Mr L Shuttleworth v Williams Motor Co (Holdings) Ltd: 2415130/2021

EMPLOYMENT TRIBUNALS

Case No 2415130/2021

Between

Mr L ShuttleworthClaimant

Williams Motor Co (Holdings) LtdRespondent

Before

Tribunal Judge

In person for claimant

Mr Graham Jones for respondent

Date 14 July 2022

JUDGMENT

[1]At the hearing before me, prima facie, the Claimant claimed that he had five claims, of which only the claim for unfair dismissal (by way of a “constructive dismissal”) proceeded.

[2]In relation to the other four claims:a. I determined that the Tribunal did not have jurisdiction to decide a claim of “defamation of character”;

b. The claim for “whistle-blowing” had previously been dismissed by

REASONS

[1]These are the Written Reasons for the Judgment given orally with reasons at the conclusion of the hearing on 14 July 2022; my oral decision having been followed with a short judgment prepared by me on 21 July 2022 and which was sent by the Tribunal staff to the parties shortly thereafter.

[2]The Claimant had presented his claim form against the Respondent on 9 December 2021. The Claimant’s complaints were somewhat unclear, as a result of which, on 14 March 2022 the Tribunal wrote to the Claimant forwarding a “Request for Comments” prepared by Employment Judge Allen (Judge Allen had also amended the title of the proceedings). The “Request for Comments” letter asked the Claimant to clarify what his case was about. The Claimant had responded on 14 April 2022, as a result of which Employment Judge Allen had formally indicated, in a letter dated 4 May 2022, that the claim was about an alleged fundamental breach of trust and confidence. However, Judge Allen also decided that there was no evidence which amounted to a whistle-blowing or discrimination claim (other allegations that the Claimant had referred to), and that in fact, the Claim ought to be properly characterised as a constructive dismissal claim. The parties to the litigation

[3]The Claimant was employed by the Respondent as a valeter and driver from 23 January 2018 until 11 November 2021. The Claimant attended the Tribunal as a litigant in person. He gave evidence with my help and was asked cross-examination questions by the Respondent’s representative. The Respondent was/is a used car dealership. The Respondent was represented by Mr Graham Jones.

Issues

[4]No doubt because the Claimant was not legally represented, it was not immediately clear at the beginning of the hearing before me on 13 July 2022 what the case was actually about, and what the hearing should deal with (it seemed that the Claimant had not understood the contents of the Tribunal letter dated 4 May 2022 which contained Judge Allen’s direction that the case should be characterised as a constructive dismissal claim). I say that the Claimant had not understood because, at the beginning of the hearing on 13 July 2022, the Claimant drew my attention to his document headed “Summerises” [sic] [33] Where the claims are listed as:• Constructive dismissal;

• Defamation of character;

• Whistle blowing;

• Being treated less favourably; and

• Mental stress and anxiety (which the Claimant said was the main claim).

[5]At the beginning of the hearing on 13 July 2022, I listened to submissions and then decided that:a. The claim for constructive dismissal could go ahead;

b. The claim for defamation of character was not one recognised by the Tribunal;

c. Judge Allen had already dismissed any whistle-blowing allegation due to lack of evidence;

d. Judge Allen had already dismissed any allegation of the Claimant having been treated less favourably or discriminated against due to lack of evidence and in circumstances where there was no evidence whatsoever that that Claimant was relying on any claimed protected characteristic; and finally

e. I found that the Claimant’s “mental stress and anxiety” claim allegations appeared to be a very specialised personal injury allegation, of the type that would be issued in the Country Court for tort arising out of negligence. I explained to the Claimant that this type of claim was not within the scope of what I could/would decide. (I record that I explained what a tort claim was in very general terms to the Claimant, but was at pains not to advise him. I indicated that such claims were difficult and did not give any indication of whether he had an arguable case. I mentioned that he might like to take independent specialised legal advice on that point as a separate matter).

[6]That meant that the issues for me to determine were(i) whether the Claimant’s resignation should be construed as a dismissal; and

(ii) if I found that the resignation was a dismissal, then whether it was fair or unfair under part X of the Employment Rights Act 1996 applying the general test of fairness in section 98(4). The Claimant’s claims

[7]Despite the lack of clear claims, lack of witness statement and with the challenge posed by the fact that the Claimant’s claims were scattered across multiple documents, the Claimant’s complaints and the reasons why he suddenly resigned seem to be, in summary:a. He was being asked by the Respondent to take on extra responsibilities which he says were outside his role and above his pay grade;

b. The Claimant was being taken advantage of by the Respondent because the extent of his extra work and responsibilities equated to him fulfilling the higher paid role of “PDI Controller”.

c. He was required to work extra hours, including weekends;

d. There was an occasion which was a “last straw” when the Claimant had an exchange with Mr Jewell when words and unprofessional language were exchanged. After this, the Claimant “walked out”, went on sick leave for a short time and then resigned. The Respondent’s response

[8]The Respondent has always firmly denied that the events leading up to the Claimant’s resignation amounted to constructive dismissal. It is part of the Respondent’s defence of the allegations that they have and had a robust grievance procedure, but that the Clamant did not give the Respondent opportunity to consider his grievance prior to his resignation. They would have considered his grievance after the day that he “walked out”. 9. [At page 68 of the bundle] there is evidence of an undated text message that Moynihan sent to the Claimant on or around 2 December 2021 which says “We have declined an early conciliation through ACAS, this however does not take away from the grievance process or concluding the process. If you wish to attend the meeting with Owen tomorrow please let me know. If you do not wish to attend we will continue with the grievance process, carry out any investigations deemed necessary and provide you with a response based on the information you have provided to us and without the benefit of taking into account anything you would like to add”. It was acknowledged at the hearing that the Claimant had had excellent appraisals and was a respected member of the team. In effect, the evidence was that the Respondent was surprised and shocked when the Claimant resigned.

Evidence

[10]The Claimant gave evidence with my help and was asked cross-examination questions by the Respondent’s representative. The Respondent provided two witnesses, Mr Paul Jewell and Mr Nick Wilson. The Claimant asked them crossexamination questions with some help from me in formulating his questions.

[11]At the hearing I was provided with a bundle which was 99 pages long, helpfully organised by Mr Jones, and which included the material from both parties. At no point did the Claimant criticise the bundle. The Claimant did not ask to add any documents during the hearing. The Respondent had also sent in to the Tribunal (under cover of a letter dated 8 July 2022), a short witness statement from Mr Wilson dated 7 July 2022 and a short witness statement from Mr Jewell dated 6 July 2022. These witness statements referred to other documents within the bundle, which were not formal witness statements, but which formed part of their evidence. Any reference to page numbers in these Reasons is a reference to that bundle unless otherwise indicated.

[12]Despite having been asked to do so by way of Tribunal Directions, the Claimant had never provided a witness statement. This made understanding his case difficult and no doubt made it difficult for the Respondent to prepare. Nonetheless, it was identified at the hearing that the Claimant’s evidence was in fact contained in documents at bundle pages 30 to 33 and 68A to 68H inclusive. Mr Jones agreed that this should be treated as the Claimant’s witness evidence and the Claimant drew my attention to, and clarified, the matters in those documents when he gave evidence under oath. Despite the Claimant not having formally provided a witness statement, supported by a signed statement of truth, and in breach of the Tribunal’s formal directions dated 6 January 2022 [23], Mr Jones did not object to the Claimant giving oral evidence. The Claimant’s witnesses

[13]The Claimant did not bring any witnesses to the hearing, but he asked for permission to rely on letters from two friends and ex-colleagues, Mr Alan Lewis [45] and Mr Spencer Lavis [46-49]. The Respondent objected to the Claimant relying on people who did not attend the hearing to answer their questions. I told the Claimant that I would read the letters, but that I could not ascribe much weight to the letters because the evidence of Mr Lewis and Mr Lavis had not been tested under crossexamination. Relevant Legal Principles

[14]The unfair dismissal claim was/is 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.”

[15]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.

[16]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

[1998] AC 20

the House of Lords considered the scope of that implied term and Lord Nicholls expressed it as being that the employer would not: “…without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”

[17]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.”

[18]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.

[19]As set out above, Judge Allen indicated that the claim should be characterised as one of constructive dismissal. Before I look at the evidence and decide whether or not the evidence amounts to the Claimant’s allegation of constructive dismissal, I have to consider the legal definition of constructive dismissal. I note that dismissal of an employee by their employer is usually at the instigation of the employer. In other words, the employer will terminate the contract of employment by their words or actions. That is not what is alleged here.

[20]There may be circumstances, however, where the employer does not terminate the contract, but behaves in such a way as to entitle the employee to resign and to claim that they have effectively been dismissed as a result of the employer’s bad conduct. A resignation in such circumstances may amount to a constructive dismissal.

[21]In considering the case I had regard to what Lord Denning said in the case of Western Excavating v Sharp and note that there are three essential requirements for a constructive dismissal:• there must be an actual or anticipatory breach of contract by the employer which is a fundamental or repudiatory breach, ie one that goes to the root of the contract so as to be sufficiently serious to justify the employee's resignation;

• the employee must resign in response to the breach, rather than for some other reason;

• the employee must not delay too long in terminating the contract in response to the employer's breach, otherwise the employee may be regarded as having elected to affirm the contract and the right to rely the employer’s breach would be lost.

[22]It should be noted that unreasonable behaviour by an employer will not of itself be enough to allow an employee to resign and claim to have been constructively dismissed. The behaviour must be so serious as to amount to a fundamental breach of the employee’s contract of employment. In the letter dated 4 May 2022 from the Tribunal it is recorded that Employment Judge Allen indicated that the Claimant’s response to questions posed by the Tribunal in correspondence potentially amounted to an allegation that there had been a “fundamental breach of the duty of trust and confidence” between the Claimant and the Respondent.

[23]I note that an employee must resign without notice if they wish to argue that they were constructively dismissed. This is because, at common law, the giving and working of contractual notice by the employee is likely to be seen as affirmation of the contract, resulting in the employee losing the right to rely on the employer’s previous repudiatory breach. Relevant Findings of Fact

[24]Having heard from the three witnesses in person (including the Claimant in his own case), and having considered all the documents, I found that the relevant facts were as set out below. I have omitted from this summary any matters raised in the evidence which were not relevant to deciding whether the dismissal was fair or unfair.

Background

[25]This is the relevant chronology of agreed events in the case. On 23 January 2018 the Claimant commenced his employment with the Respondent [35 bundle]. 24 January 2018 is the date of a job description document signed by the Claimant [75/6] and 9 July 201 is the date of his statement of terms and conditions of employment signed by the parties [69-74]. In January 2021 there was an email saying that the Claimant’s latest basic salary was £19,275 and, in addition, he was included in the company bonus scheme with target earnings for 2021 of £20,175.

[26]In the late summer1 of 2021, the Claimant took on additional duties because his colleague Mr Spencer Lavis was absent. The Claimant paid a bonus of £501.71 for this. On 2 November 2021. The Claimant raised a grievance in respect of his employment by an undated letter [79/80] which was delivered to the Respondent on 2 November 2021. On 5 November 2021, Ms Sue Moynihan (Human Resources Manager) acknowledged the Claimant’s letter and invited the Claimant to contact her to discuss his return to work. On 7 November 2021 ACAS received the Claimant’s EC notification. On 11 November 2021, the Claimant wrote a letter of resignation and the Respondent agrees that this resignation letter marks the end of his employment on the basis that the Claimant resigned.

[27]On 15 November 2021 ACAS contacted the Respondent and 1 December 2021 was the date of issue of the ACAS certificate. On 2 December 2021 the Respondent invited the Claimant to attend a grievance meeting [68]. The Claimant declined. On 9 December 2021 the respondent held a meeting when minutes were taken. The meeting was treated as a grievance meeting despite the Claimant not being present.

[28]In terms of the procedure at the Employment Tribunal, on 9 December 2021 the Respondent received the Claimant’s Claim Form. On 6 January 2022 a Notice of Hearing was issued which included directions for the future progress of the case. On 14 March 2022 the Tribunal wrote to the Claimant with a “Request for Comments” and also to say that