Mr G LeverClaimantCo-Operative Group LtdRespondent
Before
Employment Judge Ainscough (sittingIn person for claimantMs S Clarke (instructed by Counsel) for respondentDate 27 August 2019
JUDGMENT
The claimant's claim for constructive unfair dismissal is dismissed.
REASONS
[1]The parties attended at the Manchester Employment Tribunal over three days. The morning of day one I spent reading the witness statements and relevant documents, and the claimant began and concluded his live evidence on the afternoon of day one.[2]Three of the respondent witnesses gave evidence on day two and the final respondent witness gave evidence on the morning of day three. Both parties were able to give oral submissions and skeleton arguments in writing at the end of the same morning. Deliberations took place on the afternoon of the third day after I advised the parties that a judgment would be reserved and given in writing.[3]The claim arose out of the claimant's resignation from employment with the respondent on 27 June 2018. The claimant contends that he had been subject to a fundamental breach of his employment contract that subsequently caused his resignation and consequent wage loss.
Issues
[4]The claimant contended that the following amounted to fundamental breaches of his contract that caused him to resign:(1) During a restructure of the organisation, the respondent failed to follow policy and uphold commitments to save jobs;(2) Bullying at the hands of his line manager – Gil Harvey;(3) The respondent’s failure to follow the correct disciplinary process;(4) The respondent’s mishandling of and failure to follow a correct procedure and failure to uphold the claimant's grievance;(5) The respondent’s decision to force the claimant to continue to work with Gil Harvey despite his conduct;(6) The respondent’s overall treatment of the claimant during the disciplinary, grievance and appeal process.[5]The respondent contends that there was no fundamental breach of the claimant's contract but rather an employer dealing with a difficult restructure and subsequent complaint of misconduct. The respondent also contends that the grievance handlers properly reviewed the actions of the claimant's line manager and suggested mediation by way of resolution in order to continue the employment relationship.[6]In the alternative, the respondent contends that any fundamental breach did not cause the claimant's resignation because the claimant wanted an outcome that his line manager was a bully and the two should not continue working together. The respondent is of the view that this was not an outcome that was within its gift, and therefore the claimant would have resigned in any event. Relevant Legal Principles[7]The unfair dismissal claim was brought under Part X of the Employment Rights Act 1996. An unfair dismissal claim can be pursued only if the employee has been dismissed, and the circumstances in which an employee is dismissed are defined by Section 95. The relevant part of Section 95 was Section 95(1)(c) which 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.”[8]The principles behind such a “constructive dismissal” were set out by the Court of Appeal in Western Excavating (ECC) Limited v Sharp [1978] IRLR 27. The statutory language incorporates the law of contract, which means that the employee is entitled to treat himself as constructively dismissed only if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.[9]The term of the contract upon which the claimant relied in this case was the implied term of trust and confidence. In Malik and Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 the House of Lords considered the scope of that implied term and the Court approved a formulation which imposed an obligation that the 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.”[10]It is also apparent from the decision of the House of Lords that the test is an objective one in which the subjective perception of the employee can be relevant but is not determinative. Lord Nicholls put the matter this way at page 611A: “The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances.”[11]The objective test also means that the intention or motive of the employer is not determinative. An employer with good intentions can still commit a repudiatory breach of contract.[12]In Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908 the Court of Appeal confirmed that the test of the “band of reasonable responses” is not the appropriate test in deciding whether there has been a repudiatory breach of contract of the kind envisaged in Malik.[13]Not every action by an employer which can properly give rise to complaint by an employee amounts to a breach of trust and confidence. The formulation approved in Malik recognises that the conduct must be likely to destroy or seriously damage the relationship of confidence and trust. In Frenkel Topping Limited v King UKEAT/0106/15/LA21 July 2015 the EAT chaired by Langstaff P put the matter this way (in paragraphs 12-15): “12. We would emphasise that this is a demanding test. It has been held (see, for instance, the case of BG plc v O’Brien [2001] IRLR 496 at paragraph 27) that simply acting in an unreasonable manner is not sufficient. The word qualifying “damage” is “seriously”. This is a word of significant emphasis. The purpose of such a term was identified by Lord Steyn in Malik v BCCI [1997] UKHL 23 as being: “… apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.” 13. Those last four words are again strong words. Too often we see in this Tribunal a failure to recognise the stringency of the test. The finding of such a breach is inevitably a finding of a breach which is repudiatory: see the analysis of the Appeal Tribunal, presided over by Cox J in Morrow v Safeway Stores [2002] IRLR 9.[14]The test of what is repudiatory in contract has been expressed in different words at different times. They are, however, to the same effect. In Woods v W M Car Services (Peterborough) Ltd [1981] IRLR 347 it was “conduct with which an employee could not be expected to put up”. In the more modern formulation, adopted in Tullett Prebon plc v BGC Brokers LP & Ors [2011] IRLR 420, is that the employer (in that case, but the same applies to an employee) must demonstrate objectively by its behaviour that it is abandoning and altogether refusing to perform the contract. These again are words which indicate the strength of the term.[15]Despite the stringency of the test, it is nonetheless well accepted that certain behaviours on the part of employers will amount to such a breach. Thus in Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908 CA Sedley LJ observed that a failure to pay the agreed amount of wage on time would almost always be a repudiatory breach. So too will a reduction in status without reasonable or proper cause (see Hilton v Shiner Builders Merchants [2001] IRLR 727). Similarly the humiliation of an employee by or on behalf of the employer, if that is what is factually identified, is not only usually but perhaps almost always a repudiatory breach.” 14. In some cases the breach of trust and confidence may be established by a succession of events culminating in the “last straw” which triggers the resignation. In such cases the decision of the Court of Appeal in London Borough of Waltham Forest v Omilaju [2005] IRLR 35 demonstrates that the last straw itself need not be a repudiatory breach as long as it adds something to what has gone before, so that when viewed cumulatively a repudiatory breach of contract is established. However, the last straw cannot be an entirely innocuous act or be something which is utterly trivial. The Court of Appeal recently reaffirmed these principles in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978. 15. There is also an implied term that an employer will reasonably and promptly give employees an opportunity to seek redress for any grievance: Goold WA (Pearmak) Ltd v McConnell [1995] IRLR 516. Alternatively failure to handle a grievance properly might amount to breach of the implied term as to trust and confidence if serious enough to be repudiatory.[16]In the case of Assamoi v Spirit Pub Company (Services) Limited (formerly known as Punch Pub Co Limited) UKEAT/0050/11/LA the Employment Appeal Tribunal confirmed that (paragraph 36): “There is a fundamental distinction which, it is perhaps more easy to recognise than to define, between there being a fundamental breach of contract that an apology by an employer cannot cure and there being action by an employer that can prevent a breach of contract taking place.”[17]In the case of Blackburn v Aldi Stores Limited [2013] IRLR 846 the Employment Appeal Tribunal determined that a failure to adhere to a grievance procedure was capable of amounting to or contributing to a fundamental breach. However, not every failure to adhere to such procedure will constitute a fundamental breach. The Employment Appeal Tribunal was clear that this is a question for the Tribunal to assess in each individual case.
The Facts
[18]The claimant worked as a Chartered Surveyor for the food and retail arm of the respondent company, Co-operative Group. The claimant’s specific role was one of Regional Portfolio Manager responsible for site management of a number of retail properties owned by the respondent. Restructure of respondent’s business[19]On 16 November 2017 the respondent informed the claimant and his colleagues that they were to begin consultation for a restructure of the business. During the consultation period, the claimant and his colleagues were provided with a document entitled “Frequently Asked Questions” which detailed that those at risk could apply for new vacancies in the proposed new structure and priority for that role would be given to a colleague at risk of redundancy in the first instance. The claimant and his colleagues were advised that the new roles would be made available for the first two weeks from 16 November 2017, and only where no application was received during that period would the roles then be advertised to the general employee population of the respondent.[20]During the consultation process the claimant informed the respondent that his preference would be the role of Regional Portfolio Manager and he wished to apply for the role of Senior Asset Manager.[21]On 30 November 2017 the claimant applied for the Senior Asset Manager role. On 11 December 2017 the claimant was interviewed for the role of Regional Portfolio Manager and was informed on 13 December 2017 that he had been successful with the same. On 1 December 2017, the role of Senior Asset Manager was advertised to all employees of the respondent. Gil Harvey line management[22]On 2 January 2018, the claimant was invited to a meeting with Alan Stell and Gil Harvey in which he was provided with feedback about his interview for the Regional Portfolio Manager role. The claimant was advised that his comments about the restructure process came across as angry and frustrated and were not appropriate. The claimant, whilst unhappy with this feedback, drew a line under it and moved on.[23]On 17 January 2018 and 21 February 2018, the claimant attended a one-toone meeting with Gil Harvey. There was a heated discussion between the two about the feedback that had been given and subsequently the claimant was informed by Gil Harvey that his attitude had impacted on his year end grade and he was marked as “achieving”. During both meetings the claimant questioned Gil Harvey about the outstanding application for the Senior Asset Manager role, but the matter was not progressed further. The Laurenne Chapman complaint[24]On 19 March 2018 the claimant spoke with Laurenne Chapman about the restructure. Following that conversation, the claimant received an email from Laurenne Chapman informing him that she did not appreciate the claimant venting and raising his voice unprompted and that she felt unsettled and alarmed. In an email in response, the claimant apologised if he raised his voice and stated he did not intend to air his frustrations at her. The claimant subsequently saw Laurenne Chapman and apologised again and stated he had no intention of blaming her for any of it.[25]On 20 March 2018, Gil Harvey was informed by Simon Goodier that an incident had occurred between the claimant and Laurenne Chapman. Gil Harvey was informed that Laurenne Chapman had spoken to James Harrison about the incident.[26]By way of a telephone conference on the same day, Gil Harvey and Simon Goodier took advice from Sarah Styles, the Human Resources Business Partner, about whether there was sufficient information to begin a disciplinary investigation. Sarah Styles’ advice was that there appeared to be such sufficient information and advised Gil Harvey to speak to ER Services – the Human Resource helpline.[27]Gil Harvey spoke with Laurenne Chapman and asked her to send an email detailing what had occurred. Later that day Gil Harvey spoke with the ER Services team and was advised that notes should be taken of any investigation meeting and provided to the claimant.[28]Later that same day, Gil Harvey spoke with the claimant and informed him of the complaint. During that meeting Gil Harvey made reference to there being two witnesses but did not name them.[29]On 26 March 2016 Gil Harvey provided the claimant with notes entitled “Investigation Meeting”.[30]On 27 March 2018 Gil Harvey spoke to Neil Warburton, a witness to the incident. Gil Harvey also spoke with James Harrison who advised that he had not witnessed the incident but rather the aftermath about which he recounted that Laurenne was visibly shaken, upset and tearful.[31]On 3 April 2018 the claimant and Gil Harvey spoke and Gil Harvey became aware that the claimant had been unaware that the meeting of 21 March 2018 was a formal investigation meeting. Gil Harvey informed the claimant that he anticipated that the matter would progress to a formal disciplinary once his investigation had concluded.[32]On the same day Gil Harvey spoke with ER Services and was advised that he had not properly undertaken an investigation meeting and it would need to be undertaken again.[33]On 6 April 2018 Gil Harvey verbally invited the claimant to a meeting and informed the claimant at the outset that it was an investigation meeting. Alan Stell was present as a notetaker. The claimant asked whether a colleague could attend to support him and it was agreed. Gil Harvey sought to re-arrange the meeting for later that day. The claimant subsequently reported sick and the meeting did not take place.[34]At 17:37 on 6 April 2018 Gil Harvey sent the claimant an email inviting him to an investigation meeting on 9 April 2018, the next working day. Gil Harvey subsequently spoke to ER Services and was advised that this was sufficient notice for a meeting.[35]On 9 April 2018 the claimant and Gil Harvey met, and the claimant was provided with copies of statements from Laurenne Chapman and Neil Warburton. During that meeting Gil Harvey made reference to discussions between him and the claimant in their one-to-one meetings and gave examples of when he thought the claimant had gone too far in challenging other people. The claimant challenged discrepancies between the two statements and denied that the allegations were true.[36]On the same date, Gil Harvey provided the claimant with a letter inviting him to a disciplinary hearing on 11 April 2018. In that letter Gil Harvey made reference to the fact that he may determine the sanction at that hearing.[37]On 11 April 2018 the disciplinary hearing took place. Ian McCutcheon was the manager charged with determining the matter. The allegation of misconduct was not proven and no further action was taken against the claimant.[38]Gil Harvey called the claimant later that day and left a voicemail message stating that he was pleased at the outcome and was looking forward to drawing a line in the sand. Grievance[39]On 16 April 2018 the claimant drafted a grievance letter which he gave to Simon Goodier. On the same day, the claimant was interviewed for the role of Senior Asset Manager by James Harrison but was unsuccessful.[40]On 1 May 2018 the claimant met with Simon Goodier and was told that on 20th March 2018 James Harrison had met with Simon Goodier, Gil Harvey and Sarah Styles about Laurenne Chapman’s complaint.[41]The claimant was asked to mediate with Gil Harvey but said that the matter had gone too far and asked if he could be given a different line manager. The claimant was told that this was not possible and so he submitted his grievance.[42]On 14 May 2018, the claimant submitted a second grievance letter.[43]On 16 May 2018 the claimant met with the grievance handler, Andrew Pope, to discuss his grievance. The claimant's grievance contained complaints about:• the manner of the disciplinary investigation and the decision to progress to a formal disciplinary hearing;• the outline in the “Frequently Asked Questions” restructure programme not being followed;• the claimant had receiving negative feedback following his interview;• the claimant’s performance rating being marked down;• Gil Harvey using his position to bully the claimant and an abuse of power;• a collusion between Gil Harvey and Laurenne Chapman in regard to the complaint;• a general deterioration in Gil Harvey and the claimant's relationship;• the claimant's health being affected by the allegations.[44]During the meeting, Andrew Pope advised the claimant that he would focus on the policy and procedure aspects of the grievance and provide an outcome.[45]On 17 May 2018 Andrew Pope spoke with Gil Harvey about the disciplinary investigation and outcome. On the same date Andrew Pope informed the claimant that he had reached an outcome which would be conveyed to the claimant at a meeting on 23 May 2018.[46]On 23 May 2018 the claimant met with Andrew Pope and was provided with an outcome letter which stated that his grievance had been upheld. The outcome letter was produced on a template that stated: “GP9 – Grievance Outcome (upheld) final.”[47]In that letter Andrew Pope stated that the claimant had been treated unfairly in regard to the process of the investigation that was undertaken. Andrew Pope also concluded that the outcome of the investigatory meeting had been prejudged and the invitation to the disciplinary was incorrectly worded.[48]However, Andrew Pope also found that he did not accept that the claimant had been deliberately unfairly treated and that any unfairness had been as a result of lack of experience of his line manager. Andrew Pope recommended that he himself facilitate mediation between the claimant and Gil Harvey.[49]On 25 May 2018 the claimant wrote to Andrew Pope and asked for clarification as to whether in fact his grievance had been upheld. The claimant asserted that there had been a failure to deal with allegations of bullying and other issues.[50]On 31 May 2018 Andrew Pope sent a second outcome letter confirming that the claimant's grievance had been partially upheld and clarified that he could find no evidence to suggest that Gil Harvey had bullied the claimant.[51]On 5 June 2018 the claimant submitted an appeal to the Appeal Manager, Sue Parker-Tantush, and it was agreed at the meeting on 13 June 2018 that the claimant was seeking a review of:(1) Events that happened during the investigation that were not disclosed;(2) That the grievance process was not followed correctly;(3) That the outcome was not fair and reasonable, as the process was not followed because of malintent.[52]On 25 June 2018, Sue Parker-Tantush produced an outcome letter which partially upheld the claimant’s appeal. It was held that the grievance process had not been followed properly and that the claimant had a fair expectation to receive a letter that addressed specific points. Sue Parker-Tantush also agreed that there had been a failure to follow a proper procedure during the disciplinary process but did not agree that this was because of malicious intent or bullying. It was also found that the outcome of the investigatory meeting was not predetermined.[53]Finally, Sue Parker-Tantush commented that the interview feedback was given because of the claimant's general conduct and performance in the recruitment interview. The claimant was also advised that mediation between him and Gil Harvey was appropriate and could be arranged between an independent third party. At the end of the letter the claimant was invited to a previously arranged meeting on 13 June 2018[54]The claimant did not attend the meeting and resigned from his position on 27 June 2018. In his resignation letter the claimant cited: “No choice but to resign in light of:• Bullying suffered at hands of Gil Harvey;• Abuse of power and malicious handling of a disciplinary investigation against me;• Company’s failure to follow correct procedure during disciplinary process;• Company’s mishandling of failure to follow correct procedure and failure to uphold grievance;• Decision to force me to continue to work under Gil Harvey despite his conduct and the findings of the grievance;• The company’s overall treatment of me during the disciplinary and grievance process.” Submissions Respondent’s Submissions[55]The respondent submitted that there was not a fundamental breach of contract. During the restructure process the claimant was treated fairly and offered his role within the company. The respondent sought to deal with those who had made a preference for the Regional Portfolio Manager role first before subsequently dealing with any other applications. The fact that the claimant was in competition with others when the Senior Asset Manager role was determined, was not a detriment because he was no longer at risk of redundancy.[56]The respondent contends that different people have different perceptions and an investigator needs to gather evidence to determine what happened on receipt of a complaint. The complaint was not malicious and false: Laurenne Chapman had emailed the claimant to complain. The respondent contends that the claimant has accepted there was a discussion about the restructure. Laurenne Chapman was raising serious concerns and the respondent was entitled and obliged to do an investigation. The difference between Laurenne Chapman’s email and statement related to the different recipients.[57]The respondent submits that the errors in the disciplinary process have been blown out of proportion. The policy was adhered to and in fact, Gil Harvey went over and above the policy by formally inviting the claimant to an investigatory meeting and allowing him to have a representative present.[58]It is submitted that whilst the claimant might disagree with Laurenne Chapman it did not make the complaint malicious, and given Gil Harvey knew they were friends outside of work, he was obliged to investigate. The respondent contends that the claimant is expecting a best practice but the respondent did enough, certainly to comply with the ACAS Code of Practice. Gil Harvey decided to proceed in light of his earlier discussions with the claimant and was entitled to have these factors in his mind when making his decision. The claimant was subject to an independent disciplinary hearing and no sanction was applied.[59]The respondent submits that the case of Assamoi is relevant in that the Employment Appeal Tribunal said that there is an opportunity for an employer to right defects that have yet to amount to a fundamental breach of contract. The respondent submits it was not feasible to say that the claimant and Gil Harvey could not work together. There was nothing that Gil Harvey did that was so serious to stop the relationship, in fact it was the opposite.[60]In the case of Blackburn the Employment Appeal Tribunal highlighted that there are various breaches of grievance procedure but not all would be a fundamental breach of contract.[61]The respondent did not ignore the claimant and in fact the grievance was partially upheld at the first stage and on appeal. It is accepted by the respondent that there were procedural breaches and the matters were not responded to on an individual basis. However, Andrew Pope did not ignore the allegation of bullying and dealt with those issues when concluding that the claimant had been subjected to an unfair procedure. Andrew Pope dealt with the thrust of the claimant’s grievance and provided clarification.[62]The appeal dealt with the three points that were agreed with the claimant and Sue Parker-Tantush spoke with Sarah Styles, as to why the claimant was singled out for feedback. There was no need to speak to the Regional Portfolio Managers. The respondent contends that behaviour and conduct were the same thing and this was not news to the claimant. It was clear during the appeal Sue Parker-Tantush was going above and beyond policy to redress the claimant's concerns.[63]The respondent contends that any fundamental breach, if found, did not cause the claimant to resign. The respondent pointed to the claimant's own documents where he stated that his relationship with Gil Harvey was at an end because he was a bully. The respondent was of the view that even if the grievance had been responded to line by line, it would not have given the claimant what he wanted, which was a move away from Gil Harvey. The respondent is of the view that the claimant wanted vindication and a finding that Gil Harvey was a bully and that this was something that the respondent was not able to give.[64]The respondent confirmed that the claimant performed a niche role and it was not easy to move him between the business. The respondent does not believe that the outcome letter was the last straw: it had partially upheld the claimant's appeal. The claimant did not attend the meeting to discuss the matter further. The resignation letter makes no direct reference to the appeal itself. Claimant's Submissions[65]The claimant submits that the “Frequently Asked Questions” document was poorly worded.[66]There was no evidence of the allegations made by Laurenne Chapman other than her statement which is contradictory to that of Neil Warburton. The claimant submits he found another witness who was not spoken to. The claimant highlighted that James Harrison was not spoken to and has not been asked to give a statement to the Tribunal.[67]The claimant submits that the lack of investigation and inconsistency was understood by the disciplinary officer and this is why there was no further action. The claimant contends that it never crossed Gil Harvey’s mind that the claimant could be innocent. Gil Harvey had the forensic capability to go through the evidence and reach a different conclusion.[68]The claimant submits that the grievance was poorly handled and there was evidence of non disclosure. The policy does not mention an outcome meeting and neither party took notes. All were potentially aware where the grievance could end up i.e. an Employment Tribunal, but no notes were taken.[69]The claimant contends that Gil Harvey has provided selective notes which only support his witness statement. The claimant is of the view that Gil Harvey did not appear to care and he said he would have done the same again given the circumstances.[70]The claimant had an expectation in accordance with the policy that the outcome letters would deal with each issue raised. The respondent’s case is a house of cards and each incident, whilst not significant, when added together is cumulative. The claimant believes that had Alan Stell been spoken to, the Tribunal would not have occurred.[71]The claimant contends that there is previous evidence in a related Employment Tribunal case that shows the respondent has form for this type of behaviour.[72]The claimant believes Gil Harvey has demonstrated stubbornness and pigheadedness and he needed a boss who he could work with and trust who would have his back. The claimant could not believe that Gil Harvey would think he was capable of treating another colleague in this way and that if he did, any trust and confidence had come to an end. Discussion and Conclusions – Constructive Dismissal[73]The primary question was whether the claimant's resignation could be construed as a dismissal. In his claim form, the claimant identified six matters which he said amounted to a breach of trust and confidence, either individually or collectively.[74]The test to be applied is found in the Malik decision of the House of Lords. It is that the conduct of the employer must be without reasonable and proper cause and must, when viewed objectively, be calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee. It is a demanding test. It is not enough to establish that an employer has acted unreasonably. It must be conduct which shows that the employer is effectively abandoning the contract and altogether refusing to perform it. (1) Restructure Failings[75]Whilst the claimant accepted that a restructure of the business was appropriate, the main thrust of his complaint appears at point 1(g) of the claim form: that his application for the role of Senior Asset Manager had not been progressed despite the respondent actively selecting colleagues for redundancy. The claimant's real objection was that the Senior Asset Manager role had been opened up to the general workforce on 1 December 2017.[76]Sarah Styles provided evidence that because all Regional Portfolio Managers had selected that role as their first preference, it was appropriate therefore to run a pool for selection for redundancy first before dealing with any applications for new roles which would only be relevant should somebody be selected for redundancy from the Regional Portfolio Manager role.[77]The wording of the “Frequently Asked Questions” gave the claimant an expectation that the respondent would in fact consider applications for alternative roles before running a redundancy selection process. However, the respondent had to deal with the situation in which it found itself after all Regional Portfolio Managers had expressed a preference to stay in the role. The respondent did not consider it appropriate to consider any alternative applications until it had selected a person at risk of redundancy from that pool. The claimant's colleague was selected for redundancy but offered an alternative position. That colleague chose not to take that alternative role and exited from the respondent’s business.[78]Sarah Styles was clear, and corroborated by Gil Harvey’s evidence, that had there been two successful candidates in the role for Senior Asset Manager and one was at risk of redundancy, the candidate at risk of redundancy would have been successful with the role. As it was, the claimant was no longer at risk of redundancy when he was interviewed for that role and it was a competitive process.[79]The Tribunal is of the view that the respondent did not act without reasonable and proper cause. The respondent was faced with a dynamic restructure situation in which, perhaps unexpectedly, all Regional Portfolio Managers had cited that role as their first preference. The respondent was of the view that after that redundancy selection process had been completed, any colleague at risk of redundancy would be offered an alternative role, whether it be one they had as a second preference or applied for by way of alternative.[80]In any event, it cannot be said that this conduct seriously damaged the relationship of confidence and trust between the claimant and the respondent. The respondent was not abandoning the contract but rather conducting a fair process and meeting its commitment to save jobs. (2) Gil Harvey Bullying[81]The feedback meeting on 2 January 2018 was at the behest of Sarah Styles and Alan Stell. The claimant's line manager, Gil Harvey, was only in attendance in his line manager capacity.[82]The claimant complains that he was singled out to have feedback. The other Regional Portfolio Managers were given a choice of whether to receive feedback. However, the claimant was not afforded the same choice. The respondent had concerns about the claimant's behaviour at interview and required that feedback be given. In so doing the respondent acted with reasonable and proper cause in response to the claimant's behaviour at interview.[83]Gil Harvey’s comments in the subsequent one-to-one compounded the claimant's unhappiness about receiving feedback. As a result, the claimant felt that his grade at the end of year was “down”. In fact, over the previous three years, the claimant's average mark was “achieving”. On only one occasion had the claimant received the “exceeding” grade. Therefore despite the respondent’s concerns in regard to the claimant's behaviour at interview and throughout the restructure process, he was still given an “achieving” grade. The Tribunal cannot see how this can be behaviour which, when viewed objectively, was calculated or likely to destroy or seriously damage the relationship of confidence and trust between the claimant and the respondent. Laurenne Chapman Complaint[84]The claimant contends that the Laurenne Chapman complaint was malicious. The Tribunal finds that this was not the case. The claimant received an email from Laurenne Chapman shortly after the event in which she set out her concerns and he responded within a short period of time, accepting that he may have unintentionally spoken out of turn. The claimant subsequently spoke to Laurenne Chapman to ensure that no offence had been meant. The Laurenne Chapman complaint was not without foundation.[85]It is easy to understand why, from Laurenne Chapman’s email, that the claimant considered the matter had been dealt with. However, the Tribunal finds that Laurenne Chapman did speak with James Harrison after the event, and it was he who raised it with Simon Goodier, who subsequently raised it with Gil Harvey. It is not the case that Gil Harvey sought out complaints about the claimant.[86]It was reasonable and proper for Gil Harvey to speak to Laurenne Chapman in light of the feedback that the claimant had been given following his interview.[87]The decision to investigate the Laurenne Chapman complaint was not likely to destroy the trust and confidence between the claimant and the respondent. (3) Respondent’s failure to follow the correct disciplinary process[88]Gil Harvey did not actually breach the respondent’s disciplinary policy despite the views of the subsequent grievance handlers. There was no requirement within the policy to send an invite letter or be accompanied to an investigatory meeting. The ACAS Code of Practice does advise that the subject of such a process should be given advance warning, which by 6 April 2018 the claimant had received: firstly, in the morning when Gil Harvey invited him into an investigation meeting and secondly, by way of letter that evening.[89]The advice given by the ER Team conflicted with the policy requirements and gave the claimant an expectation that the policy had not been adhered to.[90]James Harrison was not involved in the meeting on 20 March 2018. The meeting took place between Gil Harvey and Simon Goodier into which they invited Sarah Styles by way of a telephone conference. Gil Harvey was seeking advice as to whether he should in fact investigate. It is therefore clear to the Tribunal that Gil Harvey did not take the decision to investigate lightly or for any malicious or false intent.[91]The ACAS Code of Practice provides that the thoroughness and detail of any investigation will depend on the seriousness of the allegations of misconduct. This was not an allegation of gross misconduct and therefore the Tribunal finds that it was sufficient for Gil Harvey to speak to Laurenne Chapman, Neil Warburton and James Harrison. All potential witnesses had been spoken to before 9 April 2018 and before Gil Harvey took the decision to move to the next stage of the disciplinary process. Gil Harvey was clear that had the claimant brought any new evidence to the meeting of 9 April 2018, he would have reconsidered his position.[92]Gil Harvey was an inexperienced manager when it came to the disciplinary process. Gil Harvey had not conducted a discipline before this date. It was therefore an error of Gil Harvey to agree to to send the letter of 9 April 2018. Any suggestion that Gil Harvey would be responsible for determining the sanction following a disciplinary hearing was also an error.[93]The claimant has no complaint in regard to the disciplinary hearing itself and the conduct of Ian McCutcheon, and the same resulted in no further action being taken against the claimant. The Tribunal finds that for this reason any procedural errors in the disciplinary process were remedied by the disciplinary hearing itself. In accordance with the guidance provided by the Employment Appeal Tribunal in the case of Assamoi, any failures to follow the process did not amount to a breach of trust and confidence between the claimant and the respondent when the proceedings were viewed as a whole. (4) Respondent’s failure to follow the correct grievance procedure and uphold the claimant's grievance[94]The letter provided in response to the claimant's grievance by Andrew Pope does not follow the template suggested in the policy. The claimant had an expectation that it would. The claimant would have had a better understanding of the conclusion reached by Andrew Pope had the letter set out how Andrew Pope had dealt with his investigation during the grievance. The failure by Andrew Pope on 31st May 2018 to clarify his investigation in accordance with the templates provided by the respondent only compounded the claimant's concern that the grievance had not been properly handled.[95]At the meeting with the claimant on 16 May 2018 Andrew Pope did set out that he would be focussing on the process followed during the disciplinary investigation and the claimant was in agreement. Andrew Pope was clear in his evidence that he considered the allegation of bullying made by the claimant amounted to the way in which Gil Harvey had handled the disciplinary investigation rather than any separate incidents that needed to be investigated.[96]Andrew Pope concluded that Gil Harvey was not impartial because of his previous dealings with the claimant and therefore prejudged the outcome of the investigation. However, Andrew Pope did not consider this to be an act of bullying but rather a line manager who was too inexperienced to know that he could not deal with the matter impartially. The fact that Sarah Styles, who was an experienced HR Business Partner and had been involved in directing that the claimant receive previous feedback, did not point out the possible conflict to Gil Harvey is a failure of the overall HR advice given to Gil Harvey.[97]Whilst there was a failure to follow the templates and give specific responses to each allegation made by the claimant in the grievance, this did not amount to a fundamental breach that it was so serious to damage the relationship of trust and confidence. Andrew Pope’s overall view was that there was a failure to follow the disciplinary policy and bad HR advice. The same did not equate to deliberate bullying of the claimant.[98]The claimant’s evidence of a breach of contract in regard to the appeal letter appears to be solely focussed on the reference to a conduct issue in light of the feedback received on 2 January 2018. The claimant was aware that the respondent had an issue with his behaviour during his interview and this was the reason for the meeting on 2 January 2018. The reference to “general conduct and performance” in the appeal handler’s letter would not have been a surprise to the claimant.[99]The Tribunal does not accept that the phrase used by the appeal handler was sufficient to destroy or seriously damage the relationship of confidence and trust between the claimant and the respondent. It was not unreasonable given the feedback that the claimant had received on 2 January 2018. (5) The respondent’s maintenance of the employment relationship between the claimant and Gil Harvey[100]Both grievance handlers determined that Gil Harvey was an inexperienced line manager who had been poorly advised by HR. In light of this finding, both handlers, who were experienced managers, were of the view that having accepted the claimant's complaints that the disciplinary process could have been handled better, that mediation would be an appropriate resolution to preserve the employment relationship.[101]The claimant took a wholly different view. The claimant's distrust of management in general began in late 2017 when he was of the view that the restructure was not fairly handled. As the claimant's line manager Gil Harvey was the focus of the claimant's attention from a management point of view. By the time the claimant had submitted his grievance on 16 April 2018, following the feedback, and the decision to investigate the claimant, he had made the decision that he could no longer work with Gil Harvey regardless of the outcome of any grievance.[102]The suggestion of mediation was reasonable. This however, would never have been accepted by the claimant as the breakdown of trust and confidence between the claimant and Gil Harvey had occurred prior to 16 April 2018.[103]The Tribunal does not find that the suggestion of mediation was unreasonable such that it would seriously damage the relationship between the claimant and the respondent. The relationship was already damaged. (6) Respondent’s conduct during disciplinary grievance and appeal process[104]There is no doubt that the claimant found the disciplinary and subsequent grievance process stressful. The Laurenne Chapman complaint was valid and it was reasonable for the respondent to investigate. The process undertaken, whilst not perfect, was fair and any small procedural errors were rectified by the disciplinary hearing.[105]The grievance handlers dealt with a grievance which they considered was an allegation that the investigation itself and the breaches of any procedure, were acts of bullying. The complaint was not without foundation and had Gil Harvey been subjected to proper HR advice, it is probable that any procedural defects would not have occurred. The reference to the claimant's conduct was valid in light of the feedback he had received.[106]The claimant resigned because the grievance handlers did not agree with his view of Gil Harvey’s actions. The grievance handlers did not remedy what the claimant considered to be a fundamental breach of his contract. Gil Harvey’s actions, whilst in some areas procedurally incorrect, did not amount to a breach so likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee. He was investigating a genuine complaint which given the claimant's previous behaviour, was valid.[107]The respondent did not effectively abandon the contract and altogether refuse to perform it. The respondent went beyond its own disciplinary and grievance procedures in offering the claimant an opportunity to attend with a colleague and by offering meetings following each stage of the grievance process.[108]The claimant formed a view following the restructure of the business that he could no longer work with Gil Harvey in light of Gil Harvey’s view of the claimant and his behaviour. In summation about the Laurenne Champman complaint, the claimant expressed the view that he could not believe that Gil Harvey would think he was capable of such behaviour. This was evidence that the relationship between the claimant and the respondent had ended by 16 April 2018.[109]There was not a fundamental breach of the claimant's contract during the disciplinary and grievance processes. The claimant had formed his own view that there had been a fundamental breach during the restructure of the business, the subsequent meetings he had with Gil Harvey and the instigation of the disciplinary process by the same manager. This was the reason the claimant resigned.[110]However, this not a case where the cumulative effect of all of these incidents ending with the grievance appeal outcome, could be said to be the “last straw” which justified the claimant’s resignation. The Tribunal does not find that, whether each incident is viewed individually or as a whole, there has been a fundamental breach of contract to amount to constructive dismissal.[111]The Tribunal finds that the claimant's claim for constructive dismissal fails and is dismissed. Employment Judge Ainscough Date: 27th August 2019