T Coull v Medicines and Healthcare Products Regulatory Agency: 3200608/2024
EMPLOYMENT TRIBUNALS
Case No 3200608/2024
Between
Tristan CoullClaimantMedicines and Healthcare Products Regulatory AgencyRespondent
Before
Employment Judge G. KingIn person for claimantMr A. Jones - counsel for respondentDate 13 June 2025
JUDGMENT
[1]The Claimant’s claim of constructive unfair dismissal is not well-founded and is dismissed.
REASONS
[1]By a Claim Form dated 9 March 2024, the Claimant brought claims of constructive unfair dismissal and for other payments (unlawful deduction from wages). He also listed a payment for “discrimination” as a remedy he was seeking. The unlawful deduction from wages claim and the discrimination claims were withdrawn on 7 August 2024.[2]The Tribunal was referred to various documents during the hearing. These were: 2.1. The 877-page bundle prepared in advance of the hearing as the main bundle. Pages from this bundle are noted in square brackets, e.g. [1]; 2.2. An OH referral, noted as pages 114 – 116, which was the complete document and should be substituted for those pages; 2.3. Page 505A, supplied separately to the main bundle; 2.4. There was also an agreed cast list and chronology.[3]The Tribunal heard witness evidence from the Claimant and from Mr Neil and Mr Sarwar on behalf of the Respondent.[4]References to witness statements are designated as witness initial followed by paragraph number, e.g. [TC 1] for the Claimant’s witness statement, paragraph one.
The Issues
[5]The agreed issues in the case are: 5.1. Did the Respondent refuse, disregard, ignore or obstruct the Grievance Policy and Procedure(s), thereby preventing the Claimant from exercising his right to raise a formal grievance on/after the following dates:- 5.1.1. 19 December 2023; 5.1.2. 22 December 2023; 5.1.3. 01 January 2024; 5.1.4. 05 January 2024; 5.1.5. 19 January 2024; 5.1.6. 29 January 2024. 5.2. If so, did this constitute a breach of the implied term of mutual trust and confidence. 5.3. If so, did the Claimant resign in response to that fundamental breach or did he resign for another reason? 5.4. Does the Claimant resigning with notice affirm the contract and lose the right to claim constructive dismissal? 5.5. Did the Claimant otherwise affirm any of the proven breaches of contract thereby losing the right to claim constructive dismissal? 5.6. If the Claimant was constructively unfairly dismissed did the Respondent fail to follow ACAS’s code of practice in handling the Claimant’s grievance? If so, was it was unreasonable.
Findings of Fact
[6]This is a case that largely turns on the legal interpretation of the events as they unfolded. There are factual disputes and differences of opinion, but the Tribunal only needs to make findings when these are relevant to the issues before the Tribunal. This section is therefore not a full history of the final six months of the Claimant’s employment with the Respondent, but only a summary of key facts and any findings on disputed facts that are relevant. The legal interpretation of non-disputed facts or findings made here are discussed in more detail in the ‘Deliberation’ section below.[7]The Claimant was employed by the Respondent between January 2017 and March 2024 as a Criminal Investigator and Accredited Financial Investigator. He had moved into this team having passed the necessary examinations and undertaken a residential training course.[8]Grant Powell was the Claimant’s line manager from 2017 to 2022. Christopher Berrow was the Claimant’s line manager after that date. Tariq Sarwar supported the Claimant while he was on sick leave due to the complaints the Claimant had raised about his line manager, Mr Berrow. Leon Neil was the HR Business Partner who dealt with the Claimant’s complaint. Nicola Wilson was the Claimant’s PCS Union representative.[9]During his 10 months working in the Financial Investigation Unit (“FIU”), the Claimant was still involved in previous criminal cases which had moved across with him from his previous role. He was also studying for two further examinations with the NCA namely Cryptocurrency and Restraint of Assets and running a project looking at the training needs of the team.[10]The Claimant’s evidence is that he was feeling overwhelmed with work and that he intended to immediately resign [TC 37]. He arranged to see his manager, Mr Powell, who was the acting operations manager in the absence of Mr Sarwar, who was on annual leave until the 18 October 2023. The Claimant travelled to see Mr Powell in person, as he felt it was not a conversation suitable for MS Teams meeting or a telephone call. The Claimant took with him his laptop, work mobile phone, ID passes and amongst other work items with the view of resigning from his position.[11]On 3 October 2023, the Claimant met with a colleague, in order to hand over an ongoing investigation. The colleague, Mr Graham, persuaded the Claimant not to resign. The Claimant also spoke to Mr Graham about his excessive workload, poor pay, and lack of leadership from Mr Berrow.[12]On 4 October 2023 the Claimant self-certified as sick [774 – 778]. He saw his Mr Powell on 9 October and send a fit note to Mr Powell via WhatsApp.[13]That evening he received a phone call from a colleague, Andrew Graham, which the Claimant wrote down as soon as he got home. Mr Graham is alleged to have said words similar to: “I have a few things I need to tell you, I have been thinking about this over the weekend and been toying with telling you or not, I spoke to Anne, my wife, and said I don’t think I should know this information nor should have been told this information, she agreed. I want to tell you that we had a team’s meeting with CB [Mr Berrow] and the whole team last week. He started the meeting by saying “lets talk about the white elephant in the room” CB and BG [Bruce Galbraith, a colleague of the Claimants] were both openly telling everyone that you have money problems and that your mortgage payments have gone up by £700 and that you were deeply worried by this and that your rentals have been having problems as their mortgages have too increased”[14]The Claimant says that Mr Graham also told him that Mr Berrow had said that the Claimant’s reasons for going sick were due to his finances; that the Claimant had left the police in 2017 with the same condition of stress; and that Mr Berrow felt “a grievance was coming”. The Claimant made notes of this on his laptop [514 – 515].[15]These alleged comments from Mr Berrow prompted the Claimant to make a formal complaint about Mr Berrow’s behaviour. On 10 October 2023 the Claimant spoke with an HR representative and on the 20 October 2023 provided a document entitled “document of information”.[16]Initially, the Claimant did not request a formal grievance process. He was content for HR to take the lead in deciding how the matter should be progressed. This is confirmed by his email of 19 October 2023 in which he says “I want to formally submit it to HR so you can gauge the contents and decide on the appropriate course of action” [87].[17]Mr Sarwar met with the Claimant in Norfolk on 25 October 2023. They discussed non-work-related matters and then the issues he was having at work in general terms, but did not go into the detail of his complaint. It was agreed that the Claimant would get back to Mr Sarwar with how he wanted to proceed.[18]The Claimant sent an email to Mr Neil on 28 October [119 – 121] regarding his complaint and asking HR to investigate. He also suggested that his complaint was time sensitive. He did not receive a response and so chased again on 31 October, to which Mr Neil acknowledged receipt [118].[19]At this time, the Claimant was signed off sick for one month [774 – 778].[20]The Claimant agreed to the informal process on 11 November 2023 [144]. The Claimant agreed that Mr Sarwar would conduct an investigation into his complaints.[21]The Claimant spoke to Mr Sarwar several times by phone, including at weekends and when Mr Sarwar was not working.[22]There was a meeting between the Claimant and Mr Sarwar at Whitlingham Country Park in Norwich on 15 November 2023. In evidence, the Claimant and Mr Sarwar gave vastly different account of what happened at this meeting, going down to the level of detail as to who bought the coffees first. What happened at this meeting does not form part of the issues that the Tribunal has to decide, nonetheless it is the Claimant’s case that Mr Sarwar “Mr Sarwar suddenly and expectedly barked “are you recording this conversation” whilst pointing at my phone.” [TC 73]. The Claimant’s case is that “he did this deliberately to unsettle me before such an important meeting” [TC 73]. The Claimant says this is proof that Mr Sarwar was “hostile” [TC 73] towards him, which supports the Claimant’s contention that Mr Sarwar had no intention of progressing his complaint to a formal stage later.[23]The Claimant’s account of what happened at the meeting does not seem to align with subsequent events. The Claimant and Mr Sarwar went for a walk after this meeting, which seems incongruous when the Claimant believed that Mr Sarwar was deliberately trying to “unsettle” him and was being: “hostile”. The Claimant’s email to Mr Sarwar on 20 December 2023 says: “I want to thank-you [sic] for your candour, kindness and friendship during informal process”. Again, this does not align with the Claimant’s contention that Mr Sarwar was: “hostile”. On balance, therefore, the Tribunal prefers the Respondent’s version of events as to how the meeting on 15 November took place.[24]At the meeting, Mr Sarwar asked the Claimant to say what he was looking for by way of outcome, but the Claimant was unable to answer what those were. His reasoning was that he did not know what the response to the allegations would be from Mr Berrow [511].[25]The Claimant’s own record of this meeting is that: “I was only at the stage of deciding whether I resign or stay. I said that the level of work involved in this role coupled with the grief from Mr Berrow it makes my salary not worth its while” [511].[26]On 4 December, the Claimant was signed off from work for a further month.[27]A third meeting between the Claimant and Mr Sarwar took place on 18 December at Ketteringham Hall in Norfolk [509 – 510]. At the meeting, Mr Sarwar outlined his proposals for a resolution of the Claimant’s complaint, as part of the informal process. The Tribunal does not need to make findings on what those proposals were. Nor does the Tribunal need to make findings on whether these proposals were reasonable, or likely to have resolved the complaint, as this does not form part of the of List of Issues. The Claimant did not agree with the proposed resolution.[28]At the meeting, the Claimant said that he was: “80% sure he will resign” [625] and: “70% of his reason for not returning to work are financial, 29% related to Mr Berrow and 1% related to something else” [636].[29]The Tribunal accepts the Respondent’s evidence on this issue, and finds these things were said as contemporaneously recorded. The Tribunal accepts the argument that there is no reason, given the efforts being undertaken to keep the Claimant in employment with the Respondent, for those entries to be fabricated. The Claimant denies saying these comments were said but has no explanation as to why this would be recorded in contemporaneous notes if it were not so. The suggestion that any of these notes were fabricated was not put to any of the witnesses.[30]There are other areas in which the Claimant’s witness evidence differs from what the contemporaneous documents show was the reality. One example is [TC 123, x], where the Claimant says: “On 19th January 2024 I asked TS whether the informal resolution was complete. This email and question went unanswered”.[31]The email being referred to is at [259]. The entirety of the email is: “Dear Tariq Just emailing to confirm my understanding following todays ms teams meeting in company with my rep Nicola, that you have concluded your informal resolution enquiries. You have reiterated to me your findings which largely remain intact and unchanged from our meeting back on the 18th December 23 (with maybe a 1 or 2 additions following my report from the 1st January 24). KR Tristan Coull”[32]There is no question in this email. It is a statement of what the Claimant understands to be the case. It does not invite a response, and it is unclear what response the Claimant would have expected to have received from Mr Sarwar. The Claimant’s witness statement does not accurately represent what actually happened. For this reason, the Tribunal prefers the evidence of the Respondent on the statements made and recorded at [625] and [636][33]Later on 18 December 2023, the Claimant sent an email to HR, requesting an online meeting [152]. This email went unanswered. The next day, the Claimant send an email attaching a document entitled “formal grievance” [154].[34]This document was amended [186 – 208] and the Claimant sent this by email to Mr Neil and Ms Wilson on 22 December 2023 [184], then amended again [213 – 236] and sent to Mr Neil and Ms Wilson by email on 1 January 2024 [209].[35]The Claimant chased for a response on 4 January [240] and received an email in reply on 5 January [237 – 238]. Also on this day, Mr Neil discussed the matter with Mr Sarwar. Mr Neil suggested that Mr Sarwar met with the Claimant to discuss why the Claimant was unhappy with Mr Sarwar’s proposals for a resolution [LN 56].[36]In his witness statement, Mr Neil refers to trying to find a Decision Manager (“DM”) to hear the Claimant’s grievance. His statement suggests a DM was being sought around December 2023 (LN 45). He refers to difficulties finding one as it was the Christmas period and various members of staff who could have undertaken this role were on annual leave. Under cross-examination, however, he said he was: “thinking about instructing one” before Christmas 2023, and that he only: “asked his team to look for a DM during sometime during January 24”. A decision manager still had not been found by 13 February 2024 (which is after the Claimant had resigned) [320].[37]On 13 January, the Claimant sent an email to Mr Sarwar, copying in Mr Neil and Ms Wilson, setting out what he required as part of the informal resolution, and well as asking for further information and disclosure of emails [298 – 300].[38]The meeting that Mr Neil had proposed between Mr Sarwar and the Claimant took place on 19 January. The Claimant’s view was that the proposals for resolving his complaints were largely unchanged from those put forward on 18 December, and he did not agree with them. Following this meeting, the Claimant sent an email to Mr Sarwar, copying in Mr Neil and Ms Wilson, saying it was his understanding that the informal process had concluded.[39]On 26 January 2024, Mr Sarwar sent the Claimant an email [271] with an attachment titled: “Return to Work Plan” [272]. There was no mention of flexible working arrangements or a phased return.[40]Mr Sarwar made an OH referral for the Claimant on 26 January [266 – 267]. The Claimant disagreed with how the reasons for the referral were described on the referral form. He replied to Mr Sarwar regarding this [324] on 29 January. The email says: “I don't need to see further versions of this report to OH, I just request that this email chain is attached to the form”. The Claimant’s witness statement at [TC 117] says: “I specifically requested that my notes to be attached to the OH referral”. By this, he must be referring to his email of 29 January, as the Claimant emailed Mr Neil on 20 February, following a call with the OH doctor, to raise his concern that his email of 29 January had not in fact been passed on to the OH doctor. There is nothing in the email at [324] that refers to any other notes being forwarded to OH. The Tribunal finds that the Claimant’s email of 29 January was not forwarded to OH as he had requested.[41]The Claimant resigned on 10 February 2024.[42]The Claimant’s notice period was one month, and he remained signed off work due to sickness for all of this time. He asked Mr Sarwar not to contact him regarding work-related matters when he was off sick [333]. Relevant Law Constructive Dismissal
Relevant Law
[43]A claim of unfair dismissal is brought under Part X of the Employment Rights Act 1996. The relevant part of Section 95 is 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.”[44]It is for the Claimant to satisfy the Tribunal that they have been constructively dismissed in terms of section 95(1)(c) ERA. Otherwise, the employment is treated as having terminated as a result of resignation which is not treated as a dismissal.[45]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. It is not enough for the employee to leave merely because the employer has acted unreasonably; its conduct must amount to a breach of the contract of employment. ‘Trust and Confidence’[46]There is implied in every contract the fundamental term of trust and confidence. It is a fundamental breach of contract for an employer to conduct itself in a manner which impinges on the relationship in a way in which, looked at objectively, is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.[47]In Malik and Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 the House of Lords considered the scope of implied term of trust and confidence 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.”[48]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.”[49]Not every action by an employer which can properly give rise to complaint by an employee amount 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, namely conduct must be such that the employee cannot be expected to put up with it and the employer demonstrates by its behaviour that it is abandoning altogether to perform the contract.[50]The conduct of the employer must be such as to destroy or seriously damage the relationship, and there must have been no reasonable and proper cause for the conduct.[51]The Court of Appeal has deprecated the use of loose language in some cases which may appear to extend the scope of the implied term (into, for example, an obligation of 'fair dealing). It is not a simple obligation to act fairly: North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ. 387, [2019] IRL.R 570, para 115.[52]The approach that the Tribunal is required to adopt is to apply the language of the House of Lords in Malik: see O'Brien v Transco plc (formerly BG plc) [2002] EWCA Civ. 379.[53]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 12-14): “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.”[54]The legal test requires looking at the circumstances objectively — i.e. from the perspective of a reasonable person in the employee’s position, whether the employer has clearly shown an intention to abandon and altogether refuse to perform the contract: Tullett Prebon plc v BGC Brokers LP & Ors [2011] IRLR 420 (CA). An employee is not justified in leaving employment just because an employer has acted unreasonably: Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908 (CA).[55]In Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347, [1981] ICR 666 it was held that upon a consideration of whether the employer is in repudiatory breach of the contract of employment it is necessary 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 the employee cannot be expected to put up with it. The test is not whether the employee has subjectively lost confidence in the employer but whether objectively the employer's conduct was repudiatory.[56]Equally, the test does not depend on the subjective intentions of the employer (Leeds Dental Team v Rose [2014] ICR 94, EAT).[57]Further, the Tribunal must focus on the employer’s conduct not that of the employee: Tolson v Governing Body of Mixenden Community School [2003] IRLR 842 (EAT). Thus, when determining whether there had been a repudiatory breach by the employer, it was held in Nelson v Renfrewshire Council [2024] EAT 132 that it would be an error of law to attach any weight to the failure to exhaust an employer’s grievance process.[58]A constructive dismissal is not necessarily unfair (Savoia v Chiltern Herb Farms Ltd [1982] IRLR 166; Buckland v Bournemouth University Higher Education Corporation [2010] IRLR 445). The Tribunal should look at the conduct of the Respondent which amounted to the breach of contract, at which stage the test is objective and the range of reasonable responses test should not be used; and then the Tribunal will ask whether the employer acted reasonably, in the same way as any other case of unfair dismissal.[59]The Court of Appeal in Buckland clarified the correct approach: 59.1. In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence, the Malik test applies. 59.2. If acceptance of that breach entitled the employee to leave, they have been constructively dismissed. 59.3. It is open to the employer to show that such dismissal was for a potentially fair reason; and 59.4. If he does so, it will then be for the employment Tribunal to decide whether the dismissal for that reason, both substantively and procedurally, fell within the range of reasonable responses and was fair. Grievances and Implied Terms[60]In Blackburn v Aldi Stores Limited [2013] IRLR 846 the EAT 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.[61]In W A Goold (Pearmak) Ltd v McConnell [1995] IRL.R 516, the EAT held that it was an implied term that the employer would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have (see Ministry of Defence v Guellard [2009] All ER (D) 50 (Dec)).[62]In Claridge v Daler Rowney [2008] IRLR 672, EAT, the handling of the employee's grievance, whilst not without fault: “was not so egregious that no reasonable employer could have acted in that way”. This case is also of interest as Elias J (as he then was) opined that for it to be repudiatory, the employer's conduct must be likely or calculated to destroy mutual trust and confidence such that the employee is entitled to say: “You have behaved so badly that I should not be expected to have to stay in employment”. Reason for Resigning[63]The Tribunal has to consider the question of whether a repudiatory breach has played a part in the Claimant’s resignation (Wright v North Ayrshire Council [2014] ICR 77). In United First Partners Research v Carreras [2018] EWCA Civ. 323, the Court of Appeal said that where an employee has mixed reasons for resigning, the resignation would constitute constructive dismissal if the repudiatory breach relied on was at least a substantial part of those reasons. Deliberation[64]Applying the law to the facts, the Tribunal makes the following findings: Did the Respondent refuse, disregard, ignore or obstruct the Grievance Policy and procedure(s), thereby preventing the Claimant from exercising his right to raise a formal grievance on/after 19 December 2023, 22 December 2023, 01 January 2024, 05 January 2024, 19 January 2024 and 29 January 2024?[65]The Claimant’s case is that the Respondent’s policy allows and aggrieved party to make a formal complaint at any stage, and that the Respondent breached its own policy by denying him this opportunity. He relies on the wording of the Grievance Policy and Procedure [800] and paragraph 5 [804], which says: “The formal grievance procedure should be used only if it is not possible to resolve the grievance informally. You still always have a right to raise a formal complaint at any time during or after the informal stage.”[66]The Respondent’s case is that employees always have the right to raise a formal grievance, but this is caveated, and the above paragraph should be read as saying that the informal process must be exhausted first.[67]The parties agree that the Claimant did not want to start a formal grievance process initially. His evidence is that this changed from 19 December 2023. The Claimant only mentions three dates in his evidence [TC 146] and in crossexamination he confirmed the main dates he relies on where the first three, i.e. 19, 22 December 2023 and 1 January 2024.[68]During cross-examination, the Claimant also agreed that Mr Sarwar conducted an investigation into his complaints. This is supported by the discussion between the Claimant and Mr Sarwar, which was noted by Mr Sarwar [500]. The Tribunal is satisfied that a comprehensive, informal, investigation was carried out by Mr Sarwar. It involved significant preparation on the part of Mr Sarwar [563] and it developed and expanded upon the Claimant’s requested, such as when he wished it to encompass the GDPR issue on 16 November 2023 [130].[69]The first date on which the Claimant says he asked for the complaint to be made formal is 19 December 2023, and he send his request by way of email at 21:18 [154], attaching his document entitled: “formal grievance” [155 – 176]. The email is sent to Mr Neil and Ms Wilson.[70]This is followed by the email from Mr Sarwar to Mr Neil on 20 December 2023 [180 – 181]. In this email, Mr Sarwar says to Mr Neil: “I’ve now concluded my informal discussions”. There was cross-examination regarding Mr Neil’s interpretation of this statement and the fact that he had included in his witness statement that he understood that Mr Sarwar had concluded his: “initial discussions”. The Claimant’s point, as the Tribunal understands it, was that Mr Neil was interpreting this as: “initial discussions” which implies that more discussions were to follow, and therefore that the informal process was continuing, whereas what was actually said by Mr Sarwar is that: “I have concluded my informal discussions”. The Claimant’s case is that the informal process had concluded, but Mr Neil was misinterpreting this as that it was still ongoing.[71]It can be seen from the email that the wording used is: “my informal discussions”. The Tribunal’s reading of this is that Mr Sarwar does not mean that the informal process as a whole had concluded. From the policy on [804], the emphasis is on resolution. Section 5 uses the word: “resolve” three times in the word: “resolving” once. Therefore, whilst informal discussions may have concluded, this does not mean that the informal resolution part of the process is also over.[72]The email also states: “I met Tristan in Norfolk on Monday 18 December to inform him of the conclusion of my discussions and the informal resolution that I propose”. This again shows that whilst informal discussions may have concluded, proposals for a solution was still going on as part of the informal process. Mr Sarwar had also asked the Claimant for his proposals for a resolution. The Tribunal is satisfied that the informal process had not concluded at this date. Mr Sarwar was aware of the formal grievance request at this point but was trying to work towards a resolution and was awaiting the Claimant’s suggestions for such. This is because Mr Sarwar understood from the Claimant: “he did not want anyone ‘disciplined’ or’ [sic] hung drawn and quartered’ because of this complaint, that he has no issues with the SEOs in the FIU and has no concerns going back to work with any of them” [181]. The Tribunal finds that the Respondent did not refuse, disregard, ignore or obstruct the Grievance Policy and procedure(s) on 19 December 2023.[73]On 21 December, Mr Sarwar emailed Mr Neil saying he did not know the Claimant’s rationale for wanting to make the grievance formal [179]. Mr Sarwar made suggestions on what should be done before: “any decision is made by HR to move to a formal grievance”. In his closing submissions, the Claimant says that this shows that the Respondent was not minded to progress his grievance formally. The Tribunal rejects that argument. The Respondent still believed that the informal process was working, and the Respondent’s procedures emphasise the expectation that parties seek to informally resolve concerns before proceeding to a formal process.[74]The Claimant’s email was replied to by Mr Neil on 21 December [237] explaining, as per Mr Neil’s email of 6 November [145], that: “a formal grievance should cover the points outlined in Section 6.1 of the Grievance policy, including an outline of the actions you have taken to informally resolve matters with the individual(s) involved, as well as a statement outlining your desired outcomes”.[75]The Claimant subsequently revised his document entitled “formal grievance” to include this additional information [186 – 208], and he sent this by email to Mr Neil and Ms Wilson on 22 December 2023 [184]. The email was sent at 12:45 on 22 December, which was the Friday before the Christmas holiday. Various members of staff were on annual leave and it was not reasonable nor practical for this email to be dealt with that afternoon. The Tribunal finds that the Respondent did not refuse, disregard, ignore or obstruct the Grievance Policy and procedure(s) on 22 December 2023.[76]The Claimant sent an amended formal complaint [213 – 236], which corrected some errors and included some additional information, to Mr Neil and Ms Wilson by email on 1 January 2024 [209]. As this would have been a bank holiday, it is difficult to see how the Respondent can have been said to have refused, disregarded, ignored or obstructed the grievance policy Grievance Policy and procedure(s) on 1 January 2024, on a day when there would not have been any staff at work.[77]The Claimant emailed Mr Neil on 4 January to chase it for a response to his formal complaint [240] on received a reply from Mr Neil on 5 January 2024 [237 – 238]. The email from stated: “I can confirm that I’ve received your updated submission from 1st January 2024. As outlined in my email to you on 21st December 2023, you will need to work with Tariq to address these matters before a formal grievance on these items can be taken forward. Tariq will be in touch with you to confirm arrangements for moving this forward”.[78]The Tribunal has therefore considered the Respondent’s grievance policy. The policy states: 78.1. “It is our approach at the Medicines and Healthcare products Agency (the Agency) to use informal approaches to resolve complaints, wherever this is possible” [801]. 78.2. “Many complaints and disagreements at work can be resolved informally through discussions with a colleague and/or a line manager. When necessary and appropriate they will be resolved by using the formal grievance procedure” [802]. 78.3. “The formal grievance procedure should be used only if it is not possible to resolve the grievance informally. You still always have a right to raise a formal complaint at any time during or after the informal stage” [804].[79]It is the last of these points on which the Claimant relies. His argument is twofold; firstly he was of the opinion that the informal process had concluded, and therefore he was entitled to make a formal complaint; or that even if it hadn’t concluded, he was entitled to bring a formal complaint: “at any time during or after the informal stage” [804].[80]The Respondent’s case, as per its closing submissions, is that the policy allows a right to raise a formal grievance at any stage, however that right is caveated (on a case by case basis – i.e. if it is a case suitable/agreed for informal resolution) as set out in the policy: “where necessary and appropriate” [802], and where: “it is not possible to resolve the grievance informally” [804].[81]The Respondent’s policy at [804] appears to be contradictory. The Tribunal disagrees with the Respondent’s interpretation of that clause. If the Respondent is correct, the Tribunal’s view is that those two sentences would be the other way round. This would mean they could be read as: “You still always have a right to raise a formal complaint at any time during or after the informal stage [however…] The formal grievance procedure should be used only if it is not possible to resolve the grievance informally”. This is not how the policy is written. The Tribunal’s view is that the correct interpretation of this clause is: “The formal grievance procedure should be used only if it is not possible to resolve the grievance informally [but…] You still always have a right to raise a formal complaint at any time during or after the informal stage”.[82]The Tribunal is therefore satisfied that the Claimant was seeking to bring a formal grievance, which he was entitled to do under the policy, and for the Respondent not to permit this was a breach of its own policy.[83]The Tribunal finds that the Respondent therefore did refuse, disregard, ignore or obstruct the Grievance Policy and procedure(s) on 5 January 2024 when Mr Neil told the Claimant that: “you will need to work with Tariq to address these matters before a formal grievance on these items can be taken forward” [238].[84]The date of 19 January is when a meeting was held between Mr Sarwar and the Claimant, with Ms Wilson present. As found above, proposals were put forward by Mr Sarwar for resolving the Claimant’s complaint. The Claimant’s view was these were unchanged from those put forward on 18 December and he did not agree with them. The Claimant sent an email to Mr Sarwar, copying in Mr Neil and Ms Wilson, saying it was his understanding that the informal process had concluded. At this stage, even if the Respondent did not agree that the informal process was concluded, it should have been obvious that the Claimant wished to pursue a formal grievance. The Respondent had been in possession of his document for two weeks. From the evidence of Mr Neil, a DM was (at best) only just being sought at this time. The Tribunal finds that Respondent therefore continued to refuse, disregard, ignore or obstruct the Grievance Policy and procedure(s) on 19 January 2024. 85. 29 January 2024 is the date that the Claimant sent his email to Mr Sarwar commenting on and disagreeing with the reasons for the referral to OH. It is unclear why this date is significant in relation to the claim that the Respondent refused, disregarded, ignored or obstructed the Grievance Policy and procedure(s), thereby preventing the Claimant from exercising his right to raise a formal grievance, unless it related to the Respondent not attaching the Claimant’s email of 29 January to the OH referral. The Tribunal’s finding, however, is that the delay in progressing the Claimant’s grievance continued up until his resignation, so the Tribunal does not need to consider this point further. If so, did this constitute a breach of the implied term of mutual trust and confidence?[86]The Claimant was told by Mr Neil in an email of 6 November 2023: “If attempts to resolve the issues through Tariq prove unsuccessful, then the formal grievance route would still remain open to you” [145]. This was the route that the Claimant wished to proceed with from 19 December. As found above, the Respondent was in breach of its own policy when it failed to allow that.[87]The Tribunal has considered whether this is: “….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”, which is the test set out in Malik. Such a breach will only be found if the employer demonstrates by its behaviour that it is abandoning and altogether refusing to perform the contract. The test is an objective one, and a stringent one.[88]The grievance policy is not contractual [74] and the Claimant accepted this in cross-examination. The question is therefore whether a breach of this policy is sufficient to be a fundamental breach of the contract between the Claimant and the Respondent.[89]The Tribunal accepts that Mr Sawar and Mr Neil were still of the opinion that the informal grievance had not yet concluded. There were ongoing discussions about the issues [TC 102]. The Claimant accepts in his own evidence is that the informal process continued to up to 19 January, and he was engaging with these discussions, which is confirmed in his witness statement where he says: “I listened carefully to the findings of the informal resolution on the 19 Jan 2024 but did not agree with the conclusions” [TC 120].[90]Mr Neil said in cross-examination that he was aware at the Claimant and Mr Sarwar disagreed, but that: “didn’t mean you couldn’t go forward with a solution”. The Claimant disagrees with this, but looking at it objectively, the Tribunal finds that the Respondent was trying to resolve the issues and get the Claimant back to work. Applying Blackburn v Aldi Stores Limited [2013] IRLR 846, the Respondent was not objectively abandoning nor refusing to perform the contract.[91]It is also clear that preparations were underway for the formal grievance process to take place. Mr Neil confirmed to the Claimant by email on 9 January 2024: “the formal grievance route will be open to you” [247].[92]Mr Neil emailed the Claimant on 13 February 2024, confirming receipt of the Claimant’s resignation and to discuss his complaint. The email states: “we shall make arrangements for a decision manager to hear a grievance” and: “once a decision manager has been found to hear your grievance you will be contacted”. There was, therefore, some effort being made to hear the Claimant’s grievance, albeit slow and late.[93]The Tribunal is satisfied that, even if the Respondent could and should have progressed to a formal grievance process sooner, that of itself is not sufficient for a fundamental breach of the implied term of mutual trust and confidence. The test is not whether the employee has subjectively lost confidence in the employer but whether objectively the employer's conduct was repudiatory (Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347, [1981] ICR 666). It is not sufficient that an employer acts unfairly or unreasonably. The Tribunal does not find that the Respondent’s actions, or lack of actions, were so egregious that no reasonable employer could have acted in that way (see Claridge v Daler Rowney [2008] IRLR and Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908 (CA)).[94]As there was no fundamental breach of the contract, the claim of constructive unfair dismissal fails. Did the Claimant resign in response to that fundamental breach, or did he resign for another reason?[95]If the Tribunal is wrong, and the breach of a policy is sufficient to amount to a fundamental breach of contract, the Tribunal has given careful consideration to whether the Claimant resigned in response to the breach that he claims happened. The question is whether a repudiatory breach has played a part in the Claimant’s resignation (Wright v North Ayrshire Council [2014] ICR 77). In United First Partners Research v Carreras [2018] EWCA Civ. 323, the Court of Appeal said that where an employee has mixed reasons for resigning, the resignation would constitute constructive dismissal if the repudiatory breach relied on was at least a substantial part of those reasons.[96]To reiterate; from the agreed List of Issues, the alleged repudiatory breach is: Did the Respondent refuse, disregard, ignore or obstruct the Grievance Policy and Procedure(s), thereby preventing the Claimant from exercising his right to raise a formal grievance on/after the following dates:- 19 December 2023; 22 December 2023; 01 January 2024; 05 January 2024; 19 January 2024; 29 January 2024.[97]Following the findings of fact above, the comments made by the Claimant in November and prior to 19 December show that resignation was already something he was considering. As these predate the allegations of a fundamental breach, any alleged fundamental breach cannot have played any part in the Claimant already considering resignation.[98]The question for the Tribunal is, therefore, following any fundamental breach (if there was such a breach), did the fundamental breach form a substantial part of the reasons for the Claimant resigning?[99]The Claimant has strongly denied that he said that 70% of his reasons for resigning were due to financial concerns. The Tribunal has already made its finding of fact that this was more likely than not something that was said. It is therefore also likely to be something that was the genuine view of the Claimant at the time. The Tribunal noted this comment was said at the meeting between the Claimant and Mr Sarwar at Kettering Hall on 18 December 2023, prior to the alleged fundamental breaches. The Tribunal has therefore looked carefully at the Claimant’s resignation letter [309 – 310] to ascertain if the alleged fundamental breaches supplant his financial concerns to become a substantial reason for his resignation.[100]In his resignation letter the Claimant cites seven reasons for leaving, designated a – g. a) Refers to Mr Berrow and his behaviour between October 2022 and October 2023. The Claimant refers to unsupported bullying and harassing behaviour. There is no mention of any grievance, and the dates are outside of the time period that the Tribunal is looking at. b) Relates to an issue in October 2022 in regard to comment on an email chain. The only mention of a grievance is in relation to Mr Berrow – belatedly, according to the Claimant – providing Bruce Galbraith with instructions on how to submit a grievance. This has nothing to do with the Claimant’s own grievance. c) Once again refers to the actions of Mr Berrow following a meeting in October 2023. The Claimant makes allegations against Mr Berrow, which may or may not be true. It is not the purpose of this Tribunal to make findings on that point. The Claimant says these actions of Mr Berrow exacerbated the Claimant’s illness, but he does not refer to a grievance at any point. d) Again, refers to Mr Berrow and alleges rumours that he has spread about the Claimant. The Claimant refers to failure in there being any apology from Mr Berrow. The Claimant also refers to Mr Sarwar trying to “mitigate this”. In a generous interpretation, this could be said to be linked to the Claimant’s grievance, as this was one of the outcomes that he said he wanted. The Claimant does not, however, addressed the absence of or failure to progress any formal grievance as a reason for his resignation in this paragraph. e) Paragraph e) the deals squarely with the issue that is before the Tribunal. In that paragraph the Claimant says that both Mr Sarwar and Mr Neil have continually resisted, or made excuses, or ignored his requests to progress a formal grievance, and he said he was deprived of making a formal complaint. f) The penultimate paragraph relates entirely to his sick pay. g) The final paragraph relates entirely to the pay structure, which the Claimant called: “grossly unfair”.[101]Of the seven reasons given for resignation, only one, or on a generous reading two, relate to the grievance. Three firmly relate to the conduct of Mr Berrow, one to sick pay, and one to the pay scale. In the Claimant’s closing arguments, he submitted that financial reasons were not part of his decision to resign. He had no job to go to and eventually accepted a new role that paid a lower wage than his role with the Respondent did. The Tribunal accept that it is likely that financial reasons were not a substantial reason for the Claimant decision to resign.[102]The Claimant makes reference to the email sent on 13 February 2024 [319] by Mr Neil saying: “You were advised that you are required to comply with the way forward set out by your senior manager and, as previously explained, if after returning to work, you are unable to successfully resolve matters with the help of your senior manager, your complaints can be taken forward as a formal grievance”. This email postdates his resignation. This email therefore cannot have been an operating factor in his decision to resign. The Tribunal, therefore, does not accept the arguments in relation to whether or not the Claimant was required to return to work before a formal grievance could be raised.[103]The Tribunal takes a similar point in relation to the email from Kerry McEyeson, senior HR manager, where she states that she did not have the capacity nor wish to become embroiled in the Claimant’s formal grievance. This email was only known about by the Claimant from the disclosure process of these proceedings. He says it demonstrates the attitude of the Respondent, however, as he did not know about it at the time of or leading up to his resignation, it cannot have been a factor that influenced his decision.[104]The Claimant’s ET1 states that it was the conduct of Mr Berrow that caused him to resign, however that is not the issue this been put forward to the Tribunal in the agreed List of Issues. The Tribunal had no involvement in forming this agreed List of Issues; it was agreed between the parties. The List of Issues has never been challenged by the Claimant, and therefore it is that List of Issues that the Tribunal must use in making its decision.[105]The Tribunal is satisfied that it was the conduct of Mr Berrow that was the substantial reason in the Claimant’s resignation. The Claimant makes further criticisms of the conduct of Mr Berrow in his witness statement at [TC 153 – 154], even though this is not relevant to the issues before the Tribunal.[106]The Tribunal finds that the Claimant resigned because of the conduct of Mr Berrow, not because of any failure to allow a grievance into this conduct. It would be an error of law for the Tribunal to conclude that the Claimant’s resignation due to underlying subject matter of the grievance was equivalent to his resignation because of a failure to progress the grievance. For this reason, the claim of constructive unfair dismissal also fails. Did the Claimant otherwise affirm any of the proven breaches of contract thereby losing the right to claim constructive dismissal?[107]Had the claim succeeded in the two stages above, the Tribunal would have found that the Claimant had not affirmed any of the proven breaches of contract and thereby lost the right to claim constructive dismissal. The Claimant remained on sick leave throughout his notice. He did no work for the Respondent during his notice period and specifically asked for there to be no contact with him in relation to work-related matters [333].
Conclusion
[108]For the reasons set out above, the Claimant’s claim of constructive unfair dismissal fails.[109]The section entitled “conclusion” at the end of the Respondent’s submissions begins with the phrase: “this is an unfortunate case”. The Tribunal entirely agrees with that sentiment. This case has seen the end of an employment relationship in a job that the Claimant was clearly good at; the end of a friendship; and both parties having to engage in lengthy and no doubt costly litigation.[110]This judgment ends by stating that the Claimant was skilled and very competent at his job, and his service within the MHRA is something of which he can be rightly proud. Approved by