Mr B W Garrett v Tyco Fire Products Manufacturing Ltd: 2414078/2019

EMPLOYMENT TRIBUNALS

Case No 2414078/2019

Between

Mr B W GarrettClaimant

Tyco Fire Products Manufacturing LtdRespondent

Before

Employment Judge Hill

Date 17 June 2020

JUDGMENT

The judgment of the Tribunal is that the claimant's claim for constructive unfair dismissal fails and is hereby dismissed.

REASONS

[1]The claimant brought a claim of constructive unfair dismissal by way of a claim form (ET1 form) presented on 24 October 2019.

[2]The respondent resisted the claim by way of a response form (ET3) presented on 26 November 2019.

[3]The claimant was unrepresented during these proceedings and at this hearing. At the beginning of the hearing the Tribunal discussed with the claimant and the respondent the issues to be determined by the Tribunal, and for the claimant to confirm the alleged breach/es he was relying upon to support his claim for constructive unfair dismissal. The Issues for the Tribunal to determine

[4]The claimant referred to his resignation letter dated 24 October 2019 which set out five reasons and an additional breach in respect of the calculation of his holiday entitlement:(1) That the claimant had no choice but to resign in light of his recent experiences regarding holiday entitlement calculations that were being used;

(2) That these calculations had led to workers receiving less time than the Working Time Regulations provide for;

(3) That the company had refused to provide answers to questions raised about contractual rights;

(4) That the final straw was that the company had not issued the collective grievance or the update to the staff handbook to anyone apart from the claimant, and that the claimant therefore considered the company was trying to avoid scrutinisation of its actions.

(5) In addition, the calculation used to determine the number of hours’ holiday the Claimant was entitled to had been miscalculated and did not take into account the increase in the Claimant’s hours from 38 hours a week to 42 hours a week after a change in his shift pattern in early 2017.

[5]The claimant is relying on a course of conduct by the respondent which viewed cumulatively amounted to a repudiatory breach of the implied term of trust and confidence entitling him to resign and claim constructive dismissal.

[6]The respondent argued that the holiday entitlement had been calculated correctly and that in addition it had dealt with all the claimant's grievances appropriately and answered all questions that had been asked of it. The Respondent further argued that the sending of the staff handbook was not a breach of contract.

The Evidence

[7]The Tribunal was provided with the following:(1) A bundle of documents (page numbers 1-183);

(2) A witness statement from the claimant, Mr B W Garrett;

(3) Three witness statements from the respondent: Mr Greg Roberts, Mr Mark Macmichael, and Mr Damian Morris. Relevant Findings of Fact

[8]The claimant was employed as an Electrical Maintenance Engineer at the respondent’s fire sprinkler manufacturing site in Stockport from 5 January 2009 until his resignation on 24 October 2019.

[9]The claimant worked without incident and was employed on a full-time basis working 38 hours per week over five days until 13 March 2017.

[10]In early 2017, the respondent introduced a new shift system known as the Panama shift pattern. This shift pattern was introduced following the Stockport site opening 24 hours a day and was introduced to meet the change in operational need. The new shift pattern introduced a four day on/four day off pattern. The length of shifts increased from 8 hours per day to 12 hours per day and the average working week increased from 38 hours per week to 42 hours per week. The claimant, along with colleagues, was paid for the additional hours worked per week. This was common ground between the parties.

[11]The shift pattern was fixed, and it was therefore possible to calculate what shifts and days off an employee would have for the coming year and indeed further ahead.

[12]The claimant moved to the new shift pattern on 13 March 2017. Set out at page 52 of the bundle is a letter from the respondent to the claimant confirming the new working arrangement, the effective start date being 13 March 2017, and that the average working week would be 42 hours. The letter recorded that his salary would be amended to reflect the increase in hours. This letter also confirmed that all the Claimant’s remaining terms and conditions would remain unchanged.

[13]The company’s holiday year ran from 1 January to 31 December. When the claimant commenced his employment with the Respondent, he worked over five days and his holiday entitlement was in accordance with his contract of employment dated 5 January 2009, which was set out at pages 24-29 of the bundle. Page 25 states: “In the case of a normal working week of five days the entitlement to annual holiday each year is 25 days. This is given in addition to eight public holidays.”

[14]Further in the same section set out at page 25 it states: “Management reserve the right to fix up to five days or pro rata equivalent for part-time staff, of the annual holiday entitlement at dates dependent upon the calendar at Bank Holidays and in particular to provide for the period between Christmas and New Year and/or any other business requirements.”

[15]Further details regarding the policy on holiday entitlement is set out in the employee handbook which was set out at pages 36-46 of the bundle. It was agreed between the parties that the company provided for 5 weeks annual leave and in addition, 8 bank holidays. The handbook did not refer to the panama shift pattern because it was produced prior to the introduction of the new shift pattern.

[16]After the introduction of the new shift pattern the Claimant was unhappy with the annual leave arrangements and he did not understand his entitlement under the new panama shift pattern.

[17]Shortly after the implementation of the new shift system the Claimant was given a new booking sheet to book annual leave. There were errors in the calculations on these sheets and on at least one occasion the amount of annual leave the Claimant was entitled to was changed.

[18]In October 2017, the claimant raised his first grievance. A copy of this grievance was not contained in the bundle but notes of the grievance meeting held on 18 December 2017 were set out at pages 55-60 of the bundle.

[19]The claimant complained that he had not received his new holiday form and that without the issuing of a new contract it was difficult for him to understand how to work out his holidays and that the calculations he had been given were not correct. His holiday entitlement was now calculated in hours rather than days. The Claimant stated that during 2017 he had had six holiday forms and on 24 October 2017 he had been told that he did not have enough holiday to book time off for a funeral. This turned out to be incorrect and the Claimant’s holiday was recalculated.

[20]There was no evidence that the Claimant did not get all his holiday entitlement put before the Tribunal but there was evidence that calculations had varied particularly during 2017 and that the forms to book annual leave were confusing.

[21]On 5 January 2018 the respondent sent the claimant a letter with the outcome to his grievance. It stated that during the period 1 January to 12 March 2017 his holiday had been calculated based on a 38-hour week and that from 13 March until 31 December his holiday had been calculated on a 42-hour week. This explanation did not make things clear for the Claimant and he therefore appealed the outcome of the grievance.

[22]On 2 February 2018 the respondent held a grievance appeal meeting with the claimant. The outcome of that appeal was sent by letter dated 23 February 2018 setting out how his holiday had been calculated. This letter is set out at page 111 of the bundle, where the respondent confirms that the claimant’s holiday entitlement had been calculated using the following formula: 42 hours per week x 5 weeks (25 days) = 210 hours. In addition to this the claimant was entitled to the statutory Bank Holidays based on a 12 hour working day 8 days x 12 hours = 96 hours, but that Christmas Day, Boxing Day and New Year’s Day were automatically held back at the beginning of the year in order to cover the Christmas close down on those days. However, if the claimant's rest day fell on one of the Christmas Bank Holidays that he would be given the additional 12 hours per shift back into his holiday allowance.

[23]In March 2018 the claimant brought a separate claim to the Employment Tribunal in respect of race discrimination and unlawful deduction of wages. The race discrimination claim was dismissed; however, the unlawful deduction of wages claim was found to be well-founded and the respondent was ordered to pay the claimant £810 as compensation. The unlawful deduction of wages claim was based on the failure of the respondent to pay overtime rates for Bank Holidays.

[24]On 29 August 2018 the respondent wrote to the claimant again setting out the way in which it had calculated the claimant's holiday entitlement. This is set out at page 136 of the bundle. This document shows that the holiday had been calculated so that all employees working the Panama shift would still be entitled to five weeks’ holiday by converting five weeks’ normal hours at 42 hours per week totalling 210 hours, and in addition that the claimant was entitled to eight Bank Holidays calculated by multiplying eight days by 12 hour shifts = 98 hours, giving an overall annual leave entitlement including Bank Holidays of 306 hours. This letter also set out that the claimant was required to hold three of those Bank Holidays back to cover any Christmas shutdown, but the 270 hours were free to be booked.

[25]In January 2019 the claimant submitted a further grievance which is set out at pages 138 and 139 of the bundle. In this grievance the claimant still had queries in respect of his holiday entitlement. He referred to his previous grievance and documents that had been supplied for the Employment Tribunal. The main point that the claimant raised in his grievance, and indeed at this Tribunal hearing, is that he considered that the calculation of the holiday entitlement had not taken into account the longer working week as compared to other shift workers who were working 8 hours per day. The claimant’s argument being that because he was now working 42-hour weeks that he considered that he should be entitled to more holidays than staff who were working 38 hours a week. This grievance was raised on behalf of several other colleagues and the claimant was their “spokesperson”.

[26]On 1 February 2019, the claimant attended a further grievance hearing on behalf of himself and his other colleagues.

[27]On 12 February 2019 on behalf of the 29 Panama employees the claimant submitted some questions in respect of holiday entitlement and requested that the respondent deal with the questions asked. The respondent sent a written response to those questions on 15 March 2019.

[28]This response from the respondent is set out at pages 149-155 of the bundle. This letter again sets out at page 150 how annual leave is calculated for a 42-hour week worker: “(a) Calculate shift pattern and how many weeks it is until a shift repeats. For panama shift this is every eight weeks. (b) In that eight-week period calculate how many days are working days = 28 days. (c) Calculate the average working week for somebody on Panama shifts = 28 ÷ 8 = 3.5 days. (d) Each shift = 12 hours, therefore the average working week = 12 x 3.5 = 42 hours. (e) Five weeks (as employees are entitled to five weeks’ holiday) x 42 hours = 210 hours. For the eight Bank Holidays the calculation is eight days x 12 hours a day = 96 hours (in addition to the 210 hours above). This is 306 hours in total (210 plus 96) however as set out in the handbook 3 x 12 (36) of those are required to be held back for Christmas shutdown, so employees have 270 hours which they are free to use.”

[29]At page 151 of the bundle the claimant asks why the holiday for the shift workers is calculated in hours but for the 38-hour week workers it is calculated in days. The answer is set out below and the Tribunal finds that this was a reasonable response and accurate response to the question raised: “This is because if you are a 42 hour worker working shifts you do not consistently work the same number of days per week and each shift is 12 hours rather than eight hours for employees working a normal 9 – 5 five day week. Therefore, your annual leave is calculated in hours. Those employees working 38 hours per week work the same number of days consistently each week therefore their annual leave is calculated in days.”

[30]Eleven of the twenty-nine Panama employees appealed against the outcome of the collective grievance. The appeal was submitted by the claimant who was the spokesperson for all eleven employees who were appealing. The claimant attended a grievance hearing on 13 June 2019 and the outcome to this grievance was sent to the claimant on 25 July 2019 addressed generally to all eleven Panama employees who had appealed, and it upheld the original findings as set out in its letter dated 15 March 2019. The grievance whilst addressed generally to all elven panama employees was only sent to the Claimant.

[31]During this period the claimant had unfortunately become unwell and he had been sighed off work initially with stress from 30 April 2019 until 7 May 2019, and then again from 20 May 2019 the claimant became unwell again and was signed off as being unfit for work on 24 May 2019 while tests were carried out to diagnose his condition. The claimant was eventually diagnosed with Motor Neurone Disease. The claimant confirmed that he received the grievance outcome on 29 July 2019 and only discovered later that his colleagues had not been sent a copy of the outcome.

[32]On 18 October 2019, the claimant was sent, and he received a copy of a proposed new updated handbook which detailed the revised panama shift pattern and its corresponding holiday entitlement.

[33]At this time, the claimant who had now been absent from work due to his condition, was also invited to a stage one health capability meeting on 24 October 2019. On 23 October 2019, the Claimant attended his workplace and spoke to his colleagues about the new handbook. The Claimant’s colleagues informed him that they had not received the outcome of the grievance or a copy of the new handbook. No evidence was given to the Tribunal that the colleagues complained to the Claimant about this.

[34]The new handbook included details of the new panama shift system and set out the corresponding holiday entitlement and the requirement to keep days back for the Christmas period. The Claimant considered that these details were new features to the holiday entitlement for panama shift workers. The Tribunal finds that this is not the case and that the Respondent had already set out

[35]Mr Macmichael gave evidence that as the Claimant had been the spokesperson for the group of colleagues that it had only been sent to him and the failure to send the grievance and the handbook to the other eleven colleagues while the Claimant was off sick was an oversight. Mr Macmichael did not attempt to dispute this was the case and confirmed there was no malice intent in the failure to send the grievance to all parties. Mr Macmichael also explained that the handbook was a draft and that it now set out the detail of the new panama shift system and the detail of the corresponding holiday entitlement which had not been included in the previous handbook. It was sent to the Claimant in draft form to provide detail of the system. The tribunal accepted his evidence as honest and open.

[36]The claimant attended the respondent’s premises on 24 October 2019 and handed his resignation in to his manager, Mr Roberts. The Law Constructive Dismissal

The Law

[37]Section 91(1)(c) of the Employment Rights Act 1996 provides: “Circumstances in which an employee is dismissed: (1) For the purposes of this Part an employee is dismissed by his employer if – (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice or by reason of the employer’s conduct.”

[38]The leading case in respect of constructive unfair dismissal is Western Excavating (ECC) Limited v Sharp

[1978] QB 761

. The Tribunal should ask itself the following questions:(a) Did the claimant resign in circumstances in which they were entitled to resign without notice by reason of the respondent’s conduct?

(b) If so, what was the repudiatory breach that entitled the claimant to resign?

(c) Was there a series of breaches which entitled the claimant to resign, and if so, what was the last straw in such a series?

(d) Did the claimant resign in response to this breach?

(e) Did the claimant delay in resigning and re-affirm the contract?

[39]In order to be successful in a claim for constructive unfair dismissal the claimant must show that there has been a repudiatory or fundamental breach of contract going to the root of the contract, and it is not enough to show that an employer has merely acted unreasonably. Further, in cases where an employee is relying upon the implied term of mutual trust and confidence the Tribunal must consider the House of Lords decision in Mahmood v BCCI SA, Malik v BCCI SA (in Liquidation)

[1998] AC20

1997 3All ER 1 where it sets out that an employer shall not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between an employer and an employee.

[40]A course of conduct may have the effect of undermining mutual trust and confidence and consequently amount to a fundamental breach following a last straw incident. Guidance is provided to the Tribunal in the Court of Appeal case of Kaur v Leeds Teaching Hospital NHS Trust

[2018] EWCA Civ 978

as set out at paragraph 55: “(a) What was the most recent act or omission on the part of the employer which the employee says caused or triggered his or her resignation? (b) Has he or she affirmed the contract since that act? (c) If not, was that act or omission by itself a repudiatory breach of contract? (d) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which viewed cumulatively amounted to a (repudiatory) breach of the Malik term? (e) Did the employer resign in response (or partly in response) to that breach?

[41]Therefore an employee claiming constructive dismissal on the basis of a last straw is entitled to rely on the totality of the employer’s acts as a continuing cumulative breach of the implied duty of trust and confidence notwithstanding a prior affirmation of the contract, provided that the last straw formed part of the series, thus a last straw can revive the right to terminate the contract.

[42]The Tribunal is further assisted by the case of Wood v Wm Car Services (Peterborough) Limited EAT 1981 where it states that the function of the Tribunal is to 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 an employee cannot be expected to put up with it. The Tribunal when considering whether an employer’s conduct has destroyed the relationship of trust and confidence must follow this objective test, and the burden of proof rests with the claimant. Working Time Regulations

[43]Working Time Regulations 1998 Regulations 13 – 13A 13 Entitlement to annual leave(1) Subject to paragraph (5), a worker is entitled to four weeks’ annual leave in each leave year. 13A Entitlement to additional annual leave (1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2).

(2) The period of additional leave to which a worker is entitled under paragraph (1) is— (a) in any leave year beginning on or after 1st October 2007 but before 1st April 2008, 0.8 weeks; (b) in any leave year beginning before 1st October 2007, a proportion of 0.8 weeks equivalent to the proportion of the year beginning on 1st October 2007 which would have elapsed at the end of that leave year; (c) in any leave year beginning on 1st April 2008, 0.8 weeks; (d) in any leave year beginning after 1st April 2008 but before 1st April 2009, 0.8 weeks and a proportion of another 0.8 weeks equivalent to the proportion of the year beginning on 1st April 2009 which would have elapsed at the end of that leave year; (e) in any leave year beginning on or after 1st April 2009, 1.6 weeks.

(3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days.

[44]The Working Time Regulations provide workers, with certain exceptions not applicable here, to a minimum statutory entitlement to paid time off. The current right is for 5.6 weeks annual paid leave made up of 4 weeks basic leave under Regulation 13 (1) and 1.6 weeks additional leave under Regulation 13A(2). The 5.6 leave is subject to a statutory cap of 28 days in total and includes public holidays, unless otherwise provided for in a worker’s contract of employment. It should be noted that that the 1.6 weeks additional leave under Reg 13A(2) is intended to reflect the number of public holidays in England and Wales but it does not confer to workers the right to automatically take leave on those specified days. So, unless a worker has a contractual right to take public holidays, they must book those days in the normal way.

[45]The 5.6 weeks in total is an irreducible minimum which all workers, who are not excepted, are entitled to. Workers who do not work full time would be entitled to the pro rata equivalent. However, a worker may also, in addition, be entitled to additional leave under his or her contract of employment.

[46]Regulation 16(1) states that a worker is entitled to be paid a week’s pay for a week’s leave. A week’s pay is calculated in accordance with Ss 221-224 Employment Rights Act 1996 and all elements of a worker’s renumeration should be taken into account when calculating holiday pay.

Conclusions

[47]The Tribunal has considered the guidance provided and followed the approach taken in the Court of Appeal case of Kaur v Leeds Teaching Hospital NHS Trust

[2018] EWCA Civ 978

[48]Turning to the issues that were agreed between the parties at the beginning of the hearing. Firstly, looking at the reason that the Claimant signed. The claimant stated that this was a last straw situation and that the final straw was that the company had not issued the collective grievance or the update to the staff handbook to anyone apart from the claimant, and that the claimant considered the company was trying to avoid scrutinisation of its actions.

[49]The Tribunal has considered whether the act of sending the claimant a copy of the staff handbook and failure to send a response to the grievance to all employees was the most recent act/s or omission/s on the part of the respondent which caused the claimant to resign. The Tribunal accepts the claimant’s evidence that the reason he resigned was because he had received a copy of the proposed new handbook and he had been told by his colleagues that they had not received a response to the grievance. This ‘act’ triggered the claimant's decision to tender his resignation. The Tribunal finds that the claimant's resignation was submitted in a timely manner and it cannot be said that there was any delay.

[50]The Tribunal then went on to consider whether the act of sending the proposed staff handbook to the claimant alone and the failure to send the grievance response to all parties was sufficiently serious to constitute a repudiatory breach of the implied term of trust and confidence. The Tribunal does not find this to be the case.

[51]Whilst the Tribunal finds that he claimant considered that the failure to send the handbook and grievance outcome to his colleagues issue of holiday calculations and the requirement to keep three days back for Christmas was an ongoing issue and he thought had been incorrectly calculated, it cannot be said that sending a copy of a proposed staff handbook or failing to send the response to the grievance to other colleagues amounted to a repudiatory breach of the implied term of trust and confidence.

[52]The Respondent had shared with the Claimant a draft handbook which now set out details of the new shift pattern and the corresponding leave entitlement. The Claimant if he had concerns with its contents, could have raised those with the Respondent. The Tribunal finds that the respondent did not breach the Claimant’s contract or the implied term of trust and confidence simply by sending the handbook. Further the contents of the handbook merely repeated what had already been expressed to the Claimant on several occasions.

[53]The Tribunal accepts the respondent’s evidence that the failure to send the outcome of the grievance to all parties was an oversight. Mr Macmichael said in his evidence to this Tribunal that there had been an oversight that it had not been sent to all the people involved. There was no attempt to mislead or hide anything from the colleagues and the grievance had been responded to. It is clearly very unfortunate that at this time the Claimant was extremely unwell and as a result the Respondent was not alerted to the fact that the response had not been sent to all members of staff involved. However, the effect of this failure does not amount to a breach of the Claimant’s contract of employment. Whilst the Tribunal accepts that the Claimant may have been upset or disappointed that his colleagues had not received a copy it does not amount to a breach of contract. The Claimant did not suffer a detriment as a result of the failure and there was no evidence that his colleagues had complained to him about the failure or that when the Respondent was alerted they refused to correct the error. The Claimant’s case was that he was upset that the handbook and the outcome had only been set to him. This alone does not reach the required threshold of a fundamental breach going to the root of the contract.

[54]The Tribunal is required to consider whether judged reasonably and sensibly whether it amounts to a breach of the implied term of trust and confidence, the Tribunal finds that it does not.

[55]Secondly the Claimant considered that the calculations under the new Panama shift pattern had led to workers receiving less time than the Working Time Regulations provide for.

[56]The Tribunal has considered the Working Time Regulations 1998 and that a worker is entitled under regulation 13(1) to four weeks’ annual leave, and under regulation 13A an additional 1.6 weeks’ annual leave. This includes statutory days. Whilst the Working Time Regulations in themselves do not define what is meant by a week’s leave, it is widely accepted that a week’s leave involves a worker being away from his or her place of work for a whole week (to a maximum of 5 days). The Tribunal accepts the respondent’s argument (and the Claimant agreed) that the Panama shifts mean that on average the claimant worked 3.5 days each week, and therefore under the Working Time Regulations he was entitled to 5.6 weeks x 3.5 days rounded up to 20 days’ annual leave. If this were converted into hours, the claimant would have been entitled to 20 days x 12 hours = 240 hours per annum. This would be the minimum the Claimant would be entitled to.

[57]However, the claimant under his contract of employment, was entitled to more annual leave than the Working Time Regulations provide for. His contractual entitlement allowed for 5 weeks annual leave and in addition 8 statutory days. Based on the average working week for the claimant on the panama shift this amounted to 306 hours per year. It cannot therefore be said that the Claimant was receiving less than the Working Time Regulations provided for and indeed the Claimant received an additional 66 hours per annum. Therefore, the claimant was clearly provided with more holiday entitlement than that to which he was entitled under the Working Time Regulations.

[58]In these circumstances, whilst it is clear that the Claimant did not understand this to be the case, the Respondent did not breach the Claimant’s contract and the Claimant was under the wrong impression as to the amount of leave he was entitled to under the Working Time Regulations. The Tribunal has found that the Respondent on several occasions set out the Claimant’s entitlement to annual leave and that it was in excess of his entitlement under the Working Time Regulations and therefore the Tribunal finds that there was no breach of contract or act that the Claimant can rely upon to support his claim for constructive unfair dismissal.

[59]The claimant's further concern was that because he worked a 42-hour week he should be entitled to additional holiday.

[60]The Tribunal has considered that under the S 16(1) Working Time Regulations a worker is entitled to be away from work for a whole week and be paid his or her normal remuneration for that time off. The claimant confirmed that he received his normal rate of pay during periods of holiday. The Claimant confirmed that if he booked a week’s leave, he received a week’s pay both when he worked standard shifts of 5 days per week and after he had moved to the panama shift, 3.5 days per week. During a standard week he received payment for 38 hours of work and for the panama shift he received payment for 42 hours of work.

[61]The Claimant’s argument appeared to be that because he worked an additional 4 hours on the panama shift, he should have been given an additional 4 hours annual leave each week. This reason appears to the Tribunal to only be valid if the claimant had only been paid for 38 hours per week when on annual leave. But he was not. He was paid for 42 hours and the Tribunal finds that this is the correct approach.

[62]Many employees work varying hours each week and are entitled to time off and to be paid for that time. For example, if the Respondent employed a part-time worker who worked 4 hours per day over the standard 5-day week, they would work 20 hours over a normal week and be paid for 20 hours. Assuming the part time worker booked five days leave, he would expect to be paid his normal salary for working 20 hours and to be away from the workplace for 5 days. It would not follow that those staff who worked the normal standard shift of 38 hours per week would be entitled to an additional 18 hours’ worth of holiday each week. The compensation for working the additional hours is reflected in the payment given to the workers.

[63]The Tribunal finds that the Respondent has not breached the Claimant’s contract by not giving the Claimant an additional 4 hours leave each week but that the Claimant was compensated for those additional hours by receiving payment for the hours in his normal weekly pay. This does not amount to a breach of contract and therefore is not an act the Claimant can rely upon in respect of his claim for constructive unfair dismissal.

[64]Thirdly, the Claimant complained that the company had refused to provide answers to questions raised about contractual rights. The Tribunal has found that this is not the case and that the Respondent did respond and provide answers to the questions the Claimant raised. The Tribunal accepts that there were mistake made when the new shift was introduced but does not find that the Respondent refused to provide answers.

[65]Lastly, the claimant argued that he had no choice but to resign in light of his recent experiences regarding holiday calculations and that he was relying on a course of conduct which viewed cumulatively amounted to a repudiatory breach of the implied term of trust and confidence entitling him to resign and claim constructive unfair dismissal.

[66]Looking at the respondent’s conduct during the period complained of, the Tribunal finds that there was evidence that mistakes were made in the calculation of the claimant’s hours of work when the new shift pattern was first introduced. At page 62 of the bundle the respondent states that the claimant would be entitled to 277 hours per annum once on the new Panama shift. This is clearly incorrect, and the respondent corrected this and at least from 23 February 2018 at page 111 of the bundle the Respondent has been consistent in calculating the holiday of 210 hours annual leave and an additional 96 hours for Bank Holidays. The respondent has also consistently said that the claimant would be required to hold back three Bank Holiday days entitlement in order to potentially cover a Christmas shutdown and/or Christmas Day, Boxing Day and New Year. There was no evidence provided to the Tribunal that the Claimant had prior to February 2018 ‘lost’ holiday but there had been mistakes made and amendments had to be made.

[67]The Tribunal has sympathy with the claimant that during the first year of the changeover to the new Panama shift there appears to be inconsistencies and miscalculations in respect of the holiday entitlement. The Tribunal also accepts that the respondent did not implement a clear booking system for holiday at least during 2017, and that there were occasions when the claimant would have been unaware of his exact holiday entitlement. Whilst the Tribunal finds that this may amount to a breach of contract, the Tribunal does not find that it is a fundamental repudiatory breach entitling the claimant to resign and claim constructive dismissal because the Claimant provided no evidence that he had lost holiday. Even if the Tribunal is wrong, the Tribunal finds that the claimant affirmed that breach by continuing to work and the claimant confirmed in evidence that he did not consider it worth resigning over the holiday that he was unable to book for example the funeral. These acts/omissions may have amounted to a breach of contract, however, the tribunal has found that there were no further acts or omissions that amounted to a breach of contract and therefore even if viewed cumulatively the Claimant has been unable to demonstrate that the Respondent’s conduct as a whole, judge reasonably and sensibly, is such that the Claimant could not be expected to put up with it.

[68]This is an objective test, Wood v Wm Car Services (Peterborough) Limited EAT 1981, with the burden of proof resting with the Claimant.

[69]By the time the claimant had resigned the claimant had raised several grievances and the respondent had consistently provided confirmation of the entitlement to annual leave to the claimant. The claimant was under a misapprehension that he was entitled to additional holiday for working 42 hours a week and/or that he was being given less entitlement than the Working Time Regulations. Earlier acts or omissions with regards to the mistake over annual leave calculations in 2017 and 2018 had been affirmed and did not amount to fundamental breaches and whilst an employee claiming constructive dismissal on the basis of a last straw is entitled to rely on the totality of the employer’s acts as a continuing cumulative breach of the implied duty of trust and confidence notwithstanding a prior affirmation of the contract, the Claimant must show that the last straw formed part of a course of conduct comprising several acts and omissions which viewed cumulatively amounted to a (repudiatory) breach of the implied term of trust and confidence.

[70]In this case the reasons the claimant gave for resignation were not further acts or omissions that amounted to breaches of the implied term of trust and confidence either separately or considered cumulatively. The Respondent did not conduct itself in a manner likely to destroy trust and confidence between the parties.

[71]In all the circumstances the Tribunal finds that claimant’s claim for constructive dismissal fails and is dismissed. Employment Judge Hill Date: 17 June 2020