Mr R Dannatt v Reed Specialist Recruitment Ltd: 3201412/2018
EMPLOYMENT TRIBUNALS
Case No 3201412/2018
Between
Mr R DannattClaimantReed Specialist Recruitment LtdRespondent
Before
Employment Judge MoorMr P Lockley (instructed by Counsel) for claimantMr T Kirk (instructed by Counsel) for respondentDate 28 May 2019
JUDGMENT
The complaint of unfair dismissal is well-founded.
REASONS
[1]I refer to the issues agreed by the parties. This case depends on whether the five matters set out at 2(a)(i)-(v) have occurred; whether any of them, individually or cumulatively, showed that the employer had behaved in such a way objectively that was calculated or likely to, without reasonable or proper cause, destroy the relationship of mutual trust and confidence between the parties. If so, whether the Claimant resigned in response to any of them or whether he had affirmed the contract prior to his resignation.[2]The parties agreed, without reference to the Employment Tribunal, to deal with liability only at this hearing. Therefore remedy will be listed for a further hearing including any Polkey question or other issue arising. I have made relevant case management orders separately.
Findings of Fact
[3]Having heard the evidence of the Claimant, Mrs Claire Kee, Regional Manager for Social Care, Ms Beth Aspinall, Senior HR Adviser, and having read the documents referred to me in their evidence, I make the following findings of fact.[4]The Claimant was employed by the Respondent as a recruitment consultant in the field of social care. His job title was Senior Executive Consultant. He started employment with the Respondent on 1 September 2015. He was first based at the Richmond office and for a period there, between May and November 2016, his line manager was Ms Jilani. Salary and Travel Allowance[5]In the summer of 2017 offices were combined and a hub created in Stratford. The Claimant had discussions with the Respondent who wanted him to move to Stratford or at least have it as his office base. During the course of those discussions, the Claimant identified his extra travelling costs to Stratford annually as £2,408. The Respondent valued the Claimant and wished to keep him in the business. The managing director agreed internally with his managers to offer the Claimant an increase in salary, called a goodwill payment, of £1,500 and a travel allowance of the £2,408 calculated by the Claimant for one year (54). Mrs Kee, on 21 June 2017, having received that decision from the managing director, discussed the matter with the Claimant. She wrote to HR after that discussion saying that the Claimant was happy to accept the £1,500 goodwill gesture and £2,408 (56). The email does not state whether a one year limit was agreed at this meeting. There was no letter sent confirming that oral agreement. And it is agreed thereafter the internal documentation does not mention the year’s limit until about 18 December. What is clear, from the meeting between Mrs Kee and the Claimant, was that they agreed from 15 August he was to be contractually based in Stratford. I find he knew the increase in his salary was to keep him in the business regarding that move and the £2,408 increase was in respect of the extra travel.[6]The Claimant query a change in his payslip later on showing the travel allowance amount separately as a ‘working up allowance’. Ms Aspinall sent him an explanation that this £2,408 was the travel allowance limited to a year and he replied that this explanation was ‘nonsense’.[7]In evidence the Claimant was unclear about the figures relating to his salary towards the end of his employment. It does appear from the documents that he gained quickly a series of salary rises at that time, i.e. apart from the figures in dispute here. But what he was clear about was that the limit of one year on the travel allowance had not been agreed. On the other hand Mrs Kee, in her evidence, was equally clear that she had agreed with the Claimant in their discussion on 21 June that the travel allowance was limited to a year. I have to decide this straight dispute on the facts and to do that I apply the test of what was more likely to have been said. This can be a difficult decision especially when two witnesses have given clear but contradictory evidence. On one hand Mrs Kee had a very recent direction from her managing director that the travel allowance should be one year only, which she is likely to have been sure to pass on to the Claimant. On the other, the annual limit to the travel allowance was not confirmed in writing to the Claimant. But the Claimant did not make his objection at the time upon the basis that the one year limit had not been agreed.[8]The only other potentially relevant evidence in relation to this difficult dispute is the credibility of the Claimant in relation to his schedule of loss. Credibility is not always an all or nothing matter but as this evidence also related to the Claimant’s approach to figures it is relevant for me to take into account. The Tribunal ordered him to prepare a statement of remedy and further explained that he must include in it post-dismissal/resignation earnings. He prepared a schedule of loss, served on 24 August. He confirmed he had seen the schedule prepared by his solicitors before it was sent. That schedule did not show any post-resignation earnings. In answers to my questions in his oral evidence he stated he had begun to earn about two weeks after his resignation. But he had not accounted for any of these earnings in his schedule. He suggested he did not understand the procedures but Employment Tribunal procedures are designed to be understood by lay people and, in any event, the schedule that the Claimant saw before it was served was clear in what it was setting out: past loss and future loss. The Claimant would have known that, by not crediting his post-resignation earnings, the schedule was at the very least not complete and in fact misleading. Therefore I find that the Claimant’s credibility is damaged by that failure.[9]Therefore on the particular issue, whether in the discussion between Mrs Kee and the Claimant she informed him that the travel allowance be limited to 12 months, I prefer Mrs Kee’s evidence. I find the agreed salary at the time of resignation was £39,000 plus a travel allowance for £2,408 for one year from the date of their agreement.[10]Curiously, despite the contractual move to Stratford and the extra travel allowance, the Claimant continued to work at least weekly at Richmond office and, quite often, more than that. Both he and his managers knew that it was convenient for him to do so because he had clients in the area. Conduct of Ms Jilani[11]The Claimant and Ms Jilani did not have a good working relationship. Although she was not his line manager for long, he worked in the Richmond office in an open plan office and he would see her there. In Stratford he would not come across her. At the time of the incident in December their relationship was not so intolerable. He could have chosen to work at Stratford all the time but then he continued to work on occasion at Richmond, which was more convenient for business reasons. Others had complained informally about Ms Jilani’s manner.[12]On 12 December 2017, Ms Jilani accused the Claimant, wrongly as it turned out, that he had placed a person off the books and thereby obtained cash in hand. She did this in the open plan Richmond office in front of colleagues. She thereby accused him publicly of dishonesty. Some of the witnesses to the incident described her as shouting, others ranting. The Claimant described her as making this accusation loudly and in a highpitched tone. It was undoubtedly unpleasant and humiliating for the Claimant who was shocked by Ms Jilani’s behaviour, as were colleagues.[13]The Claimant suggested, in his written evidence that earlier on in the day that he had been told by a colleague that Ms Jilani had told Ms Tantra and Ms McManus that she intended to get money out of him because she knew of this allegation. In his oral evidence to me he said he had heard this directly from Ms Tantra. He told the grievance hearing he could not remember who told him. The evidence of how this was conveyed to the Claimant is so inconsistent that I find he was not likely to have been told this by Ms Tantra. In any event, even if she said something to him at the time, the Claimant put it down to a misunderstanding and that is exactly what must have been because very soon afterwards Ms Jilani made her public accusation, which would have entirely undermined any intention she had of blackmailing him or extorting money out of him. Be that as it may, the key finding here is that Ms Jilani’s conduct towards the Claimant was inappropriate. She abused him, accused him of dishonesty, which was humiliating and embarrassing.[14]The Claimant left the Richmond office that day and he returned to work, presumably in Stratford, for the remaining three days of the week. On 15 January he entertained a client. On 18 December he went off on sick leave that was initially selfcertificated. Progress of Grievance[15]The same day he made a formal grievance about the conduct of Ms Jilani and referred to her public and unfounded accusation, of being informed of her intention to extort money and complaints about her conduct generally that she instructed junior members of staff to log on for her, that she was late for work and that her language was foul. He referred to a culture of bullying and unprofessional behaviour by her and trusted that the Respondent would resolve matters promptly.[16]Two hours later on the same day Ms Aspinall of HR sent the Claimant an acknowledgement of his grievance stating that she would shorty be appointing a senior manager to make a decision and that he would be invited to a meeting after that. Unfortunately he did not receive this email because that was the first day of his sickness. Ms Aspinall was unaware of this and nothing had put her on notice as to the likely absence. Ms Aspinall proposed internally that Mrs Kee should be the decision maker and sought details of her availability on the same day.[17]On 2 December the Claimant provided a sick note for anxiety. Ms Aspinall was on annual leave from this date until 3 January so she would not have seen it. There were 6 working days before 3 January when Ms Aspinall emailed Mrs Kee about the grievance asking whether the Claimant was back at work and could they start considering a hearing. Mrs Kee then informed her that the Claimant had been signed-off. They did not progress the grievance for the Claimant at that time because the Claimant was absent with anxiety. His return date was not too far away. They decided in those circumstances it would not be appropriate to contact him before his return.[18]On 12 January the Claimant spoke to Mrs Kee, him having sent an email asking about the progress. She suggested that they meet on 18 January when he expected to return. He agreed and said he was looking forward to meeting her. I find from Mrs Kee’s evidence that the conversation was jovial. They talked about Christmas and the difficulty he had had with his cooker breaking on the day. She had no indication that he was upset and she expected him soon to return. (Plainly, he was still upset by the conduct of Ms Jilani.) Mrs Kee also informed the Claimant that Ms Jilani’s allegation would not be taken any further. Ms Aspinall checked progress of the grievance with Mrs Kee on 15 January.[19]Unfortunately, the Claimant remained off sick so that the planned meeting of 18 January could not take place.[20]On 19 January the Claimant’s solicitor sent an email complaining of the failure to deal with the grievance. They continued to deny Ms Jilani’s accusation and suggested that he was disappointed with the Respondent’s actions so far. And that he was considering resigning. That looks very odd in the context of the conversation the Claimant had had on 12 January with Mrs Kee. The Claimant was reassured that Ms Jilani’s accusation would not be taken forward. The Claimant’s own reply to her was friendly and appears content with progress. It is also incorrect that no response had been received about the grievance: the Claimant had known and had the discussion on 12 January. That letter also informed the Respondent they had advised the Claimant that he was disabled by reason of diagnosis of depression and he expected that the Respondent would make all necessary reasonable adjustments and workplace to account for this.[21]On 22 January the Respondent invited the Claimant to a grievance hearing on 30 January i.e. the date he was due back. He sent a receipt for lunch that he had had with a client and did not fill out the relevant claim form, as procedures required. However, the Claimant remained signed off until 29 January.[22]There was then a delay caused by the Claimant’s request to have a lawyer at the grievance meeting. Ultimately, on 7 February, the grievance meeting was held by telephone conference call. At that meeting the Respondent confirmed to the Claimant he was a highly valued staff member. The hearing ended with Ms Aspinall referring to an Occupational Health referral seeking the Claimant’s request to discuss it, explaining that it was not meant to be invasive but that it would help them understand if there was anything further they could put in place in relation to the return to work. She asked if there was anything else she could do at that point and the Claimant said he would get back to her.[23]The grievance was then fully investigated Mrs Kee interviewed other members of staff who were in the office at the time and there is no criticism of that investigation. During the investigation the Claimant’s account was, in the most part, supported by three witnesses and I have summarised the evidence they gave about Ms Jilani’s conduct above.[24]On 19 February 2018 the Claimant became aware that the expense receipt he had sent in on 29 January had not been paid (for £198). In fact, on the morning of this hearing, the Claimant realised that the receipt he had submitted was not the correct receipt but for a private lunch that he had had on 20 January. He had mistakenly provided the wrong receipt and had not submitted the receipt for the 15 January lunch with clients.[25]On 21 February the Claimant’s grievance was partly upheld by Mrs Kee in a very detailed letter in which reasons were given for each conclusion. She agreed that Ms Jilani’s accusation made in an open office was inappropriate and unprofessional. She upheld the allegation that Ms Jilani had demonstrated unprofessional behaviour in the office. It was made clear that the allegation by Ms Jilani had not reduced the Claimant’s standing in the minds of his colleagues or undermined his integrity in their eyes. Mrs Kee said she had reached that conclusion from what his colleagues had said about him. Mrs Kee decided there was no evidence for the extortion allegation or that Ms Jilani had directly accused the Claimant of taking money out of the pockets of his colleagues. She concluded ‘please be assured that this matter had been taken very seriously …and the company will be taking appropriate action in line with policies and procedure to address this.’ The Claimant understood at the time that this was a reference to disciplinary procedures. He did not appeal the outcome of the grievance. With a further fit note the Claimant remained on sick leave through to the 8 March. Correspondence about Return to Work[26]The next day on 22 February the Claimant asked Ms Aspinall what action had been taken against Ms Jilani and queried the progress of his expense claim. Ms Aspinall replied, ‘I am not in a position at this time to state what exactly action has been taken against Kamilla. However, the company have taken action in line with policies and procedure as deemed necessary so please trust that your concerns had been taken seriously and have been dealt with appropriately.’ She indicated she would pick up the expense matter with Ms Kemp although there is no documentary record of her doing so at that time.[27]On 26 February the Claimant stated he wanted to move on from the previous correspondence and that he wanted to ‘discuss remedies for a March return to work’. He said he appreciated the feedback in Mrs Kee’s findings and that he was empowered by the positive feedback from his colleagues. He said ‘Realistically there will be some friction as to be expected or certainly a time frame for things to get back to normal’ and he asked ‘how are we going to make this as smooth as possible?’ He also queried why his pay slip salary had moved from £41,408 to £39,000. In her reply to him Ms Aspinall established that there had been an arranged meeting planned and told him that she would use the OH referral to identify ways in which they could support a return to work. She pointed out that working at Stratford should be smooth, presumably in the sense that Ms Jilani did not work there.[28]On 28 February Ms Aspinall gave the Claimant an explanation about the salary changes on his payslip that she said ‘as per the agreement that was made following the restructure you subsequent relocation to Stratford from Richmond you were given a £2,408 increase to your salary however as this was only for 12 months this was added as a working up allowance and therefore will be shown on your payslip in this way.’ She confirmed the salary had not been decreased. She told him to liaise with Mrs Kemp if he had any more queries about that.[29]On 8 March the Claimant extended his sick leave with a fit note up until 8 April. His reply to Ms Aspinall about salary was that her explanation was total nonsense.[30]In my judgment, however, I find that the Claimant understood Ms Aspinall’s explanation about salary change once he looked at his payslip he saw that the amount of pay overall had not decreased. It was, just as Ms Aspinall had explained, that how it was recorded that has changed. The explanation was not confusing and I do not accept that the Claimant thought it was so.[31]On expenses Mrs Kee told Ms Aspinall that they had had to process the expenses manually and she would chase accounts. On the same day 9 March she asked accounts to send her over a form so that she could put an expense claim in for the Claimant while he was on long term sick. She did so and sought approval for it on his behalf on the same day. Ms Aspinall told the Claimant this and understood that he had gone to an Occupational Health meeting the day before and informed him that she would arrange a welfare meeting with him as soon as the report was received and to prepare for his return to work.[32]On Monday 12 March colleagues informed the Claimant that Ms Jilani had resumed to duties. He wrote to Ms Aspinall asking if there was an update on the process of the grievance. She informed him that it was closed now and he had not appealed. He replied that he understood this but again asked could he ask what action had been taken. She replied stating that she was unable to confirm the action taken but asked him to trust that the company had dealt with it appropriately and in line with their policies. He then replied ‘I understand there could be complexities’ and asked did the company view the matter as gross misconduct? She replied, ‘It would not be appropriate to discuss any further information due to data protection and confidentiality.’ And stated she would not correspond with him about it further. She stated her focus was to support the Claimant in a return to work and identify ways they could work together to achieve that.[33]On 12 March Ms Kemp chased the expense matter internally. They were approved on the same day but the Claimant was not informed about that. Resignation[34]On 13 March the Claimant resigned with immediate effect. The reasons he gave were: Ms Jilani’s conduct on 12 December that it was inappropriate and incorrect to accuse him of theft in front of his colleagues; the failure to respond to his grievance until 12 January; that his expenses had not been reimbursed; and that Ms Jilani, as he currently understood it, had not been subject to disciplinary action and that he had a right to know whether she had faced any action; and the unilateral reduction, as he saw it, of his salary to £39,000.[35]The Claimant told me that even if he had been informed that Ms Jilani had received a final written warning it would have not made a difference to his decision to leave. Indeed Ms Jilani had received such a warning on 8 March. The Claimant explained in his oral evidence that it was her conduct on 12 December that meant he decided he could not return. He identified that as the most important reason for his resignation. I find as a fact that part of the reason for the Claimant’s decision to leave was the conduct of Ms Jilani on 12 December. This was plainly an important factor in the Claimant’s decision to resign. Of the other reasons he gave in his letter I find that the Claimant did not believe at the time he resigned that his salary had been reduced that much was apparent overall from his payslip. I do not, as I have said, accept that he was confused about that. I find that the failure to pay expenses and the failure to inform of the sanction were in his mind at the time of resignation and partly the reason for it. I am less sure the Claimant, at this stage, was so concerned by the delay in starting the grievance process. But he was left with the impression that he had had to chase to get the grievance going and I find that was a concern that he still had at the time of his resignation.[36]As it happened the expenses receipt was not queried by the Respondent and ultimately paid on the 16 March.[37]In answer to my questions in his evidence the Claimant stated that he had started a new job at about the end of March on a commission-only basis and that he had applied for that role after his resignation.[38]The Respondent’s grievance procedure requires employees to respond in five days to a formal grievance informing the employee who will hear the grievance and how it will be managed.[39]Its expense procedure informs employees that properly completed and authorised claims submitted by a Tuesday will be paid by Friday of that week. The policy states, unsurprisingly, that expenses have to actually have been incurred and that the claim form is completed correctly.
Legal Principles
[40]I was greatly helped by counsel who did not disagree about the legal principles to be applied.[41]In some circumstances where an employee resigns they are entitled to treat that resignation as a constructive dismissal. An employee is entitled to terminate his/her contract without notice when the employer had committed a repudiatory breach of the contract, in other words a very significant breach.[42]Here the Claimant relies on the implied term that exists in all employment contracts 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. (This is sometimes referred to as the Malik term.) A breach of the Malik term is inevitably a repudiation of the contract: Browne-Wilkinson P in Woods v WM Car Services (Peterborough) Ltd [1982] ICR 666, 672A. The test of whether there is such a breach is however objective and not dependent on the employee’s subjective view.[43]A false accusation without reasonable cause of theft can be a fundamental breach that is Robinson v Crompton Parkinson [1978] ICR 401. Reprimanding an employee in a humiliating way can be a fundamental breach, Hilton International Hotels v Protopapa [1990] IRLR 316. But, really, these cases all turn on their facts and what is important to me is to consider what happened to the Claimant and decide myself whether that meets the test. Of course the conduct of the supervisor can bind an employer providing they were acting in the course of their employment.[44]The Claimant also relies on the principle, in the alternative, that a course of conduct can amount to the breach of the Malik term. Individual actions, if they are not themselves sufficient to amount to a breach, may be taken together cumulatively to have the effect of such a breach. In such a case the last incident relied on, often known as the last straw, does not in itself need to be serious or a breach of itself but it must contribute however slightly to the breach of the implied term. That question whether it contributed slightly is itself an objective test so, even if an employee finds that last act to be hurtful, if it is entirely innocuous that would be insufficient.[45]If there is a repudiatory breach the employee, the Claimant here, must show that he resigned in response to it and that means (see Nottinghamshire County Council v Meikle [2004] IRLR 703 CA) that he resigned at least in part in response to the breach. It need not be the whole reason for his resignation.[46]After any repudiatory breach the employee has a choice either to affirm the contract and to continue work or to accept the breach, resign and treat himself as dismissed. Delay in resigning after the breach is not of itself affirmation but, in an employment context, prolonged delay may be evidence of implied affirmation. This is because by working and receiving a salary the employee could be said to be doing acts consistent with further performance of the contract, WE Cox Toner Ltd v Crook 1981 ICR 823 EAT. The EAT observed if an innocent party further performs the contract to a limited extent but at the same time makes it clear he is reserving his rights to accept the repudiation and was only continuing so as to allow the guilty party to remedy the breach such further performance does not prejudice his rights subsequently to accept the repudiation Farnworth Finance Facilities Ltd. v. Attryde [1970] 1 WLR 1053 (quoted in W E Cox Toner above at para 13).[47]Counsel referred to Ms N Colomar Mari v Reuters Ltd: UKEAT/0539/13/MC, which concerns the significance to be attached to a period whereby sick pay was accepted by an employee and whether or not the acceptance of sick pay goes to evidence affirmation. This will depend on the facts of the case. Acceptance of sick pay for a limited period while protecting the position is unlikely to amount to affirmation (paragraph 49).[48]In W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516 the EAT accepted there was an implied term in the contract of employment and employers would reasonably and promptly afford a reasonable opportunity to employees to obtain redress for any grievance they may have. And I have also considered the ACAS Code on grievance, which provides that there must not be an unreasonable delay in any grievance.[49]It is agreed here that if I find there was a repudiatory breach and no affirmation then there would be an unfair dismissal. Application of Facts and Law to
Issues
[50]Despite my lengthy recitation of the facts, it seems to me this case boils down to really simple question. If I decide that Ms Jilani’s conduct on 12 December was on its own a breach of the Malik term, and a fundamental breach. All I then need to do is go on to ask whether the Claimant affirmed the contract. So that is what I have considered first.[51]It seems to me in this case that Ms Jilani’s conduct towards the Claimant on 12 December was, on its own, sufficient to amount to breach of the implied term of trust and confidence, the Malik term. I have looked at the matter objectively. While Ms Jilani may have had reason to query why a client placed by the Claimant was not on the system, she had no good reason or good cause to accuse him dishonestly of making cash in hand from that placement loudly in an open plan office in front of his colleagues, three at least who heard the matter and were shocked by it. She had no evidence that he had pocketed the money; she jumped to a conclusion of dishonesty. The very essence of the Claimant’s job was to book clients and he was being accused of doing this dishonestly in front of his colleagues. I cannot imagine anything more obvious that would be likely to destroy trust and confidence between an employee and an employer. There is no evidence that Ms Jilani had done any investigation and, even if she had, raising the matter publicly was entirely inappropriate: disciplinary action is to be taken confidentially, soberly, after an appropriate investigation and giving an individual an opportunity to be heard once allegations are made. Ms Jilani made did none of that. Moreover, she was abusive towards the Claimant and humiliated him. She shouted at him for some time. Others were shocked by her behaviour. Again, there is absolutely no good reason why she did that. Taken together with an inappropriate public accusation of dishonesty, this abusive conduct publicly towards him together was likely to destroy the trust and confidence he had in his employer. This is not because Mr Dannatt is particularly sensitive or because I looked at the matter from his subjective point view but because any reasonable employee would consider that to be the case. On an objective test this was most serious inappropriate unprofessional conduct. I make this finding even if it had been a one-off conduct but here there had some prior informal complaints about Ms Jilani’s management style and it seems to me therefore on an objective basis her conduct was likely to destroy the relationship even more so.[52]It has not been submitted that Ms Jilani was acting outside the course of her employment in making those allegations and therefore her conduct is that of the employer.[53]As her conduct on 12 December was part of the reason for resignation on 13 March, indeed most important reason, I shall go on to ask whether the Claimant waived that breach and affirmed the contract.[54]It seems to me, until the outcome of the grievance was known (on 21 February), it cannot be said that the Claimant in any way waived the breach. He was doing what WE Cox Toner allowed: continuing in work, receiving sick pay, discussing the matter with employees to allow the employer to remedy the breach. And so his performance up until the outcome of the grievance could not amount to a waiver of the breach.[55]So then I must consider what did or did not happen between the 21 February and 13 March. That is a period of three weeks. Did the Claimant affirm the contract in that period?[56]First, it seems to me the delay between the grievance outcome and the resignation is not so prolonged as to imply affirmation. Three weeks, while someone is off sick with anxiety and depression, does not seem to me to be too long a time for the Claimant to consider his position and make up his mind. So that time, even with the receipt of sick pay, does not seem to me to be enough to amount to waiver on its own. The Claimant had had a shock, had experienced illness, had gone through the grievance process and needed to consider his position.[57]Then, I have considered whether the words he used in his communication on 26 February sufficient to affirm the contract. He seemed to indicate in that email that he wanted to come back, to move on from previous communication. That evinces an intention to return but at that point he understood disciplinary procedures were being followed and the last thing that Ms Aspinall had said was that she could not tell him at that time what action was being taken. At that point the Claimant was asking how the future could be smooth and asking about remedies for a return to work. It was only five days after the grievance outcome and I have decided that the words used on 26 February email were not sufficient to amount to absolute affirmation of the contract knowing the grievance outcome. The Claimant was still trying to work out what a return to work would look like and to discuss that with his employers. He had not made a firm decision one way or another and the words he used on 26 February cannot be interpreted as complete affirmation.[58]There has been a short delay and an attempt to look at what the future might look like with his employer. Could the failure to appeal the grievance amount to an affirmation or part of it? It seems to me it can hardly be said that failing to continue in his grievance can be calling upon the employer to perform the contract so that seems to me to be a neutral factor.[59]Overall, by the time of the resignation, in my judgement there was not sufficient delay to amount to affirmation and there were not sufficiently clear words used to amount to affirmation and even taken together those two matters are not sufficient for me to find that, after knowing the outcome of his internal grievance, the Claimant affirmed the breach that took place on 12 December. That is very simply the reason for my decision that the dismissal was unfair.[60]Nevertheless because of all the evidence we heard on it and the findings of fact I made, I will go on to give my decision on the remaining points albeit that they are now academic.[61]I do not consider that there was a failure reasonably promptly to deal with the grievance. An acknowledgement was sent immediately albeit not naming the actual manager but identifying that a senior manager would hear the matter. Even if the acknowledgement on 18 December is not taken into account it seems to me that the conversation on 12 January was a reasonably prompt beginning to the grievance especially in the light of the Claimant’s sick leave. If I am wrong that was an unreasonable delay, it seems to me that Ms Aspinall had reasonable and proper cause for it. In the light of the absence on sick leave for anxiety her decision that it was appropriate not to contact the Claimant about his grievance until he was well enough to deal with it seems to me to be entirely understandable approach. So I would not have found that the alleged grievance delay on its own was a breach of the implied term.[62]I am also with the Respondent on expenses. First, it seems to me that it was not an unreasonable delay in processing them from 29 January to 13 March. This time period does not seem to me to be excessive, especially bearing in mind the Claimant had not used the proper form. Nor would I found that failure to pay was a breach. I agree with the Respondent’s submissions on that: because the expenses claimed were not actual expenses.[63]I now move to the difficult question about how much Mr Dannatt ought to have been told about the disciplinary action taken against Ms Jilani. And I can see force in both sides’ submissions. On the one hand, the Claimant has made a serious complaint about a member of staff and it might make sense that as part of that complaint that he needed to know what she has been told, what sanction she suffered so that he understands his employer was taking the matter seriously. On the other hand disciplinary matters are highly confidential matters and personal to an individual and that seems to me to be an important principle of employment practice and one that should not easily be shifted. The Respondent states that it had reasonable and proper cause in not informing him because of data protection law. It seems to me if I had been required to make a decision about this, applying the Data Protection legal principles submitted to me, that disclosure of the actual sanction did not further the purpose of managing the Claimant in the future. He did not need to know, for this purpose, exactly what sanction had been applied to Ms Jilani. Nor was it administration of his employment. It is perfectly possible well to administer employment without knowing what a colleague’s disciplinary action was. What was needed for the future relationship was how to manage the relationship between Ms Jilani and Mr Dannatt. The fact of him knowing the disciplinary sanction against her arguably would not have helped in that. On balance it seems to me that all the Claimant needed to know to obtain appropriate redress for his grievance was that disciplinary action had been taken under the disciplinary procedures and that would have given him some comfort.[64]It is a difficult question on the facts that I found but it seems to me what the Respondent told him was probably enough for him to know that they were taking action under the disciplinary procedures. Certainly his conclusion that no disciplinary action had been taken does not fit with what he knew at the time. I am pleased, that this point has become academic because it does seem to me to be a difficult one. But on balance, bearing in mind data protection, I would have concluded that the Claimant did not need to know the sanction all he needed to know which is what he had been told which was that action was taken under the disciplinary procedures.[65]I have decided that as a matter of fact that was not a factor in the Claimant’s reasons for resignation. But, in any event, plainly his salary had not been reduced here and the findings of fact I have made mean that he knew the work allowance was only limited to a year.[66]To summarise: the reason I have found that the Claimant was constructively unfairly dismissed is by reason of Ms Jilani’s behaviour on 12 December and that the Claimant did not affirm the contract after the outcome of the grievance. I should say I was relatively impressed with how the Respondent’s HR sought to handle the grievance but really that is not relevant now bearing in mind that Ms Jilani’s behaviour was so serious as to allow the Claimant to leave in response to it.