Mr R Scarles v Menzies Distribution Ltd: 3201957/2019
EMPLOYMENT TRIBUNALS
Case No 3201957/2019
Between
Mr R ScarlesClaimantMenzies Distribution LtdRespondent
Before
Employment Judge ReidIn person for claimantMr Wilson (instructed by Counsel) for respondentDate 7 February 2020
JUDGMENT
[1]The judgment of the Tribunal is that the Respondent did not constructively dismiss the Claimant.[2]The Claimant was therefore not unfairly dismissed by the Respondent contrary to s94 Employment Rights Act 1996 and his claim for unfair dismissal is dismissed. (The remedy hearing booked with the parties for 7th May 2020 is therefore not required and is cancelled.)
REASONS
[1]The Claimant was employed by the Respondent in its call centre as a Customer Service Adviser from 29th January 2015 until he resigned with immediate effect on 29th July 2019. He had done a different role (Sales Adviser) between May 2016 and April 2017. His call handling and processing duties were set out in his job description (page 30A).[2]The Claimant brought a claim for constructive unfair dismissal presented on 22nd August 2019 (page 8). The breach of contract he claimed was a breach of the implied term of trust and confidence arising out of three matters: firstly because of the way the grievance he raised in April 2019 about bullying/harassment by his manager Mrs Donna Smith (formerly Cochran) had been handled, secondly because of the superficial outcome to that grievance and thirdly because the health conditions he had been raising since January 2018 were dismissed. He said it had created a toxic environment and referred to instances of bullying/abuse by Mrs Smith in relation to firstly his exclusion from ad hoc duties (non- call duties) and secondly in relation to when he said Mrs Smith had monitored his calls over two days (without taking into account how his health problems impacted on his performance). The Respondent defended the claim (page 24) on the basis that there had been no breach of contract by it entitling the Claimant to resign and claim constructive dismissal; it said it had followed the grievance procedure and had taken into account and responded to what the Claimant was raising during that process (including in relation to his health), had provided the Claimant with further information and made appropriate investigations into his complaints.[3]There was a one file bundle (to page 199) and witness statements from the Claimant, from his father Mr Scarles (senior) and from Mr McGinnagle who accompanied the Claimant to his grievance hearing and to his appeal hearing (but who did not attend). The Claimant gave oral evidence. Mr Scarles (senior) confirmed his witness statement but no questions were asked of him. There were witness statements from Mrs Smith (Customer Service Team Manager) from Ms Stallen (HR, who conducted the grievance) and from Mrs Campbell (Head of Customer Service, who conducted the appeal) all of whom gave oral evidence. I was provided with a skeleton argument for the Respondent and heard oral submissions on each side.[4]I identified with the Claimant at the beginning of the hearing that in a constructive dismissal case it is for him to show that the Respondent breached a term of his contract of employment which, when considered objectively, amounted to a repudiatory (ie serious) breach by it, showing that it no longer intended to be bound by the contract’s terms. This means that it is for the Claimant to show that serious breach by the Respondent. He then has to show that as a result of this he resigned and did not delay in resigning.[5]The Claimant was not (actually) dismissed by the Respondent for poor performance or because of his health-related absences and the Respondent was not therefore having to justify a dismissal by it for one of those reasons. It was also not a disability discrimination claim based on a long-term health condition.[6]The term relied on by the Claimant as having been breached was the implied term of trust and confidence. This is a term implied into every contract of employment and what it means is that the employer must not act in such a way, without reasonable and proper cause, which is intended to and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. The Claimant confirmed by letter to the Tribunal dated 8th November 2019 that the breach he relied on was the Respondent’s failure to adequately provide redress for his grievances. Findings of fact The Claimant’s employment and health issues in the run up to his grievance in April 2019
Findings of fact
[7]The Claimant’s employment commenced in January 2015. Between November 2015 and November 2018 (page 31) he had been off sick on 15 occasions mostly for a period of between one and four days but with two longer periods in February 2018 (10) and July-August 2018 (25).[8]The Claimant made a request to reduce his hours in January 2018 (page 42) referring to being unable to be on the phone all day, particularly the stress of the afternoons. This application was refused (page 45). I find that the Claimant did not then take the matter any further with the Respondent (until he re-applied in October 2018 – see below).[9]The Claimant received a verbal warning in June 2018 about his absence level (page 88) from his then manager Mr Campbell. The Respondent operates a scoring system for frequent short-term absences whereby a score of over 200 raises a trigger and the Claimant’s score at this point had been 784 (page 84). He confirmed at that point that he had not been diagnosed with anything specific (page 86). The Claimant did not appeal this verbal warning.[10]After the July-August 2018 absence the Claimant had a return to work interview with Mrs Smith (page 55). He reported that his absence had been due to work-related stress and that he may request a reduction in his hours (which he later successfully did – see below). He said he was feeling better (page 56) and that he would tell his manager if he needed any more help, including if time away from calls was required. In the context of that discussion at the time I find this to be a reference to stepping away from his desk and taking a short break after eg a difficult call, which was permitted and not a reference to being allocated different non-call duties. The Claimant was not asking to be given different duties or saying he wanted a different non-call based role.[11]The Claimant had a further absence of a day in September 2018 and had another return to work interview on 21st September 2018 (page 58) saying that the problem was a migraine and that he was seeing an optician. He was advised about eye care vouchers. He mentioned possible breaks from his screen due to his eyes. His score was now 1332.[12]The Claimant saw the Respondent’s occupational health adviser on 25th September 2018 who advised that he was fit for work and that he needed to discuss his stomach condition with his GP. Despite claiming long-term stomach problems he had not been diagnosed with an underlying condition and had to be advised to go back to his GP about it. She advised that he discuss what he said about stressful working conditions with his manager. Although he said he had no ‘down time’ there was no mention about the allocation of different duties or wanting to change roles into a non-call (ie admin) role.[13]He was absent again on 23rd October 2018 and had another return to work interview on 25th October 2018 (page 61) citing mild food poisoning. By now his score was 1862 (page 62). His previous verbal warning was discussed (page 62) and his current score referred to. This was reasonable. He told Mrs Smith that he had had some tests done by the GP and was awaiting results and that he would keep her updated. He reported the tests were still ongoing at the next return to work interview on 3rd December 2018 (page 64), the issue on that occasion having been bowel issues. His score was now 2926 (page 65) and he was advised his absence would continue to be monitored and to say if he needed further help (page 65).[14]Taking into account the above findings of fact I find that the Respondent was systematically and regularly conducting meetings with the Claimant about his absences and he was aware that his score was high and that his absences reasonably continued to be a concern. The Respondent had taken occupational health advice. The Claimant had in none of these meetings during this period said that he wanted to do non-call duties some of the time or transfer to an admin ie non call-based role, which given at times he was reporting stress, would have been the opportunity to do so. Instead he applied for a reduction in his hours in October 2018 which was successful and which I find based on his oral evidence helped his symptoms to an extent. There was no mention of a back issue until the February 2019 meeting (see below).[15]The Claimant said he had applied for an admin (ie non-call based) role in November 2018 (page 165) of which Mrs Smith seemed unaware (WS para 9) although that was consistent with him saying that it had been made to his previous manager Andrew Campbell and that it would in any event have been considered by another manager, Gill Scott. The Respondent’s case was that it was not aware of any formal application for this role but did not produce evidence from Gill Scott to the effect that none had been received. I therefore find he did make this application whether formally or informally. The Claimant did not get an interview for this role (WS para 16) but this is not a matter he raised a grievance about at this time or mentioned to Mrs Smith in the return to work interviews in December 2018 and February 2019 even though he did say that the reduction in his hours had helped (page 65). By November 2018 his absence score was 1862 (page 62) and if the Claimant now says that this application was in effect a sign he wanted to move away from call-based duties which he was struggling with for health reasons, he was not however telling the Respondent that this application was made for this reason or following up when he did not get an interview. He did not raise a grievance for around a further 6 months.[16]The Claimant was absent on 14th February 2019 because of his stomach and back (page 67). He was still saying that he was having tests and still did not report a diagnosis (page 68). His score was now 1666 and Mrs Smith raised the absence levels as still being a concern, which was reasonable.[17]The Claimant’s case was that Mrs Smith at the end of this meeting then started to discuss his performance, namely his after call work (ACW) rate (the percentage of his work spent after the call is finished completing the work on that call on the system), which was too high at 29% (the Respondent’s expected rate is 11%). I find the timing of this discussion to have been rather inept because a discussion about work performance should have been done at a separate time to a discussion about health and absences and should reasonably have been documented even if it was only an informal discussion. However I find that Mrs Smith did not threaten the Claimant with dismissal or disciplinary action. The Claimant interpreted what was said as meaning that if his performance did not improve, disciplinary action might follow but what Mrs Smith had in fact said was that further steps or an investigation might follow (pages 156D,157). The Claimant jumped to the conclusion that this meant he was being threatened with disciplinary action, when he was not. Although this part of the meeting was mis-handled, the Respondent was entitled to say that it was concerned about his performance.[18]I find that Mrs Smith told the Claimant in this discussion about his ACW that she herself had monitored his calls over a day. I find based on Ms Stallen’s oral evidence that even an employee with no performance issues has two of their calls listened to per month. I find based on Mrs Smith’s oral evidence that the Claimant was not the only employee for whom a whole day’s calls had been listened to. I find based on Mrs Smith’s oral evidence that it was the Respondent’s practice that it is only the employee’s manager who would listen to a call from a team member and not delegate that task to someone else and that it was usual practice listen to employees’ calls on a regular basis. Whilst a whole day was listened to for the Claimant his ACW was at 29% when the target is 11% so such length of monitoring was justified to give the Respondent a clearer picture.[19]The Claimant said in his grievance (page 132) that Mrs Smith had referred to another member of staff conducting the monitoring for a day. By the time of his appeal meeting (page 164) he was saying that what he had been told was that another employee had listened to the calls over two days (page 166). I find again this was the Claimant jumping to conclusions and catastophising what he had in fact been told, in the same way as he had about being told that further performance steps might be taken.[20]I find that the Claimant also misinterpreted what Mrs Smith said about him going off sick in the past after a performance discussion. Mrs Smith did not say (page 156D) that he always went off sick after a performance discussion, what she said was that he had gone off sick after the 18th February 2019 discussion and that that was not the first time this had happened. The Claimant interpreted this at the appeal stage (page 166) as her saying that whenever he was spoken to about his performance he went off sick. Mrs Smith was factually correct (table, top page 179, appeal outcome).[21]The Claimant then went off sick on 19th February 2019 and did not return to work, resigning on 29th July 2019. He was signed off for stress or work-related stress during this period (pages 70-75). The Respondent referred him again to occupational health on 16th April 2019 (page 130). His IBS and back problems were referred to but I find the main issue in the report was the work-related stress. The advice was that the Respondent meet with the Claimant to discuss those stressors. That meeting never occurred. No further action had been taken by the Respondent (or threatened by it) in relation to the ACW performance issue or the Claimant’s absences. The Claimant’s grievance[22]The Claimant raised a grievance on 23rd April 2019 (page 132-133) under the Respondent’s Harassment policy about his manager Ms Cochran (now Mrs Smith). At this point the Claimant had been off sick since 19th February 2019 with work-related stress. He raised four complaints, firstly that Ms Smith had excluded him from non-call duties despite being aware of his bowel condition. Secondly he said that on 18th February 2019 Mrs Smith had told the Claimant that she had had a another member of staff listen to the Claimant’s calls for a day because of the high level of his after call work (ACW), at a time when she was already aware that he had back problems which might affect his performance. Thirdly he raised an issue about the way his request for reduced hours in October 2018 had been handled (although that request had been approved) in terms of the length of time taken to process his request and a mistake on his wages after his hours had reduced. Fourthly he said that the impact of his health on his performance had not been taken into account and that his requests for non-call duties and for a reduction in his hours had been ignored, despite being signed off work for stress in July 2018.[23]Ms Stallen held a grievance meeting with the Claimant on 10th May 2019 (page 154). That meeting had been re-arranged from 23rd April 2019 so that the Claimant could bring someone with him from You First Advocacy as his companion (Mr McGinnagle) (pages 135-138, 141-143). Allowing Mr McGinnagle to attend this meeting and the appeal meeting (rather than a fellow employee or trade union representative) went beyond what the Respondent was legally obliged to do or obliged to do under its policy (page 140C).[24]I find that Ms Stallen went through the issues raised by the Claimant in his grievance in a systematic manner (pages 154-156) dealing in turn with his complaints about the allocation of non-call duties, the monitoring of his calls and the impact of his health on his ACW rate. She asked him to explain what he meant by other employees being treated more favourably over the allocation of non-call duties and clarified that this was what he was referring to when he used the term ‘passive abuse’. The Claimant explained that in relation to the call monitoring that Mrs Smith had said that he was in real trouble and that ‘something was going to happen’. The meeting concluded with Ms Stallen agreeing to investigate the issue of the allocation of the non-call work, the issue of whether Mrs Smith had said that it was someone else (not her) who had listened to the calls, Mrs Smith’s management style and whether it was overbearing as claimed and said she would talk to others in the Claimant’s team. The Claimant also raised the volume of calls between 12pm and 3pm. She asked him if there was anything else he wanted to add and advised he contact her if he needed to tell her anything else. The only outcome suggested by the Claimant which might resolve matters (page 155) was an investigation of Mrs Smith but he did not suggest anything further, for example that a possible solution was moving into another team to do non-call admin work. I therefore find that the hearing was thorough and taking into account his oral evidence, the Claimant was given a full opportunity to state his case, including in relation to his complaint that his health was not being taken into account.[25]Ms Stallen then interviewed four members of the Claimant’s team (pages 156A, B, C and E) including Chris Malone who the Claimant had mentioned had witnessed an incident between the Claimant and Mrs Smith. I find these interviews to be rather brief but when taken overall they were sufficient. They showed no particular issue within the team as regards Mrs Smith’s management style or behaviour. Ms Stallen also interviewed Mrs Smith (page 156D) who said that it was only she who had listened to the Claimant’s calls and that she had not mentioned a disciplinary although she had referred to possibly taking things further if the Claimant’s performance did not improve. She confirmed she had had no input into the October 2018 shift change request (apart from forwarding on the request). I find that the discussion recorded in the interview notes about the allocation of non-call duties did not clearly make the point made by Mrs Smith in her oral evidence, that the allocation of any non-call work was a decision made by the Call Manager or the Resource Manager, and not by her. However she said that the Claimant had not applied for any vacancies in non-call admin work. She also said that the February 2019 meeting had not been the first time she had discussed performance with the Claimant and he had then gone off sick.[26]Ms Stallen wrote to the Claimant on 31st May 2019 with the outcome (page 157). The wages issues was now resolved. The complaint about his October 2018 request for reduced hours being delayed was reasonably not accepted given the Claimant works in a team, others of which will also have health and personal issues; in any event that request had been allowed and I find based on the Claimant’s oral evidence that it had helped his bowel symptoms to an extent.[27]In relation to the complaint about the monitoring of his calls Ms Stallen recounted to the Claimant what Mrs Smith had said, namely that she had not said it was another employee who had listened to the calls because that was her manager’s role and she did it herself. She also told the Claimant that Mrs Smith said that she had not mentioned disciplinary action but that she had said that if his performance did not improve there could be a ‘formal investigatory’. I find this was not quite what Mrs Smith had said to Ms Stallen ie that there might be a need to take it further (page 156D) which is vaguer and less formal sounding than saying there might need to be a formal investigation. In relation to the complaint about the allocation of non-call work Ms Stallen reported her conclusion that it was usually new joiners who were not fully call-trained who had been called in to help with non-call work and noted that the Claimant had never applied for an administrative role.[28]In relation to Mrs Smith’s management style Ms Stallen reported her findings from the interviews that Mrs Smith did not act inappropriately as their manager.[29]Ms Stallen concluded that going forward that performance should not be brought up in return to work interviews but that performance issues still needed to be addressed. She reported what Mrs Smith had said about the Claimant in the past going off sick when spoken to about his performance. Taking into account the above findings of fact I find that Ms Stallen addressed the issues raised by the Claimant, following her own investigations. The grievance was not handled perfectly but it addressed what the Claimant was raising.[30]I therefore find that Mrs Stallen had dealt with the various issues the Claimant had raised by investigating what he said and coming back to him with her conclusions. I find that the suggestion about return to work interviews and performance discussions was not a finding but a recommendation and I find that to be sensible because it had been inept of Mrs Smith to deal with performance at the end of the February 2019 return to work interview, rather than dealing with it separately. The Respondent was in effect saying that the Claimant had had a point when he raised that particular issue.[31]I have found (see findings of fact above) that the Claimant did in fact make an application for an admin role in November 2018 such that Ms Stallen’s conclusion that he hadn’t was not correct but I do not find that taken overall this means that his grievance was not addressed; if it had been taken into account I do not find it would have affected the outcome because the Claimant was not asking to be moved into an admin role as a grievance outcome in any event. The appeal[32]The Claimant appealed the grievance outcome (page 159). His complaint was that his grievance had not been looked at in any significant manner but I have found that it addressed what the Claimant had raised to a sufficient degree. It was also handled in line with the Respondent’s policy (page 140B-C). The Claimant disagreed with the outcome but that does not mean there had not been an investigation into the issues he had raised and a conclusion reached based on the results of those investigations. He said that the grievance did not resolve matters but he had not said what he wanted the outcome to be, beyond an investigation as to what he said about Mrs Smith, which had now happened and which accepted that she should have dealt with the performance issue separately to the return to work interview. The Claimant still challenged Mrs Smith’s version of events about someone listening to the calls for two days (page 164). Whilst he may have disagreed with her account, Ms Stallen accepted Mrs Smith’s account of what she had told the Claimant she had done, namely listed to a day’s calls herself for a justifiable reason but Mrs Campbell said she would look at it again. Mrs Campbell also discussed the allocation of non-call duties in the context of the Claimant saying that it was stressful working 7.5 hours a day on calls and identified that the time he in fact spent on calls (67% in October 2018, before he raised the back issue and at a time the Respondent had been advised by the occupational health specialist that he was fit for work) was less than that of colleagues (page 165-166). Mrs Campbell also discussed with the Claimant (page 166) the support in July and September 2018 before he applied to reduce his hours in October 2018. Mrs Campbell asked the Claimant to say what he wanted as an outcome but he said what he wanted was the information he had requested at the grievance hearing (about the workload between 12-3pm which Ms Stallen had not provided in her response). The Claimant did not suggest, as again he could have done, that he be considered for a further change in his hours or ask if there were any administrative ie non- call roles he could be considered for, once he returned from sick leave.[33]At the end of the meeting (page 167) Mrs Campbell said she would amend the errors in the original minutes (which I find not to be significant errors) and find out if the Respondent had been recruiting in January 2018 when the Claimant had first applied for a reduction in his hours. Mrs Campbell picked up the question about the workload between 12 and 3pm which the Claimant had raised in the grievance hearing and said she would revisit Mrs Smith’s comment about going off sick after performance reviews. She also said she would review the call listening incident.[34]Mrs Campbell wrote to the Claimant on 9th July 2019 with the appeal outcome (page 178). She came back to him on the three areas he had asked for further information (page 179 bullet points 2-4). She provided justification for Mrs Smith’s comment about going off sick in the form of a table (page 179).[35]Mrs Campbell analysed the two stress related absences (page 179, first bullet point) and identified the support the Respondent had given. The most recent stressrelated absence apart from the current one had been the July –August 2018 one, the ones after this (until the current one) being for a variety of other reasons.[36]Mrs Campbell told the Claimant again what Mrs Smith had said about monitoring his calls herself over a day (second bullet point).[37]Mrs Campbell then turned to the allocation of non-call based duties within the admin team (third bullet point) and concluded that in the light of the Claimant’s job description he had no entitlement to non-call based work. I find based on Mrs Smith’s oral evidence that in any event taking a call-based member of staff away from call handling to help with admin work was not her decision but that of the Call Manager or the Resource Manager looking at the call flow – the Claimant was saying in his grievance that Mrs Smith was singling him out by not giving him a fair chance to do this kind of work but she was not the person who took those decisions. The Claimant had told the Respondent about his health problems and had had his request for a shift changed approved after an occupational health report concluding he was fit to work. She also considered what the Claimant had said about 7.5 hours on the phone being stressful having conducted research into the relevant figures for October 2018. She concluded that taking calls for 5 hours a day was not excessive and in line with that of the other compared employees. She also considered that complaints were particularly stressful but identified that the Claimant was not dealing with as many of these as some of his colleagues.[38]Notwithstanding the grievance process was now complete Mrs Campbell responded to a further email from the Claimant (page 185). He said again that the Respondent should have allocated him non-call work (para 6 page 185) because he had raised anxiety when he asked to a reduction in his hours but the Claimant had been successful in that application and although he had also applied for an admin role in November 2018 had not told the Respondent why this was or tell Mrs Smith (or another manager or HR) that he had made it for a reason connected to his health. At this time the medical information the Respondent had was that the Claimant was having tests for his stomach problem and latterly seeing an osteopath for his back, neither of which should have alerted the Respondent to a significant mental health problem arising from workbased stress running up to the final absence. He had been off sick with stress in JulyAugust 2018 but the occupational advice was then that he was now fit for work. The Claimant still did not accept that call monitoring had been justified in his case (para 10 page 185) despite his ACW score of 29%. The Claimant still did not accept that Mrs Smith had been factually correct in what she said about him going off sick (para 23 page 186) saying that the current absence should not be taken into account, but it had not been. He asked for some further statistics over a longer period (final para page 186) which Mrs Campbell duly provided (page 184). I find that apart from querying the length of the period for which the statistics had been provided (which he was now given in any event) the Claimant was going over old ground. Even at this point Mrs Campbell was still asking the Claimant what he wanted as an outcome and saying that she hoped he would come back to work.[39]Taking into account the above findings of fact I find that Mrs Campbell had conducted a thorough re-examination of the Claimant’s grievance and responded to the further matters he raised in his appeal. He still had not said what he wanted the outcome to be, despite being asked, and whilst he was still unhappy with the Respondent, he had had his issues investigated again by Mrs Campbell and a thorough response provided in the appeal outcome letter and subsequent email. He did not like the outcome but that does not mean the grievance process had not been followed and his grievance addressed. The issues he had raised had been addressed with an explanation by the Respondent. It was therefore not the case that the Respondent had not addressed any of the issues he had raised (C WS para 19).[40]The Claimant did not like the outcome of his grievance but it had been addressed. Although he had criticised the way AWC was assessed (he said not taking into account legitimate activities such as buddying or helping out a new colleague) no action had been taken against him about his performance prior to his resignation. The Respondent had considered his health issues based on the information he was providing in the return to work interviews and in the occupational health advice it was receiving, taking into account the above findings as to his employment history prior to his grievance. The Respondent took no action against him for the further absences after the verbal warning in July 2018, save to say, reasonably, that the absences were still a concern, the absences being objectively running at a high level prior to going off sick for the extended period from 19th February 2019.
Relevant law
[41]A constructive dismissal (and thus a dismissal for unfair dismissal purposes) is defined in s95(1)(c) Employment Rights Act 1996 as where the employee terminates the contract (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[42]In Western Excavating v Sharp [1978] IRLR 27 it was identified that a constructive dismissal must involve a repudiatory breach of contract, going to the root of the contract or which shows the employer no longer intends to be bound by one or more of its essential terms. The burden of proof was on the Claimant to show that there was a fundamental breach of contract, it contributed to why he resigned and that he did not delay, thus affirming the contract.[43]The term identified by the Claimant was the implied term of trust and confidence under which an employer should not without reasonable cause act in such a way calculated or likely to destroy or seriously damage the mutual trust and confidence between employer and employee. The employer’s conduct as a whole must be considered including as to its cumulative aspect (Woods v WM Car Services (Ltd [1981] ICR 666). In Malik v BCCI [1988] AC 20 it was identified that the employer’s conduct needs to be viewed objectively to establish whether it is likely to destroy or damage that trust and confidence the employee is reasonably entitled to have in the employer, looking at all the circumstances. As to the reasonable and proper cause part of the test, even if the employee’s trust and confidence in the employer is in fact undermined, there may be no breach if, viewed objectively, the employer’s conduct was not unreasonable (Sharfudeen v T J Morris t/a Home Bargains EAT/0272/2016). A breach of this implied term is of its nature repudiatory (LB of Waltham Forest v Omilaju [2005] IRLR 35). I considered the four stage test set out in Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1.[44]Taking into account the above findings of fact I conclude that the Respondent did not breach the implied term of trust and confidence in the way it addressed the Claimant’s April 2019 grievance, whether looking at it as a discrete matter (ie that entire process) or whether considering the process’s constituent elements on a cumulative basis. Considering it objectively and in the round the Respondent addressed the matters he raised in his grievance during that process and took into account in that process what he was saying about his health conditions, based on the information it had about those conditions.[45]The Claimant did not like the outcome and his confidence in the Respondent may have been undermined, but viewed objectively the Respondent had not breached the implied term.[46]Applying the Malik test therefore in the light of the above findings of fact, the Respondent had not, considering it objectively, conducted itself in a way calculated and likely to destroy or seriously damage the relationship of trust and confidence. There was therefore no breach of contract by the Respondent. When the Claimant resigned it was therefore not because the Respondent had breached his contract in a way amounting to a constructive dismissal.[47]The Claimant was not therefore constructively dismissed by the Respondent and there was no dismissal for the purposes of an unfair dismissal claim.