The judgment of the Tribunal is that:(1) The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.(2) The quantification of remedy in relation to the unfair dismissal complaint will be determined at a remedy hearing which will be listed for 1 day on a date to be confirmed to the parties.(3) The complaints of breach of contract and unlawful deduction from wages required determination of the effective date of termination in relation to the unfair dismissal complaint and now that has been identified as 5 July 2024, these two complaints will be determined at the remedy hearing referred to in paragraph (2) above.
REASONS
[1]These proceedings arose from events that happened during June and July 2024 when the claimant initially gave notice of his resignation as a security guard to his employer. This happened because of issues that occurred previously at his workplace. He was a security guard who was allocated to work at a Wirral shopping centre and where day to day management and direction happened from the centre management who were employed by a different company not connected with the respondent.[2]The respondent appeared unwilling to accept the claimant’s resignation and attempts were made to engage with the shopping centre and the claimant to see if a resolution could be found. The claimant eventually found out in July 2024 that the shopping centre management did not want the claimant to return to work there, and he was informed on 5 July 2024 that his resignation of 11 June 2024 had been accepted.[3]The claimant began early conciliation on 19 August 2024, and an early conciliation certificate was issued on the same day. A claim form was presented with the Tribunal on 3 September 2024 and claims of unfair dismissal, breach of contract and unlawful deduction from wages were identified. The claimant ticked a box within the form suggesting detriments arising from protected disclosures (whistleblowing), but no obvious particulars were included within section 8.2 of the claim form, where background information is requested.[4]The respondent presented a response and grounds of resistance on 4 October 2024 and resisted the claim, arguing that the claimant resigned without having reasonable grounds for doing so to support a constructive unfair dismissal claim or alternatively, he was fairly dismissed by some other substantial reason. This was because the client shopping centre management did not want the claimant to continue working there.[5]Case management was initially before Judge Kenward on 4 March 2025. He listed the case for this final hearing, identified a preliminary list of issues, made orders for disclosure and exchange of witness evidence and listed the case for a further preliminary hearing so that the question of a whistleblowing complaint could be addressed.[6]Judge Barker heard the next preliminary hearing on 5 June 2025 and during a complicated and lengthy discussion with the parties, concluded that no whistleblowing complaint could be identified from the initial claim form, that the claimant would have been able to bring such a claim when the claim form was presented and that the consequential application to amend would be refused.
Issues
[7]The issues which the Tribunal has been asked to consider could be found in the list of issues annexed to Judge Kenward’s Note of Preliminary Hearing, with the whistleblowing issues having been discounted following Judge Barker’s decision. Essentially, they involved the following questions: Constructive unfair dismissal/ordinary unfair dismissal2.1 How was the claimant’s contract of employment terminated?2.2 What was the date of termination of the claimant’s contract of employment?2.3 Was the claimant dismissed?2.3.1 did the respondent do the things set out in the claimant’s letter of resignation? (Note: the claimant’s letter of resignation was dated 11 and/or 12 June 2024)2.3.2 did that breach the implied term of trust and confidence?2.3.3 did that breach any other term of the contract of employment?2.3.4 was the breach a fundamental one?2.3.5 did the claimant resign in response to that breach?2.3.6 did the claimant affirm the contract before resigning?2.4 if the claimant was dismissed, what was the reason or principal reason for the dismissal? Note: the respondent relies upon some other substantial reason2.5 was it a potentially fair reason?2.6 did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?2.7 if not, then the claimant will have been unfairly dismissed? Remedy for unfair dismissal 3. This will determined at the remedy hearing Wrongful dismissal/Notice pay4.1 what was the claimant’s notice period?4.2 did the respondent terminate the claimant’s contract and/or constructively dismiss the claimant?4.3 If so, was the claimant paid for that notice period?4.4 If not, was the claimant guilty Of gross misconduct and/or did the claimant do something so serious that the respondent was entitled to dismiss without notice?4.5 If not, was the respondent otherwise contractually entitled not to pay the claimant for his notice period? Remedy for wrongful dismissal 5.1 This will be determined at the remedy hearing [Protected disclosure 6.1 Not accepted as a claim following preliminary hearing before Judge Barker.] [Detriments arising from the making of a protected disclosure 7.1 Not accepted as a claim following preliminary hearing before Judge Barker.] [Remedy for detriments 8.1 Not accepted as a claim following preliminary hearing before Judge Barker.] Unauthorised deductions from wages9.1 Whether wages paid to the claimant lost than the wages he should have been paid?9.2 was any deduction required or authorised by statute?9.3 was any deduction required or authorised by a written term of contract?9.4 Did the claimant have a copy of the contract or written notice of the contract term before the deduction was made?9.5 did the claimant agree in writing to the deduction before it was made?9.6 if not, insofar as any deduction was not required or authorised or agreed, how much is the claimant owed?9.7 for what period can any payment be made for any unlawful deductions from wages?9.8 did the ACAS code of practise on disciplinary and grievanceprocedures apply?9.9 did the respondent or the claimant unreasonably fail to comply with it?9.10 is it just and equitable to increase or decrease any word payable to the claimant?9.11 if so, by what proportion, up to 25%? Evidence used[8]The claimant relied upon the following witness evidence: a) His own witness statement b) The statement of his wife, Mrs G Freedman.[9]The respondent relied upon the following witness evidence: a) Gordon Smith (manager of Cherry Tree Shopping Centre, Liscard) b) John Hayes (respondent manager responsible for the claimant.[10]Documents were contained in a bundle produced by the respondent and a second bundle produce by the claimant. Disclosure and bundle preparation and been impeded by various issues between the parties but following an initial discussion on Day 1 the respondent produced a bundle of 228 pages, and the claimant produced a separate bundle which it was agreed could be used and which comprised of 110 pages.[11]Difficulties appear to have arisen between the parties during the proceedings, and this meant that ongoing matters delayed the hearing of evidence on Day 1 of the final hearing while these were resolved[12]The respondent had made an application for strike out of the claim shortly before the final hearing and this was to be considered by me at 10am on Day 1. This related to alleged intimidation by the claimant towards Gordon Smith before the final hearing took place. Both sides had produced their grounds of application and reply as appropriate and witness evidence in support of their respective positions.[13]I was keen to seek a pragmatic solution and applying the overriding objective, noting that the parties were actually ready to proceed in terms of the available documents and witness evidence. I considered what was in the interests of justice and the claimant agreed that he would attend the hearing remotely by CVP elsewhere within the Tribunal building while Mr Smith gave his evidence in support of the respondent’s case.[14]I understand that Mr Smith informed Mr Walker that he was initially happy with this arrangement. He confirmed to him that he would attend on Day 2 of the hearing at 2pm. However, before this could happen Mr Walker informed me that Mr Smith’s employer’s solicitors forbade him from giving evidence. Mr Walker did not seek a witness order and having seen the case develop during the previous 24 hours; it became clear that Mr Smith’s evidence was unlikely to be of significant evidential value to my determination of the issues. Consequently, the only oral evidence that I heard in support of the respondent’s case was from the claimant’s line manager Mr Hayes.[15]Naturally, while I took note of the various written statements within the bundles (where they had been signed and dated by the witness), I concluded that they had limited evidential value given that the representatives for each side could not examine them under oath.
Findings of fact
[16]The parties should note that the Tribunal’s findings of fact do not seek to deal with every point where the parties disagree, simply what is relevant to the issues which the Tribunal is being asked to consider. If the discussion of an incident or point is not referred to within these findings, it does not mean that it has not been considered by the Tribunal, simply that it is not relevant to the issues and the findings that we are required to make.[17]In terms of the findings that we make, the Tribunal has reached its decision on what it considers to be on balance of probabilities the most likely way/reason in which an incident arose. The respondent[18]The respondent is a company who is responsible for the provision of security services in a variety of locations across the UK. At the material time in this case, they provided security services to the Cherry Tree Shopping Centre (‘Cherry Tree’), Liscard, Wirral by way of a subcontract. The claimant[19]The claimant was employed as a Security Industry Authority (‘SIA’) licenced security officer at the Cherry Tree and began working there from 12 December 2020. At the time his employment ended in 2024, he had worked there for more than 3 years. He was at no stage employed by the Cherry Tree (who were managed by a company called Colliers), and at all material times, his employer was the respondent company. Relevant background to the claim[20]Having considered the evidence during this final hearing, it became clear to me that the focus of my findings of fact should be the events of June and July 2024 which began with the claimant’s resignation and concluded with the respondent’s subsequent communication that the employment relationship would no longer continue, meaning that the resignation of 11 June 2024 had been accepted.[21]I accepted that given the nature of the Cherry Tree’s operations and its location near the local high street, management of shop theft and anti-social behaviour was a significant and ongoing matter. At the relevant time to which this case relates, this involved the use of subcontracted security officers employed by the respondent. Additionally, Cherry Tree management relied upon good relations with the local officers from Merseyside Police who would enter the centre from time to time.[22]It was expected that security officers would work with and cooperate with police officers and not obstruct them in their duties, taking reasonable direction from Cherry Tree management. The claimant’s line manager John Hayes was not based at the Cherry Tree and while they kept in touch, I accepted that on a day-to-day basis local Cherry Tree management would have some responsibility over the claimant’s activities.[23]I accepted that for most of the claimant’s employment, he had a good relationship with both Mr Hayes and local management at the Cherry Tree. However, during 2024 the arrival of Gordon Jones as Cherry Tree manager and changes to the police officers routinely attending the shopping centre, caused the claimant a great deal of unhappiness.[24]Incidents arose in February and March 2024 regarding the claimant’s activation of his body worn camera when engaging with police officers visiting the Cherry Tree and the claimant believing he had been assaulted when a police officer attempted to turn his body worn camera off. This resulted in the police officers speaking with Mr Jones as Cherry Tree manager and asking that the claimant did not attend a forthcoming meeting organised by the police in a local baker’s shop. This was requested because of their concerns of unauthorised filming taking place.[25]The claimant was unhappy with this matter and raised concerns with Mr Hayes as his line manager. However, apart from informal discussions taking place between Mr Hayes and the claimant and in turn between Mr Hayes and Mr Smith, nothing of significance took place after these events. Mr Hayes gave vague and unreliable oral evidence concerning these events and was unwilling to commit to specific dates. I accepted that he was trying to do his best, in an informal way, to keep the claimant’s relationship with Mr Smith and Cherry Tree staff on good terms. However, despite these efforts, I found that the claimant continued to have an uneasy relationship with Mr Smith and some of the local police officers attending the Cherry Tree.[26]Events then developed in June 2024, when the claimant had a health emergency where he needed to leave work and attend the local NHS ‘Walk In Centre’. It was situated close to the Cherry Tree and involved only a short walk but would require the claimant to leave his place of work. Mr Hayes messaged the claimant on 10 June 2024 observing that he had left work on the previous Thursday and asked if he notified the Cherry Tree or the respondent’s Control before he left. He also mentioned that the Cherry Tree management wanted to have a meeting to discuss working practices but reassured the claimant by saying it was not a disciplinary investigation.[27]The claimant replied and said he looked forward to the meeting. In relation to the question regarding his leaving work on the Thursday, he replied saying that the client’s managers were busy. He said that he called Control, but they were busy and radioed in locally to colleagues to say that he was leaving the site because he had become ‘severely unwell’. He added that he informed a colleague called Phil in the Cherry Tree.[28]Further messages were also exchanged between Mr Hayes and the claimant regarding the proposed meeting with Cherry Tree management. The claimant had clearly become anxious with the screen shots of the messaging exchange revealing a ‘window’ confirming that a 24 minute voice call had taken place between him and Mr Hayes. I did not hear any oral evidence from either Mr Hayes or the claimant concerning these extracts from the messaging screen shots or indeed the call itself. However, considering the available evidence, on balance I accepted that Cherry Tree management wanted to agree a form of best practice at the shopping centre and that everyone could well together. The extracts concluded with the claimant appearing content that any issues could be sorted. The claimant’s resignation correspondence[29]The next day on 11 June 2024, the claimant sent an email to the respondent’s Human Resources group email, addressed to Mr Hayes and ‘who this may concern’. He opened by saying: ‘I am writing to inform you that I am resigning from my position as a Security Officer with Securi Group site Cherry Tree Shopping Centre with immediate effect. ‘Please accept this letter as formal notice of my resignation and termination of my employment contract with you.’ It went on to attribute this decision to bullying and harassment in the workplace from the centre manager and third-party company and removal of duties without good reason notice of investigation. He asserted that this behaviour was a fundamental breach of the employment contract and a breach of the duty of trust and confidence.[30]Mr Hayes acknowledged the email and told the claimant that he would not be accepting his resignation and met with the claimant at his home address on 12 June 2024 to discuss what the problems were. On balance and based upon the available evidence, Mr Hayes discussed matters with the claimant but did not accept the resignation. The claimant confirmed in evidence that he knew he could still assert his resignation regardless of what Mr Hayes said, but that he did not. Instead, he was asked by Mr Hayes to provide (as he put it), ‘meat on the bones’ regarding the issues identified in the short original email so the matter could be considered further. This claimant did and in a letter incorrectly dated 11 June 2024 (it should have been dated 12 June 2024), he explained why he was resigning over almost five pages.[31]Essentially, the letter referred to the previous issues with Mr Smith and the local police officers. This involved being told not to record the police when visiting using his bodycam and difficulties between Mr Smith and him regarding the extent to which he could regulate the claimant’s activities as a security guard employed by the respondent rather than the Cherry Tree.[32]The respondent did not act upon this letter. Mr Hayes’ evidence was that he liked the claimant, thought he was a good security guard, and he wanted to resolve matters with Mr Smith and the Cherry Tree more generally. No evidence was provided from senior management or the respondent’s HR team to support their position regarding the resignation emails. However, based upon Mr Hayes’ limited evidence; I concluded on balance that the claimant’s letters were at this stage being treated by the respondent as grievances. This meant that no action was being taken by the respondent to act upon the notice of resignation. As explained above, the claimant confirmed that he was not pressing for his resignation to proceed following his meeting with Mr Hayes on 12 June 2024.[33]Instead, a meeting was arranged with Mr Hayes, the claimant and Cherry Tree management. Having heard oral evidence from both Mr Hayes and the claimant, at this stage,they both attended the meeting with the expectation that the ongoing issues between Mr Smith and others and the claimant could be resolved so that a return to work would take place. The ‘tripartite’ meeting on 21 June 2024[34]The meeting on 21 June 2024 took place over 1 ½ hours during the afternoon and was attended by Mr Hayes, Mr Smith, the claimant, as well as Terry McQuilliams who was another security guard, Ruth Kavanagh the Centre administrator and Helen Worrall, who joined remotely by Teams and she was Colliers Regional Facilities Manager.[35]Although the claimant did not agree with the available attendance note of the meeting, I accepted that it broadly reflected what had been discussed and the meeting opened by stating that its aim was: ‘for a line to be drawn on previous behaviour and to agree to certain conditions going forward so a smooth operation can be achieved.’ The issues regarding the claimant leaving the site and relations with the police were discussed and the claimant said he would do what Mr Smith as Cherry Tree Manager wanted him to do. Both Mr Hayes and Mr Smith described the claimant as being a good guard. The claimant expressed unhappiness regarding the way Mr Smith would speak to him and the body language used and Mr Hayes reminded him that there needed to be mutual respect between all parties involved. It concluded with no decision being made, but the claimant was informed that management at the Cherry Tree would take some time to consider this matter. How the claimant’s employment with the respondent ended[36]The claimant did not pursue the question of resignation any further and on 2 July 2024, he emailed Mr Hayes to remind him that he was still awaiting a response regarding his return to work. He referred to the letter of resignation being declined and clearly identified that he was awaiting permission to return to work.[37]Mr Hayes did not reply to this email until 5 July 2024 and began by discussing the resignation letter of 11 June 2024, the meeting the next day and then the meeting on 21 June 2024. He referred to Mr Smith’s role in managing the claimant on site, the issues regarding the police and that while Mr Smith was described as liking the claimant, these ongoing problems caused him concern. It was acknowledged that the claimant did seek to rescind the resignation at the meeting on 21 June 2024, but that the client (i.e. The Cherry Tree/Colliers) felt that the working relationship could not be repaired and they would not permit the claimant to return to his place of work. The email concluded by informing the claimant that the respondent had no suitable alternative but then said that the resignation of 11 June 2024 was accepted.[38]In this case the claimant accepted that his wife (who has some legal knowledge but is not an employment lawyer), did assist him in drafting correspondence. This can be seen from the numerous emails that he sent, and which were available within the bundle. I have therefore focused upon his oral evidence to understand what was in his mind during June and July 2024.[39]Similarly, Mr Hayes, while a supportive manager of the claimant also appeared to be receiving some instructions from HR and/or more senior management and they may well have had some influence upon the content of his emails. However, as he was the only respondent witness, I listened carefully to what he said during his oral evidence.[40]Mr Smith produced a lengthy statement on 3 July 2024 which appeared to be an explanation of how the meeting on 21 June 2024 was an opportunity for the claimant: ‘to prove he was a valuable member of staff, he could move on from his vendetta against the police and realise that his conduct had been in question on occasion and that he would address. Craig was very condescending and aggressive during the meeting, and he took the stance that nothing he had done was wrong, but that he would change his ways under duress if he meant he could come back to work at the Cherry Tree centre. The meeting ended and we informed Craig we would make a decision at a later date on whether to accept his resignation or allow him to continue to work at the centre. ‘On 01 7 24 myself, Ruth Kavanagh, Janine Burrows and Helen Worrell (all Collier's staff) met on teams to discuss Craig. It was agreed unanimously that it was untenable for Craig to continue to work at the centre and there was no confidence in him improving his attitude it was also felt that several staff at the Cherry Tree felt uncomfortable working with him. It was agreed to accept his resignation.’ Mr Smith of course, was eventually prevented from attending the final hearing and giving oral evidence by his employer’s legal advisors. I was therefore limited to considering the statements that he had provided, and which had limited evidential value compare with any oral evidence that he could have given. However, based upon the available evidence, the decision to tell the respondent that the claimant could not return to the Cherry Tree, involved the participation of management at Colliers more senior to Mr Smith. He was not deciding in isolation but with their endorsement and support.[41]I concluded that Colliers management decided not to allow the claimant to return to the Cherry Tree as a security officer on 1 July 2024 and this would have been communicated to the respondents at around the same time that the claimant was seeking an update from Mr Hayes. The Cherry Tree decision and their refusal to allow the claimant to return to that workplace, resulted in the respondent’s decision to end the employment relationship.[42]A further series of emails took place between the claimant and Mr Hayes following the communication to the claimant on 5 July 2024 that his employment would not continue. The claimant sought to argue that he had been unfairly dismissed, and Mr Hayes continued to refer to the claimant having resigned. The claimant sought an appeal concerning this decision. I accepted Mr Hayes’ evidence that no appeal would be offered because the belief at the time was that the respondent was accepting the claimant’s resignation. Law Constructive Unfair Dismissal
Law
[43]Section 95(1)(c) of the Employment Rights Act 1996 (ERA), provides that an employee is dismissed by his employer 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.[44]In Western Excavating (ECC) Ltd v Sharp 1978 ICR 221 it was held that in order to claim constructive dismissal an employee must establish:(i) that there was a fundamental breach of contract on the part of the employer or a course of conduct on the employer’s part that cumulatively amounted to a fundamental breach entitling the employee to resign, (whether or not one of the events in the course of conduct was serious enough in itself to amount to a repudiatory breach);(ii) that the breach caused the employee to resign – or the last in a series of events which was the last straw; and(iii) that the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[45]All contracts of employment contain an implied term that an employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.[46]It is open for an employer to argue that, despite a constructive dismissal being established by the employee, that the dismissal was nevertheless fair. The employer will have to show a potentially fair reason for the dismissal and that will be the reason why the employer breached the employee’s contract of employment. Unfair dismissal[47]Section 94 of the ERA 1996 provides that an employee who has sufficient qualifying service has a right not to be unfairly dismissed by their employer.[48]Under section 98(1) ERA 1996, it is for the employer to show the reason for the dismissal (or if more than one the principal reason) and that it is either a reason falling within section 98(2) or for some other substantial reason of a kind such as to justify the dismissal of the employee holding the position he held. Consequently, in this case, some other substantial reason is a potentially fair reason falling within section 98(1)(b)[49]In determining the reason for the dismissal, the Tribunal may only take account of those facts or beliefs that were known to the employer at the time of the dismissal.[50]Under section 98(4) of the Employment Rights Act 1996, where the employer has shown the reason for the dismissal and that it is a potentially fair reason, the determination of the question whether the dismissal was fair or unfair depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and must be determined in accordance with equity and substantial merits of the case.his[51]Mr Walker referred to the case of Tarzi v Securitas [2014] UKEAT/0535/13/SM. This case involved a security guard being dismissed because his non employer place of work informed his employer Securitas, that they no longer wanted him to work there because of historic issues that had arisen.[52]Mrs Freedman referred to the following cases: a) Polkey v A E Dayton Services Ltd [1987] UKHL 8; [1988] ICR 142 (this will be relevant to the consideration of remedy in the final hearing). b) British Home Stores Ltd v Burchell [1978] ICR 303 (EAT) (perhaps the most well known case authority dealing with unfair dismissal cases where conduct is the asserted potentially fair reason – i.e. not some other substantial reason as asserted by the respondent in this case). london borough of harrow c) Henderson v Connect (South Tyneside) Ltd [2010] IRLR 466 (EAT) (some other substantial reason – third party pressure. The question under s98 ERA 1996 is whether it was reasonable for the employer to dismiss and if an employer has done everything reasonable to avoid the dismissal, then any eventual dismissal will be fair). d) Ezsias v North Glamorgan NHS Trust [2011] IRLR 550 (EAT). This case was also relied upon by Mr Walker. It involves the application of some other substantial reason where relations with an employee deteriorated significantly. However, caution is given that an employer must not use this reason to conceal the real reason for the dismissal, such as conduct. Unlawful deduction from wages[53]Section 13 of the ERA 1996 provides that a worker has the right not to have their employer make an unauthorised deduction from their wages.[54]The exceptions are where a deduction is required or authorised by a statutory provision or a relevant provision of the worker’s contract or where the worker has previously given in writing their agreement to the making of the deduction.[55]Section 14 ERA 1996 provides that section 13 does not apply where the deduction is made by the employer to reimburse an overpayment of wages. Wrongful dismissal[56]The Employment Tribunals Extension of Jurisdiction Order 1994 provides that proceedings for breach of contract may be brought before a Tribunal in respect of a claim for damages or any other sum (other than a claim for personal injuries and other excluded claims) where the claim arises or is outstanding on the termination of the employee’s employment.[57]A claim for notice pay is a claim for breach of contract; Delaney v Staples 1992 ICR 483 HL.[58]In Neary v Dean of Westminster [1999] IRLR 288, it was held that conduct amounting to gross misconduct justifying summary dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the employer should no longer be required to retain the employee in his employment.[59]In cases of wrongful dismissal, it is necessary for the Respondent to prove that the Claimant had actually committed a repudiatory breach of contract. See: Shaw v B & W Group Ltd UKEAT/0583/11. Discussion Jurisdiction to hear the complaints
Discussion
[60]Firstly, I accepted that time limits were not relevant to the unfair dismissal complaint because the claimant’s earliest possible date of termination was 11 June 2024. Given the dates of early conciliation and the presentation of the claim, the complaint of unfair dismissal was in time in accordance with section 111 ERA 1996. The claimant had more than 2 years continuous service when the employment ended and the Tribunal had jurisdiction to accept the claim under section 108 ERA 1996.[61]The breach of contract and wages claims appear to relate to the period from June 2024 onwards and given that anything which happened before 20 May 2024 is likely to be out of time under ERA 1996 etc’, all claims were presented in time. Mr Walker did not seek to challenge this in submissions. When the claimant’s employment ended[62]Turning to the question regarding how the claimant’s contract of employment was terminated the primary argument raised by the respondent was that the claimant ended his employment on the 11 June 2024 when he sent his initial e-mail asserting his resignation. Secondly, if that was not correct, they referred to the ‘meat on the bones’ letter dated 12 June 2024 which had been produced at the request of Mr Hayes following his meeting with the claimant that day at his home.[63]However, as I discussed above, my conclusion was that both the claimant and Mr Hayes gave evidence to persuade me that at this point the respondent had not accepted the resignation and the claimant was not seeking to enforce the resignation. Instead, both looked to the meeting of the 21 June 2024 with Cherry Tree management and where the outstanding issues could be resolved and in order that the claimant could return to work there. There was nothing available in terms of documentation following the initial letters of 11 and 12 June 2024, which suggested that either the claimant or the respondent was seeking to end the employment relationship.[64]Instead, what happened was that the respondent treated the claimant’s resignation emails as a form of grievance. This makes sense given that a great deal of the events complained about by the claimant happened between him and management of the third-party workplace (Cherry Tree), and concerning his relationship with Mr Smith. It was Colliers management who determined whether the claimant’s employment could remain viable as a security officer at the Cherry Tree.[65]What happened was that the meeting of 21 June 2024, began with an expression that those attending would seek to resolve matters between the claimant and Mr. Smith. Mr Smith's subsequent statement dated 3 July 2024 that management at the Cherry Tree and Colliers more widely felt the claimant had not demonstrated at that meeting he could return to work and get on with Mr. Smith and others. Consequently, they decided to not allow the claimant to return to the Cherry Tree as a security officer.[66]I concluded that this statement or at least the decision made in this statement was communicated to the respondent’s managers or HR. Mr Hayes was informed by them that he would have to tell the claimant his employment had ended. While the respondent and Mr Hayes’s e-mail dated 5 July 2024 sought to rely upon the claimant's resignation dated the 11 June 2024. However, I concluded that had been allowed by Colliers to return to work at the Cherry Tree, the claimant would have been allowed to continue working for the respondent.[67]This meant that once Colliers’ management decided that the claimant could not return the respondent was left with an employee with whom they could no longer place to do work under the contract that existed with colleagues. There was a perfunctory reference in Mr Hayes’ email dated 5 July 2024, to an absence of alternative vacancies, but this was inconsistent with the asserted reason for the employment relationship coming to an end. What was clear to me was that the respondent had convinced themselves that they could still rely upon the claimant resignation even though by July 2024 it was clear that both Mr Hayes and the claimant was simply waiting for confirmation from Colliers that the claimant could return to work. Indeed, the evidence of Mr Hayes, was that he told the claimant before the meeting that he simply had to acquiesce to what was expected of him and he will be allowed to return. The claimant was not left in a position at the conclusion of the meeting on 21 June 2024, where he thought his employment was about to end.[68]Consequently, the claimant’s contract of employment was terminated when he received the e-mail from Mr Hayes communicating the decision that he could not return to work on 5 July 2024. This was the effective date of termination and although the respondents relied upon the resignation, the decision to terminate the employment was actually made by the respondent based upon Colliers instructing them that the claimant could no longer return to his contracted workplace at the Cherry Tree. The reason for the dismissal[69]On this basis the claimant was dismissed by the respondent on 5 July 2024. It was not necessary to consider the contents of the claimant's resignation letter because what happened was that he had continued to remain available for work and did not pursue the resignation following his discussion with Mr Hayes on 12 June 2024. By this stage, both he and his employer hoped that any ongoing matters which he had addressed in that letter will be resolved between him, Mr. Smith and the Cherry Tree management more widely.[70]The respondent in the alternative as asserted that the claimant was dismissed for the reason of some other substantial reason which is a potentially fair reason under the ERA 1996[71]The difficulty for the respondent, however, is that their position continued to be that they were relying upon an earlier resignation e-mail dated the 11 June 2024. At no stage did they communicate to the claimant that they were dismissing him and that this was because of the decision made by Colliers in relation to his place of work. Mr Hayes maintained that the respondent relied upon the resignation correspondence on 5 July 2024, even by that point, they would have known of Colliers’ decision.[72]If they did believe at the time that the real reason for the employment relationship to end was some other substantial reason, there would need to be meaningful evidence available demonstrating that this was the case. They did not seek to engage in any process or notice; there was no evidence that they tried to persuade Colliers to reconsider their decision. There simply was an absence of evidence to demonstrate that the respondent had done everything reasonable that they could to mitigate the impact of Colliers decision and thereby showing that they were seeking to end the relationship because of some other substantial reason.[73]Consequently, the respondent did not demonstrate that they treat it this potentially fair reason as being a reason for dismissing the claimant or that it was a sufficient reason to dismiss the claimant.[74]This means that the claimant was unfairly dismissed by the respondent on 5 July 2024. Consequences arising from this decision and the future Remedy hearing[75]It will be a matter for remedy to determine whether there is a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed.[76]By 5 July 2024, the respondent would have been aware that the claimant could not return to work at the Cherry Tree centre. That was a decision that had been made by the party Cherry Tree management, and they could not decide whether or not the claimant should be dismissed. At this point the respondent could have followed a process which would have explored whether the Colliers would change their mind, whether alternative vacancies were available. If none of this was possible, they could have considered how the employment should be ended and what process should be followed including the potentially fair reason that applied.[77]Given the case law regarding circumstances such as these (and indeed simply looking at this matter in practical terms), it is likely that a reasonable employer could have concluded that there was some substantial reason for terminating an employee’s contract of employment, namely third party decisions. However, Mr Hayes’ email of 5 July 2024 identified resignation and not some other substantial reason and the absence of procedure rendered the decision unfair. Deductions and uplifts to any unfair dismissal award[78]Because this case involved consideration of both constructive unfair dismissal, ordinary unfair dismissal and issues relating to when and how the employment ended, it was not possible to deal with remedy issues such as Polkey percentage reductions, contributory fault (sections 122(2) & (3) and 123(6) ERA 1996), and/or adjustments (section 124A – adjustments under the Employment Act 2002).[79]In terms of the application of Polkey, if the respondent maintained that dismissal any termination of employment was some other substantial reason, then the decision could not be summary (i.e. having immediate effect). The claimant would therefore be entitled to his relevant contractual/statutory period of notice. But before that position was reached there should have been some effort made to engage with the claimant to consult with him and to explore whether any alternative opportunities were available which will permit him to remain as a security officer but working at a different location and potentially under a different contract. It will be a matter for discussion at the remedy hearing regarding how much longer a fair process would have taken.[80]While I will welcome submissions from both parties regarding this matter at the remedy hearing, it is likely from the available evidence in this hearing, that the claimant could have had his employment fairly terminated at a later date, given the difficulties that had been identified. Consequently, consideration will be given at remedy concerning the question of whether compensation will be limited to the appropriate period of time that would be required for a fair process to be followed before dismissal took place.[81]As mentioned above, the remedy hearing will also consider the question of whether the respondent should be required to pay an uplift to any award payable to the claimant in respect of this unfair dismissal for failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.[82]As I discussed with the parties earlier in this hearing, I did consider the question of whether the ACAS Code of Practice could apply in cases where the asserted reason for the dismissal was some other substantial reason. This clearly was a case where the respondent was placed in a position where the claimant’s employment was being ended because of a decision by a third party. In that respect those external factors were the reason why the employment was ended.[83]The ACAS Code of Practice on Disciplinary and Grievance Procedures specifically excludes dismissals relating to redundancy and the termination of fixed term contracts. However, no express reference is made to the exclusion of a dismissal involving some of a substantial reason. The balance of the available case law is that some consideration should be given to the relevant ACAS Code in these circumstances.[84]However, given the nature of how such a dismissal takes place, it might not be possible for a prescriptive process to be followed in accordance with the guidance given by ACAS. Nonetheless it is reasonable to expect that an employer in these circumstances should apply principles of fairness and consider the principles within the Code. This would include some sort of investigation and to the possibility of alternative work, full notification to the claimant of why a decision to dismiss was being considered, allowing him a chance to make representations and offering some sort of appeal if he felt that the decision had been made unreasonably.[85]Considering the way that the respondent had dealt with this dismissal and their insistence upon relying upon the earlier resignation email, the available evidence reveals that the respondent did not adhere to any process. Nonetheless, the respondent (and of course the claimant), will be able to make submissions fact the remedy hearing. The other complaints of breach of contract and wages[86]As discussed during final submissions, limited evidence was heard regarding the question of unlawful deduction from wages and breach of contract. There was some uncertainty on the part of the respondent’s witness Mr Hayes concerning whether the claimant had received all of the monies which have been owed to him in the period from June until the termination of employment. I acknowledge that the question of the date of termination has only been resolved in this judgement and this will have had an impact upon the extent to which the claimant is able to argue (and the respondent to dispute), an unlawful deduction from wages and a breach of contract for a failure to pay notice pay.[87]As referred to above, this has not been a case where the respondents ought to rely upon gross misconduct on the part of the claimant thereby justifying summary dismissal. The question of notice pay arising from the identified date of termination on 5 July 2024 can be considered at remedy. However, consideration should be taken of any award made in relation to the unfair dismissal complaint to avoid double compensation.[88]The respondent will be expected to consider the claimant’s schedule of loss which will be updated prior to the remedy hearing and to consider the extent to which there has been an unlawful deduction from wages. If necessary, evidence can be heard at the final hearing, but it is hoped that this is a matter that the parties can agree between themselves, given that the date of termination has now been identified.
Conclusion
[89]Accordingly, my decision is that: a) the complaint of unfair dismissal is well founded, and this means that the claimant was unfairly dismissed. b) The question of whether the claimant is entitled to any award for breach of contract and all unlawful deduction from wages will be determined at the remedy hearing alongside the determination of remedy in relation to the successful unfair dismissal complaint. c) The date of the remedy hearing will be sent to the parties within a separate Tribunal Notice. ________EJ A Johnson