017.

[72]In the email of 15 August, Mr Eelloo wrote “the Best Connection and Concrete Fabrications discussed in February 2017 details for a prospective Production Manager vacancy – this as stated above was on the back of growth expansion and possible restructuring. Best Connection consequently requested a job specification from yourselves and upon receiving this placed an advert on Reed. Please note that we didn’t ask for permission to do this. Me, amongst many other employment businesses don’t ask for permission to place adverts from customers; this is just a common practice on our part to get a feel for the market place, assess what interest is out there, in order to advise our customers accordingly. The advert was “tweaked” a couple of times so as to have no mention of Pott Shrigley, Boland Stone or the market Boland Stone work in (this is so as not to give our competition any indication of who the vacancy was from) and then placed it on the Reed job board.”

[73]It was common ground that March to September is the busiest time of the year for the respondent. Submissions Respondent’s submissions

[74]Mr Allsop provided a written skeleton argument at the start of the hearing. He made oral closing submissions to supplement the written skeleton argument. Mr Allsop made submissions about the credibility of witnesses, submitting that the evidence of Mr Kennerley should be preferred to that of the claimant.

[75]Mr Allsop submitted that it was plain that the respondent did not recruit for the claimant’s job. Mr Kennerley had explained how the job description found its way into the hands of the agency and this was corroborated by the email from Mr Eelloo. The advert did not indicate that the claimant’s role was to be replaced. Mr Allsop questioned why the respondent would recruit for the claimant’s job when March to September was the busiest time of the respondent’s year; Mr Kennerley needed his number two man there.

[76]Mr Allsop submitted that, in relation to the second issue, the allegation that the respondent was untruthfulness in the manner in which they denied all knowledge of advertising the claimant’s job, the focus had to be on what was said and written on 4 March 2017; no other period of time was relevant. The email from Mr Eelloo of 15 August 2017 was clear evidence that the respondent did not know the advert had been placed. Mr Kennerley’s evidence was that there was a potential vacancy and he did not know the agency was going to market the position.

[77]Mr Allsop submitted that, in strict legal terms, the diary entries did not impact on whether there was a breach of contract. They did not go to what happened on 4 March 2017 save that, if they are authentic, they support the respondent’s case. Mr Kennerley had given clear evidence about how the entries came to be created.

[78]Mr Allsop submitted that the second issue came down to diarising a meeting with a recruitment agency and not letting the claimant know about this. This could not be a breach of contract, otherwise it would be an unreasonable fettering of management ability. Mr Allsop submitted that a sense of indignation does not equate to a breach of contract.

[79]Mr Allsop submitted that, if there was a breach of contract, this was not a repudiatory breach of contract. The respondent was keen to keep the claimant on board. Mr Kennerley assured the claimant he had nothing to worry about. By the end of 4 March 2017, Mr Kennerley was keen to bring the claimant in to chat things over. This did not give rise to a situation the claimant can rely on to say he was forced out.

[80]Mr Allsop submitted that the grievance and the way it was dealt with post dated acceptance of the repudiatory breach, if there was one, and did not directly impact on whether there was a breach. He submitted that this was relevant to remedy, if anything.

[81]Mr Allsop submitted that the respondent was truthful about what had happened on 4 March 2017. This would not have resulted in the claimant losing his job. There was no repudiatory breach of contract and the claimant did not resign in response to a repudiatory breach. Claimant’s submissions

[82]Mr Gilbart made oral closing submissions. He agreed that the relevant legal principles were as set out in Mr Allsop’s written skeleton argument.

[83]Mr Gilbart submitted that the claimant was specific as to the breaches relied upon. The focus was on February/March 2017; the background was of limited relevance. The general picture the respondent says it held of the claimant, before Mr Kennerley was appointed, was that the claimant was on a learning curve, committed to the job. The picture changed when Mr Kennerley arrived. He referred to comments made by Mr Kennerley to the claimant and the bewildering lists of tasks sent to the claimant. The appointment of Mr Kennerley, without the claimant’s knowledge, echoed what happened in March 2017.

[84]Mr Gilbart made submissions about the credibility of the claimant, submitting that he was frank and clearly trying to set out what had happened.

[85]Mr Gilbart submitted that Mr Kennerley had tried to fabricate what had taken place on 2 and 8 February 2017. He submitted that, since the second issue involved an allegation that the respondent had been untruthful, it was fundamental that diary entries had been added afterwards for meetings which did not take place.

[86]If Mr Kennerley was right that the claimant had been saying he was going to leave, why was the claimant asking, on 4 March, if he should be worried about his job? The evidence of texts was that the claimant was frantic to speak to someone on 4 March, a Saturday, and that he was not able to sleep over the weekend. This evidence made no sense on the respondent’s case that the claimant was not bothered because he had other work, but made perfect sense on the claimant’s.

[87]Mr Gilbart submitted that there was no question that the resignation was delayed or not in response to this incident; the claimant resigned almost immediately.

[88]Mr Gilbart submitted that it was plainly the claimant’s role which was advertised or so near to it that the claimant would be rendered unrequired. It was not Sam Dacey’s role. Why would Mr Kennerley look at the claimant’s job description and send it to the agency with the job purpose wholly unchanged unless he was recruiting for the claimant’s job. Mr Gilbart submitted that Mr Kennerley’s account of events should be rejected.

[89]Mr Gilbart submitted that the judge should approach the email from Mr Eelloo with significant caution. He was not here to give evidence and should have been. In cross examination, we could have explored what prompted the belated provision of information in August 2017 and other matters. Mr Eelloo did not say that the job description had been provided by Mr Kennerley for discussion, which was Mr Kennerley’s evidence. Mr Eello wrote that they had requested a job specification and, on receiving this, placed an advert. The judge should draw an inference that Mr Kennerley knew the advert was being placed. Mr Kennerly denied, in his call to the claimant, knowledge of the advert. Why did he not say that this was as had been discussed? His reaction at the time was consistent with a man being caught in the act and seeking to distance himself.

[90]Mr Gilbart submitted that the second issue does not necessarily require the tribunal to find that the respondent knew the advert had been placed but the claimant invited the tribunal to make such a finding.

[91]Mr Gilbart submitted that the tribunal could draw support for the claimant’s case from the respondent’s response to his resignation. When faced with a letter from a valued employee making unfounded allegations, on their case, they wholly ignored it. None of the explanations which had been given at the hearing gave a reason why they could not have written back to the claimant saying, why are you upset, you knew we were recruiting. Their failure to respond is consistent with the claimant’s account and not consistent with the respondent’s account.

[92]Mr Gilbart acknowledged that whether there is a repudiatory breach is a high bar but submitted that, if the respondent seeks to recruit for the claimant’s role without telling him and/or in a dishonest manner, there is nakedly a breach of the implied term of mutual trust and confidence. There was no sensible argument that the claimant did not leave in response to the breach or that the claimant delayed too long in terminating the contract.

[93]Mr Gilbart submitted that the evidence did not allow the respondent to maintain a fall back position that, if the claimant was constructively dismissed, it was fair. The respondent’s evidence was that there was no intention that the claimant should leave their employment. They could not argue “some other substantial reason”.

The Law

[94]The law in relation to unfair dismissal is contained in the Employment Rights Act 1996. Section 94(1) of this Act provides that an employee has the right not to be unfairly dismissed by his employer. Section 95(1)(c) provides that an employee is to be regarded as dismissed if “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.”

[95]An employee will be entitled to terminate a contract of employment without notice if the respondent is in fundamental breach of that contract and the employee has not waived the breach or affirmed the contract by their conduct.

[96]An implied term of an employment contract is the term of mutual trust and confidence. This is to the effect that an employer will not, without reasonable or proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee. Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Limited

1981 ICR 666

, said that the tribunal must “look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”

Conclusions

[97]I conclude that the respondent was seeking to recruit for the claimant’s position. Mr Kennerley clearly had concerns about the claimant’s performance. I have found that Mr Kennerley had not been discussing with the claimant getting a production manager/supervisor on 22 February 2017. They had had a discussion on 30 January 2017 when the production supervisor, Sam Dacey, had handed in his notice, and had contacted recruitment agencies for the purpose of finding a replacement for Sam Dacey on 30 January 2017. I consider that Mr Kennerley’s email of 25 February 2017 to Andy Nuttall, of a recruitment agency, Best Connections Limited, about a “vacancy for a manager”, said to be highly confidential, is more likely to relate to a possible replacement for the claimant than to a further attempt to replace Sam Dacey or to create some new role. When asked for a job specification for the role, Mr Kennerley started with the claimant’s job description, made no change to the job purpose and made some minor changes to other parts. If, as Mr Kennerley alleged, he was sending something for discussion purposes only, it seems unlikely that he would have sent something in this form. No accompanying correspondence to the agency was disclosed so we have no other contemporaneous document which assists us as to the instructions given to the agency. I have viewed the email from Mr Eelloo of 17 August 2017 with some scepticism as to its reliability. It is written months after the events which it seeks to record. Mr Eelloo was not the person with whom Mr Kennerley dealt at the relevant time. Mr Eelloo did not attend to give evidence, although the tribunal and the claimant had been led to believe, until the start of the hearing, that he would be attending, so his evidence could not be tested by cross examination.

[98]The job advertised was so close to the claimant’s job description that it is hard to see what role the claimant would have left to perform if another person was recruited to that post.

[99]The way that Mr Kennerley responded to the claimant’s telephone call on 4 March is more consistent with him being “caught out” than the agency having acted without instructions. Mr Kennerley gave the claimant the impression that he knew nothing about the advert. If he had not given instructions for the advert, and the advert was not for the claimant’s job, a more honest response would have been to say that he had been in touch with an agency about a prospective position but had not given instructions for an advert to be placed and he would find out what had gone wrong and get back to the claimant. Although Mr Kennerley said in his witness statement he told the claimant that, if the advert was for their site, then it would be for the Production Manager/Supervisor role that they had discussed and that he was unable to find anybody to step up to that role, Mr Kennerley accepted in oral evidence that he did not tell the claimant that he had spoken to a recruitment agency and had sent through an amended version of the claimant’s job description. Mr Kennerley said in oral evidence that he said something along the lines of that the advert could not be for our company.

[100]It would not be surprising that the respondent was seeking a replacement for the claimant without having first taken any steps to dismiss the claimant or telling him that they were going to take on someone else to do his job, even if they intended to find him another role. It is common ground that the respondent was just coming into its busiest season. They needed someone in the claimant’s role. It was difficult to recruit staff for the Pott Shrigley site. Mr Kennerley had concerns about the claimant’s competence. Despite these concerns, the respondent would not have wanted to lose the claimant without having a successor lined up.

[101]I conclude, on a balance of probabilities, that the advert was placed with the knowledge of Mr Kennerley and was for the claimant’s job; the respondent was recruiting for the claimant’s job.

[102]I conclude, on a balance of probabilities, that, in the way Mr Kennerley responded to the claimant’s enquiry on 4 March 2017, he acted untruthfully in denying all knowledge of advertising the claimant’s job.

[103]I conclude that, taking these matters together, the respondent was in breach of the implied duty of mutual trust and confidence and that this was a repudiatory breach of contract.

[104]I conclude that the claimant resigned in response to this breach. It is clear from his actions on 4 March 2017 that he was very worried and upset after seeing what he believed to be his job advertised. The response of Mr Kennerley gave him no comfort. He resigned promptly after the breach.

[105]Although the respondent’s actions after the resignation cannot form part of the breach, they are consistent with my conclusions that there was such a breach. If the claimant had been entirely mistaken in thinking that the respondent was advertising his job and the respondent did, in fact, want the claimant to stay, I would have expected a swift response to the claimant’s letter of resignation and grievance, seeking to correct the impression given and to persuade the claimant to retract his resignation. There was no such response, swift or otherwise.

[106]I conclude that the claimant was constructively dismissed.

[107]I conclude that the respondent has not shown a potentially fair reason for the constructive dismissal. Even if there had been such a reason shown, I conclude that they have not acted reasonably in all the circumstances.

[108]I conclude, therefore, that the complaint of constructive unfair dismissal is well founded.