Mr S Morriss v Leidos Industrial Engineers Ltd: 3205717/2022

EMPLOYMENT TRIBUNALS

Case No 3205717/2022

Between

Mr S MorrissClaimant

Leidos Industrial Engineers LtdRespondent

Before

Employment Judge Howden-Evans

Members

Ms M Legg

In person for claimant

Mr D Soanes (instructed by Solicitor) for respondent

Date 31 July 2024

JUDGMENT

[1]The Claimant’s complaint of constructive unfair dismissal is well founded. The Respondent has unfairly dismissed the Claimant.

[2]The Claimant’s complaints of detrimental treatment and dismissal because of protected disclosures are not well founded and are dismissed.

REASONS

[1]References to the hearing bundle appear in square brackets throughout this Judgment.

Background

[2]The Respondent designs and manufactures special purpose tooling and equipment for the automotive industry. It employs 33 employees from a site in Wickford Essex.

[3]The Claimant commenced employment with the Respondent as a cleaner/handyman on the 15th January 2018 and signed his employment contract on 18th January 2018.

[4]On 18th November 2022 the Claimant contacted ACAS. ACAS early conciliation procedures continued until 21st November 2022.

[5]On 25th November 2022, the Claimant resigned from his position with the Respondent in circumstances that he asserts amount to constructive dismissal.

[6]The Claimant presented his ET1 claim on 23rd November 2022 [2 to 16]. This alleged unfair constructive dismissal, detrimental treatment and dismissal following making a protected disclosure and a claim for notice pay.

[7]On 20th December 2022, the Respondent submitted their ET3 Response [23 to 34]. At a preliminary hearing on 6th July 2023 Regional Employment Judge Burgher agreed a List of Issues with the parties.

The Issues

[8]At the start of the final hearing, the employment judge discussed the List of Issues. By closing submissions, the Issues to be determined were: Constructive dismissal

The Issues

[1]Did the Respondent do the following things:1.1 on 12th October 2022, attempt to take away the Claimant’s contractual entitlement to have an additional tea break;

1.2 fail to conduct a fair and open disciplinary process, or follow the ACAS Code on 21 October 2022;

1.3 allege trumped up charges levelled against the Claimant;

1.4 issue a final written warning to the Claimant on 3rd November 2022; and/or

1.5 fail to conduct a fair and open appeal process, or follow the ACAS code on 14th November 2022.

[2]Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1 whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and

2.2 whether it had reasonable and proper cause for doing so.

[3]Did that breach another term of contract? If so was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the Claimant was entitled to treat the contract as being at an end.

[4]Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.

[5]Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach. Protected disclosure

[6]The Respondent accepts the Claimant made a protected disclosure by letter dated 8th August 2022.

[7]Did the Respondent do the following things:7.1 attempt to take away the Claimant’s contractual entitlement to have an additional tea break on 12 October 2022;

7.2 fail to conduct a fair and open disciplinary process or follow the ACAS code on 21st October 2022;

7.3 allege trumped up charges levelled against the Claimant;

7.4 issue a final written warning to the Claimant on 3rd November 2022; and/or

7.5 fail to conduct a fair and open appeal process, or follow the ACAS code on 14th November 2022?

[8]By doing so, did it subject the Claimant to detriment?

[9]If so, was it done on the ground that he made a protected disclosure?

[10]Was the Claimant constructively dismissed because he made a protected disclosure? The Final Hearing 9. The case was heard by an employment tribunal siting remotely via video link. The Claimant has represented himself throughout these proceedings; Mr Soanes, solicitor has represented the Respondent. During the 3 days listed (1st to 3rd May 2024) we were able to hear all the witness evidence and oral closing submissions. The Tribunal met to consider its decision on 31st May 2024. The Employment Judge apologises to the parties for the delay in providing this decision. 10. At the outset of the Hearing, we discussed the timetable and order of evidence. The employment judge made enquiries about adjustments; no participant required adjustments or an interpreter. Initially the Claimant attended the video hearing from a hotel room located close to the tribunal, but we had trouble with the strength of his internet connection. It was agreed that while the tribunal completed their reading, the Claimant would come to the tribunal to avoid internet connection difficulties. Thereafter the Claimant attended the video hearing from the tribunal. Before hearing witness evidence, as agreed with the parties, the Tribunal read extracts from the bundle of documents, viewed CCTV footage and read the witnesses’ statements. As the hearing had only been listed for three days the parties were informed that the tribunal would only read the documents to which our attention was drawn specifically, or which were referred to in the witness statements or in oral evidence.

[11]The Tribunal made a number of case management decisions during the hearing – reasons for those decisions were given orally at the time and are not repeated here. For instance, at the start of the final hearing, the Claimant applied for disclosure of his yearly assessments from 2020 and 2021. The Respondent accepted there were no concerns about the Claimant’s performance in 2020 or 2021; the Claimant was noted to be a good worker. Given this concession, the Tribunal confirmed it was not necessary for these documents to be added to the bundle.

[12]We heard evidence on oath from:12.1 the Claimant;

12.2 Ms Bishop, the Respondent’s Office Manager who issued the final written warning; and

12.3 Mr Kelly, the Respondent’s Works Manager, who considered the Claimant’s appeal against the final written warning.

[13]All witnesses gave evidence on oath. In relation to each witness, the procedure adopted was the same: the Tribunal had read each witness’s statement, there was opportunity for supplemental questions (or in the Claimant’s case, for the Claimant to address matters raised in the Respondent’s witnesses’ statements) before questions from the other side, questions from the tribunal and any re-examination (or in the Claimant’s case, opportunity for the Claimant to clarify anything he felt he had not been able to explain fully in answering questions).

Findings of Fact

[14]We have only made findings of fact that are required to determine the issues in the List of Issues. Other matters have been raised by the parties in oral or written evidence; we have not engaged with these, save where they were relevant to the determination of the issues.

Background

[15]The Claimant commenced employment with the Respondent as a cleaner/handyman on the 15th January 2018. He had previously worked for the Respondent as a temporary cleaner having been assigned to the Respondent by Reed job agency. This assignment was to cover Mr Benjafield’s sickness absence in 2017 but when Mr Benjafield returned to work the Claimant was asked to stay on and work alongside Mr Benjafield. Between January 2018 and June 2019 both the Claimant and Mr Benjafield were employed by the Respondent to work 8:00 am to 4:30 pm shifts.

[16]The Claimant’s job title of Cleaner / Handyman did not accurately capture the tasks he was undertaking. He was also a Forklift Truck Operator and Machine Operator. He was noted to be a good worker and prior to 2022 there had been no concerns about his performance. Issues 1.1 & 7.1: on 12th October 2022, did the Respondent attempt to take away the Claimant’s contractual entitlement to have an additional tea break?

[17]The Respondent operates four shifts: early, day, late and night. The day, late and night shifts have two 15-minute paid tea breaks and 30-minute unpaid lunch break. The early shift has one 15-minute paid tea break and 30-minute unpaid lunch break, but employees are able to finish 15 minutes earlier (in place of the second 15-minute paid tea break).

[18]In June 2019, at the Assembly / Inspection Supervisor (Mr Clarke)'s insistence, for operational reasons, the Claimant’s shift pattern was changed from day shift (8:00am to 4:30pm) to early shift (6:00am to 2:15pm). Mr Benjafield was assigned to a shift that started later in the day, which benefited from shift premium pay. This change was imposed on the Claimant – he was given an ultimatum to accept the change or lose his employment. The Claimant did not receive a raise or benefit from shift premium pay (like Mr Benjafield). The Tribunal accept this change was a substantial change to the Claimant’s terms and conditions of employment, not a minor change as has been suggested by the Respondent.

[19]In his previous employment, the Claimant had been a union representative – he was aggrieved the change was being unilaterally imposed and insisted that he be allowed to take an additional 15-minute break. Mr Clarke verbally agreed to the Claimant’s request. Mr Clarke did not make a written record of this variation to the Claimant’s employment contract. However, from June 2019 until the end of his employment, the Claimant took a 15-minute afternoon break at 1:15 pm each day. The Tribunal accept the Claimant’s evidence that most staff, including Mr Kelly had, on a number of occasions, seen the Claimant sitting in his car taking this additional break at 1:15pm. We prefer the evidence of the Claimant on this matter, as his account has remained consistent in contemporaneous documents, his witness statement and oral evidence.

[20]Mr Clarke left the Respondent in September 2022 and Ms Bishop became the Claimant’s line manager. She was not aware of Mr Clarke’s verbal agreement and when she noticed the Claimant appeared to be taking an extra 15-minute break and she decided to take action about it.

[21]On 12th October 2022 the Claimant attended a meeting with Ms Bishop, Ms Pullen (HR officer) and Ms Cunningham (notetaker). Ms Bishop discussed the Claimant’s contract of employment and attempted to persuade him to relinquish the additional 15-minute break. They were concerned that other early shift staff would seek an additional 15-minute break. They made it clear that the Claimant could not continue to work the hours he was working and take the additional 15- minute break. The Claimant raised an (unsuccessful) grievance about the situation. This issue had not been resolved by the time the Claimant ceased employment with the Respondent. The Claimant continued to take the additional 15-minute break, but the Respondent had indicated he would need to change to a different shift pattern or lose the break in the near future. The Protected Disclosure

[22]As a Forklift Truck Operator, in 2022 the Claimant was concerned that he was operating a dangerous piece of machinery in the “Goods In” area where other staff members felt able to wander through the area during their rest breaks.

[23]On 5th August 2022 the Claimant attended a Forklift Truck Operators’ refresher course, which prompted him to write to Ms Bishop on 8th August 2022 expressing his genuine health and safety concerns (the agreed protected disclosure [239]). This letter highlighted the fact that his colleagues often congregated near the Goods In area where he was required to operate a forklift truck.

[24]The Respondent took the Claimant’s concerns seriously and a companywide toolbox talk was presented on the 31st August 2022 explaining the responsibilities of forklift drivers and pedestrians. The Respondent also came up with a plan (which included creating a new break area) to ensure the Goods In area would become pedestrian free, albeit this work had not been completed by the time the Claimant ceased employment with the Respondent. The Health and Safety “near misses”

[25]The Claimant continued to experience difficulties with colleagues walking aimlessly through the Goods In area whilst he was trying to operate the Forklift Truck and this continued to be a source of stress for the Claimant. Some colleagues including Mr Chrysostomou, ignored the Claimant’s attempts to keep the area pedestrian free and this resulted in workplace disputes between the Claimant and Mr Chrysostomou.

[26]In October 2022, the Claimant reported two Health and Safety “near misses”. Both incidents involved the same person, Mr Chrysostomou, walking through the Goods In area:26.1 on the 7th October 2022 the Claimant reported a health and safety near miss to Mr Smith, Production Manager; and

26.2 on the 18th October 2022 the Claimant reported a different health and safety near miss to Ms Bishop.

[27]The Tribunal note the Claimant was not asked about either of the near misses he had reported prior to the invitation to his disciplinary meeting. Issues 1.2 & 7.2: did the Respondent fail to conduct a fair and open disciplinary process or follow the ACAS code on 21st October 2022? and Issues 1.3 & 7.3: did the Respondent allege trumped up charges levelled against the Claimant?

[28]On 18th October 2022, Ms Bishop received a written complaint from Mr Chrysostomou about the Claimant. This said “I have an ongoing issue with [the Claimant] trying to crash into me with his equipment. I arrived to work today and he tried to hit me with a wheelbarrow which he was running towards me with. I had to jump out of his way so I told him that he needs to be careful before he seriously hurts someone. In response he was aggressively swearing at me and told me to get out of his way next time.” This complaint was dated 18th October 2022.

[29]Also on 18th October 2022, Ms Bishop received a statement from Mr Kelly stating: “I noticed the door to the unit 5 understairs cupboard had been badly damaged on Thursday 13th October and asked around to see what had happened. When I asked [the Claimant] he replied that he had damaged the door accidentally as he thought somebody may have been messing about, also he said the door sometimes sticks. The lock was fitted to the door the day before as we have been told not to keep anything under the stairs as it is a fire risk. [The Claimant] was not told the door was now to be kept locked and he keeps some cleaning products in there. It has taken considerable force to break the lock.”

[30]On 21st October 2022 Ms Bishop received a second complaint from Mr Chrysostomou about the Claimant [284]. This alleged that on 6th October 2022 the Claimant had been moving a “full (heavy) swarf bin”, had seen Mr Chrysostomou but instead of stopping had “steered it towards [Mr Chrysostomou] as if he was trying to hit [Mr Chrysostomou] with the swarf bin” and that the Claimant was “acting in a dangerous way”. This handwritten complaint was dated 6th October 2022. It had been given to Mr Smith, who emailed it to HR on 12th October 2022.

[31]By letter emailed on 21st October 2022 [321] the Claimant was invited to a disciplinary meeting to discuss three conduct allegations:31.1 “Alleged reckless and dangerous behaviour while working. On 6th October 2022 you were pushing a swarf bin through the passageway that is narrower due to the quarantined bins. You made no attempt to check the area is clear before you turned into the passageway and you made no attempt to pull back the bin, which had the potential due to size and weight to inflict substantial harm if it came into contact with the nearby employee”.

31.2 “On 18th October 2022 you were pushing a wheelbarrow at speed in the goods in area where there were other employees. You narrowly missed an employee who had to move out of the way to avoid being hit”.

31.3 “Alleged company property damage. On 13th October 2022 you forcefully pushed in a cupboard door causing unrepairable damage.”

[32]The Claimant attended a disciplinary meeting on 28th October 2022. Ms Bishop chaired the meeting and it was also attended by Ms Pullen (HR adviser) and Ms Hussain (HR Co-Ordinator).

[33]The Respondent relied upon two extracts of CCTV footage which they showed to the Claimant for the first time during the disciplinary meeting on 28th October 2022:33.1 The first CCTV clip is dated 6th October 2022. Having viewed this CCTV extract, the Tribunal note the Claimant can be seen pulling a heavy bin through a narrow passageway. We note the Claimant is pulling a bin (rather than pushing a bin as alleged). He doesn’t appear to be aiming for anyone. An independent, objective viewer could not describe the Claimant’s actions as “acting in a dangerous way” (as Mr Chrysostomou did) or behaving “in a reckless and dangerous manner” (as the invitation to disciplinary hearing did). The CCTV images bear no relation to the description in the Respondent’s invitation to disciplinary meeting or Mr Chrysostomou’s account in his complaint. The Tribunal accept this allegation was a trumped up charge.

33.2 The second clip of CCTV footage is dated the 18th October 2022 and does show the claimant walking at speed through a narrow passageway pushing a wheelbarrow. He is not aiming the wheelbarrow at anyone but he is moving very quickly through the area. There was an altercation immediately after this incident between Mr Chrysostomou and the Claimant, which was captured on CCTV footage and witnessed by Mr Kelly.

[34]In her oral evidence, Ms Bishop had difficulty explaining the disparity between:34.1 her account of what she had believed at the time as stated in her witness statement and oral evidence (in which she explained she viewed the first two allegations (relating to moving the bin and the wheelbarrow) as “careless behaviour” rather than being “hugely reckless”); and

34.2 the allegations in the invitation to disciplinary meeting (which described these same incidents as reckless and dangerous behaviour). Having viewed the CCTV footage and considered Ms Bishop’s evidence, the Tribunal accept the first and second allegations were trumped up charges.

[35]Minutes of the disciplinary meeting record the Claimant explained that on 18th October he had to move quickly with the wheelbarrow as bags of aluminium had too much coolant in them and “Claudio” had asked him to take them out in the wheelbarrow. He said he had explained to Claudio he would have to take them out quickly as the wheelbarrow is not sealed and it leaks when it is transporting coolant. He also explained he was calling out “move quickly” to anyone that was in the Goods In area to try to get the wheelbarrow through quickly reducing the amount of coolant leaked on the floor. He said Mr Chrysostomou chose not to move from the area causing the Claimant to have to stop moving with the wheelbarrow. He denied aiming for Mr Chrysostomou or trying to hit Mr Chrysostomou with the wheelbarrow.

[36]At all times the Claimant admitted the third allegation (damaging company property) but said this was an accident. The Claimant’s account, immediately after the incident and throughout the disciplinary proceedings, was that he had used the cupboard for 5 years to store his cleaning products. He explained the Respondent had put a padlock on the other side of the door the previous day and had not told the Claimant about the padlock. The Claimant had tried to open the door, thought the door had jammed (as on a previous occasion a mop had slipped and wedged the door shut) and used his arm and shoulder to try to prise the door open. The Claimant’s account was on the third occasion of trying to prise the door open, the wood broke. The door had a wooden frame with two pieces of hard board between them. The Tribunal accept that as the door was not a solid door and had previously been damaged, it would not need “considerable force” to break the door.

[37]The disciplinary meeting on 28th October 2022 had started at 10.56 am. There was a short break with everyone rejoining the meeting at 11.57am at which time Ms Bishop said she had spoken to HR and as there were “three incidents in such a short time” she was giving the Claimant a final written warning. The Claimant immediately pointed out he had not had chance to attend a disciplinary hearing. The HR officers said that “disciplinary meeting” was the same thing as a disciplinary hearing. The Claimant pointed out he had worked for the Respondent for 5 years.

[38]In oral evidence, Ms Bishop admitted this was the first time she had conducted a disciplinary process and she had not read the ACAS Code of Conduct. Unfortunately, this meant there were a number of breaches of the Respondent's disciplinary procedure and/or the ACAS guidelines including:38.1 Merging the investigation meeting and disciplinary hearing into one meeting (with a very short break in between);

38.2 Ms Bishop being the investigating officer and determining the disciplinary outcome;

38.3 not providing the Claimant with any of the evidence that would be discussed, prior to the disciplinary hearing

38.4 not providing the Claimant with witness statements that were being relied upon; and

38.5 not advising the Claimant he could call witnesses.

[39]In the Grounds of Resistance, the Respondent admits that it hadn't shared evidence with the claimant ahead of the disciplinary meeting. It explained that sharing CCTV footage was difficult due to the size of the files, but the CCTV was viewed with the claimant during the disciplinary meeting. It also notes that the claimant had admitted damaging the door.

[40]On 2nd November 2022, the Claimant hit his head whilst trying to empty a swarf bin into a skip using a forklift truck. For the rest of his employment, there was an ongoing accident investigation, and the Claimant had been invited to attend an accident investigation meeting. Issues 1.4 & 7.4: did the Respondent issue a final written warning to the Claimant on 3rd November 2022?

[41]On 3rd November 2022 Ms Bishop wrote to the Claimant [350] confirming her decision to issue a final written warning stating, “If there are any other incidents of misconduct or noncompliance with the health and safety principles or any other unsatisfactory misconduct this may lead to a further disciplinary meeting taking place and ultimately your employment could be at risk with the company. After 18 months this final written warning will be disregarded for procedural purposes”

[42]The Claimant was understandably concerned that this warning made him vulnerable and that it gave colleagues such as Mr Chrysostomou the opportunity to continue to cause difficulties for the Claimant, knowing the Claimant was on a final warning. Issues 1.5 & 7.5: did the Respondent fail to conduct a fair and open appeal process, or follow the ACAS code on 14th November 2022

[43]On 8th November 2022, the Claimant appealed the final written warning, pointing out departures from the ACAS Code of Practice and the Respondent’s disciplinary procedures, including not having been provided with witness statements and evidence prior to the disciplinary meeting. He made a comprehensive request for witness statements, photos, cctv footage etc to be provided to him without delay so he could call witnesses to attend the appeal hearing.

[44]On 9th November 2022, the Claimant went home early as recent events were constantly on his mind, he was experiencing disrupted his sleep and his blood pressure was elevated [369]. Mr Kelly was concerned the Claimant was worried about the ongoing investigation into the accident on 2nd November, so he phoned the Claimant. The Claimant recorded this telephone conversation. During the conversation, the Claimant said “I’ve not been provided with anything in regards to evidence that [Ms] Bishop was working on ie statements, CCTV footage - the minimum amount that she showed me, there is before and after. All the things are in the [appeal letter] so if I was to have this meeting on Monday [referring to the appeal hearing] I’m still not up to speed with everything before….I would like the time to study all the stuff that was used to, I was gonna say convict me..” [464- 464]

[45]Mr Kelly spoke to Ms Milne (HR Lead) and phoned the Claimant for a second time that morning, telling the Claimant Ms Milne had said “it would be good for you and for us if you can make the meeting on Monday at 9. It’s to hear your appeal….you’ve seen the CCTV footage and there wasn’t any witnesses it was just the statements that were read out and so you have seen it all so there is nothing new to show you.” The Claimant explained “…Apparently [Mr] Chrysostomou made a statement, I have not had that”. Mr Kelly replied “They would have read out his statement at the disciplinary though” and the Claimant responded “Didn’t read it out at all”. We accept neither of Mr Chrysostomou’s statements were read out at the disciplinary meeting (or appeal meeting), nor was the Claimant provided with copies of them until these tribunal proceedings.

[46]By letter emailed on 11th November 2022, the Claimant was invited to an appeal meeting on 14th November 2022 which would be chaired by Mr Kelly.

[47]Ahead of the appeal meeting, the Claimant was not sent any of the evidence he had requested. At the time of the appeal hearing, Mr Kelly and Ms Milne (HR Lead) were aware that the Claimant had not received any of the evidence that Ms Bishop had relied upon in reaching her decision or any of the evidence he had requested in his grounds of appeal.

[48]The appeal hearing took place on 14th November 2022 and was attended by Mr Kelly, Ms Milne, Ms Cunningham and the Claimant. Mr Kelly started the meeting by reassuring the Claimant the accident on 2nd November was not going to result in any further disciplinary action.

[49]During the appeal hearing, the Claimant stated he couldn’t agree the disciplinary process had been followed correctly. The minutes [478 – 493] indicate Ms Milne stated the correct procedure had been followed and that there was no further evidence that should have been shared with the Claimant prior to the disciplinary meeting.

[50]After a short break the appeal hearing continued, and Ms Milne explained Mr Kelly would go through the letter of appeal with the Claimant. The Claimant explained he was accused of pushing the bin but CCTV showed he was pulling the bin. Mr Kelly said the Claimant was pulling the bin backwards into an area without looking. Mr Kelly raised the altercation the Claimant had with Mr Chrysostomou. The Claimant pointed out that Mr Kelly had witnessed it. The Claimant said it felt like Mr Kelly was suggesting the Claimant had been the aggressive one. Mr Kelly said they (ie Mr Chrysostomou and the Claimant) were both aggressive in the incident but Mr Chrysostomou was the one that had complained about it.

[51]The Claimant went on to say that his concern was that Mr Chrysostomou was involved and Ms Bishop had decided to only look at two complaints when the Claimant had reported loads of incidents to Mr Smith, the Respondent’s Production Manager. The Claimant asked Mr Kelly to view the whole footage before, during and after each incident and Ms Milne indicated she’d noted that request. Mr Kelly also agreed to look into the Claimant’s assertion that “Gavin” had previously pushed the door in, so the door was already damaged, and Gavin hadn’t received a warning. However, Mr Kelly also added “what you’ve got to realise is that breaking the door is a serious issue…that’s why it carries what it carries with the warning”.

[52]At the end of the appeal meeting Ms Milne explained Mr Kelly would look into the key areas from the final written warning and would get back to the Claimant confirming his findings. At this point the Claimant read out a written statement. On the morning of the appeal meeting the claimant had drafted his letter of resignation. At the end of the appeal meeting the claimant read his statement saying that he'd decided to resign and was giving the Respondent 2 weeks’ notice. This resignation statement included the comment “As management and the HR department went so far as issuing a final written warning, I feel that I am not welcome, appreciated or safe”.

[53]Other factual matters that we take into account in assessing the fairness of the appeal process:53.1 CCTV footage was not sent to the Claimant until 5th June 2023 (7 months after the appeal);

53.2 Mr Chrysostomou’s statements were not sent to the Claimant until 20th October 2023 (11 months after the appeal);

53.3 Mr Kelly’s statement was not sent to the Claimant until 5 June 2023.

53.4 Mr Kelly was a witness to the altercation with Mr Chrysostomou and also gave a witness statement in relation to the damaged door.

[54]Having resigned on 14th November 2022, the Claimant was fortunate to find work within a day or two and commenced employment as a butcher on 28th November 2022. Unfortunately, the Claimant was made redundant from this role four months later. The Law Relevant law – Constructive dismissal 53. Section 95(1)c Employment Rights Act 1996 explains there can be a dismissal when an employee terminates their contract, with or without notice, in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. This is known as a constructive dismissal. 54. In Western Excavating (ECC) Ltd v Sharp

1978 ICR 221

, CA, Lord Denning MR explained that for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract: ‘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, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.’

The Law

[55]A breach of the implied term of trust and confidence is a repudiatory breach of the contract (see Morrow v Safeway Stores

[2002] IRLR 9

, Ahmed v Amnesty International

[2009] ICR 1450

[56]In Malik v Bank of Credit and Commerce International SA (in compulsory liquidation)

1997 ICR 606

, the House of Lords confirmed that the implied term of trust and confidence means “neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.”

[57]This means in a constructive dismissal case, in relation to the employer’s conduct that is being complained of, the tribunal must consider 57.1. Whether, viewed objectively, there was no reasonable and proper cause for the conduct? And 57.2. Whether, viewed objectively, the conduct was calculated or likely to destroy or seriously damage trust and confidence?

[58]It is possible for the implied term of trust and confidence to be breached by a series of actions on the part of the employer that cumulatively amount to a repudiation of the contract. The Court of Appeal in Omilaju v Waltham Forest London Borough Council

2005 ICR 481

, CA, confirmed that, to constitute a breach of trust and confidence based on a series of acts (or omissions), the act constituting the last straw does not have to be of the same character as the earlier acts; nor does it necessarily have to constitute unreasonable or blameworthy conduct. However the last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely but mistakenly interprets the act as hurtful. As always, the test of whether the employee’s trust and confidence has been undermined in this context is an objective one.

[59]In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

, Underhill LJ in the Court of Appeal identified five questions to be asked by the employment tribunal in a case of constructive dismissal. “(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? (2) Has he or she affirmed the contract since that act? (3) If not, was that act (or omission) by itself a repudiatory breach of contract? (4) If not, was it nevertheless a part (applying the approach explained in Waltham Forest v Omilaju

[2005] ICR 481

) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? If it was, there is no need for any separate consideration of a possible previous affirmation. (5) Did the employee resign in response (or partly in response) to that breach?”

[60]In a case relying upon the breach of the implied duty of trust and confidence, it is not necessary to make a factual finding as to the employer’s actual (subjective) intention; it is sufficient to make a finding as to whether, objectively, the conduct complained of was likely to destroy or seriously damage the relationship of trust and confidence.

[61]When considering whether a breach of the implied term has occurred, it is not appropriate to ask whether the employer’s actions lay within the band of reasonable responses available to an employer – instead we should apply a purely contractual test, namely, asking whether, as a result of the employer’s conduct, the contract of employment had been repudiated. “Reasonableness is one of the tools in [the tribunal’s] factual analysis kit for deciding whether there has been a fundamental breach” per Buckland v Bournemouth University Higher Education Corporation

[2010] EWCA Civ 121

[2010] IRLR 445

. 9.

[62]In Buckland, the Court of Appeal clarified the correct test:(i) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Malik test applies;

(ii) If the acceptance of that breach entitled the employee to leave, they have been constructively dismissed;

(iii) It is open to the employer to show that such dismissal was for a potentially fair reason; and

(iv) If he does so, it will then be for the Tribunal to decide whether the dismissal for that reason, both substantively and procedurally falls within the range of reasonable responses and is fair.

[63]The employee must have resigned because of the employer’s breach and not for some other reason. In United First Partners Research v Carreras

[2018] EWCA Civ 323

the Court of Appeal held where an employee has mixed reasons for resigning, the resignation would constitute a constructive dismissal if the repudiatory breach relied on was at least a substantial part of those reasons. Relevant law – Dismissal following making a protected disclosure

[64]Employees who make protected disclosures have the right not to be dismissed as a result.

[65]Section 103A Employment Rights Act 1996 provides: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

[66]When an employer breaches S103A Employment Rights Act 1996, the dismissal is automatically unfair – the Tribunal does not need to consider whether the dismissal was reasonable in the circumstances.

[67]S103A also applies to constructive dismissals. The Tribunal needs to consider whether the protected disclosure was the principal reason that the employer committed the fundamental breach of the employee’s contract of employment that precipitated the Claimant’s resignation. When we consider what was the principal reason for the employer’s actions, we consider the reason that operated on the employer’s mind at the time. Relevant law – Detrimental treatment following making a protected disclosure

[68]Workers (which includes employees) who make protected disclosures have the right not to suffer a detriment as a result.

[69]Section 47B Employment Rights Act 1996 provides “(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—(a) by another worker of W's employer in the course of that other worker's employment…. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a) from doing that thing, or

(b) from doing anything of that description.”

[70]What is a “detriment” for the purposes of s47B Employment Rights Act 1996? In Ministry of Defence v Jeremiah

1980 ICR 13

, CA, Lord Justice Brandon said that ‘detriment’ meant simply ‘putting under a disadvantage’, while Lord Justice Brightman stated that a detriment ‘exists if a reasonable worker would or might take the view that [the action of the employer] was in all the circumstances to his detriment’.

[71]A key question in a detrimental treatment case is “whether the worker/employee was subjected to a detriment on the ground that he had made a public disclosure. There needs to be a causal nexus between the fact of making a protected disclosure and the decision to subject the Claimant to the detriment. In the Court of Appeal decision of NHS Manchester v Fecitt & Ors v Public Concern at Work, Lord Justice Elias explained: “….the Tribunal was satisfied that the employer had genuinely acted for other reasons. Once an employer satisfies the Tribunal that he has acted for a particular reason — here, to remedy a dysfunctional situation — that necessarily discharges the burden of showing that the proscribed reason played no part in it. It is only if the Tribunal considers that the reason given is false (whether consciously or unconsciously) or that the Tribunal is being given something less than the whole story that it is legitimate to infer discrimination in accordance with the Igen principles. “….liability arises if the protected disclosure is a material factor in the employer's decision to subject the claimant to a detrimental act. I agree with Mr Linden that Igen is not strictly applicable since it has an EU context. However, the reasoning which has informed the EU analysis is that unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer's decisions. In my judgment, that principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing.” “…section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower.”

[72]The burden of proof is different in a detrimental treatment claim. The Claimant needs to prove, on a balance of probabilities (ie that it was more likely than not) that: 72.1. there was a protected disclosure; 72.2. there was a detriment; and 72.3. the Respondent subjected the Claimant to that detriment. If the Claimant can prove these three matters, the burden of proof will shift to the Respondent to prove that the Claimant was not subjected to the detriment on the ground that he had made the protected disclosure.

[73]In International Petroleum Ltd and ors v Osipov and ors EAT 0058/17, the Employment Appeal Tribunal explained the Tribunal can draw inferences as to the real reason for the employer’s action: 73.1. the burden of proof lies on a claimant to show a reason for detrimental treatment, to which he is subjected is a protected disclosure that he or she made. 73.2. by virtue of S.48(2) Employment Rights Act 1996, the employer must be prepared to show why the detrimental treatment was done. If it does not do so, inferences may be drawn against the employer. 73.3. however, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts it has found. Conclusions Constructive dismissal Issues 1.1: on 12th October 2022, did the Respondent attempt to take away the Claimant’s contractual entitlement to have an additional tea break?

Conclusions

[74]The tribunal asked itself whether the Claimant’s additional tea break was a contractual entitlement. Having considered the fact that this additional break was verbally agreed by Mr Clarke at a time when Mr Clarke was making a substantial change to the Claimant’s terms and conditions of employment by changing his shift pattern (which deprived the Claimant of shift premium pay that Mr Benjafield was able to enjoy), we accepted this oral agreement did amount to a consensual variation of the Claimant’s terms of employment. An agreement to vary the terms of employment does not have to be in writing to have legal effect. The Claimant has proved there was a consensual variation to his contract by this oral agreement. We accept that since June 2019 the Claimant has had a contractual entitlement to take an additional 15-minute tea break and he has exercised this right every day until his employment ceased.

[75]On 12th October 2022, when they made it clear to the Claimant that he could not continue to work the hours he was working and take the additional 15-minute tea break, Ms Bishop and Ms Pullen were attempting to take away a tea break that the Claimant was contractually entitled to.

[76]We asked whether, viewed objectively, there was reasonable and proper cause for this conduct. Mr Soanes, on behalf of the Respondent, submits Ms Bishop was concerned that it was unfair that every other employee was working 7.5 hours per day and the Claimant was working 15 minutes less than this and she was concerned other staff on the same shift would ask to reduce their hours by 15 minutes. We accept Ms Bishop’s evidence that she was trying to ensure there was consistency between staff. The Tribunal accept that viewed objectively, the Respondent did have reasonable and proper cause for attempting to take away the tea break. Issues 1.3: the trumped up charges

[77]Earlier in the judgment we accepted the Respondent had alleged trumped up charges in the invitation to disciplinary hearing. We asked whether, viewed objectively, there was reasonable and proper cause for this conduct. The Respondent has not attempted to suggest a reasonable and proper cause for this. We find there was no reasonable and proper cause for alleging trumped up charges.

[78]Viewed objectively, was this conduct calculated or likely to destroy or seriously damage trust and confidence? Here we accepted Ms Bishop was completely unfamiliar with the ACAS Code and this was her first disciplinary process. We accepted this was not calculated conduct, however, we found that, viewed objectively, alleging trumped up charges in a disciplinary process was likely to seriously damage trust and confidence. Issues 1.2: the Respondent’s failure to conduct a fair and open disciplinary process and failure to follow the ACAS code on 21st October 2022 Issues 1.5: the Respondent’s failure to conduct a fair and open appeal process, or follow the ACAS code on 14th November 2022

[79]We have accepted there were significant failures to comply with the ACAS code of conduct and the Respondent’s procedures, in particular the decision to not share witness statements (Mr Chrysostomou and Mr Kelly’s statements) with the Claimant prior to his disciplinary hearing and to proceed with the appeal hearing knowing the Claimant still hadn’t been provided with these statements. The Claimant had been very clear that he needed these documents to be able to prepare for his appeal hearing and to call witnesses. We note that in these proceedings, the Claimant has contested Mr Chrysostomou’s account as set out in his statements; he was completely denied the opportunity to challenge these accounts during the disciplinary hearing and appeal hearing.

[80]We asked whether, viewed objectively, there was reasonable and proper cause for this failure to conduct a fair and open disciplinary process and fair and open appeal. Mr Soanes, on behalf of the Respondent, admits there were errors but submits the Respondent was in a state of change having been taken over by a larger company and there was confusion within the HR team. Viewed objectively, we did not accept that this amounted to reasonable and proper cause for such significant departures from ACAS Code and the Respondent’s own disciplinary procedures.

[81]We accepted this was not calculated conduct, however, we found that, viewed objectively, failing to provide a fair and open disciplinary process and appeal process was likely to seriously damage trust and confidence, particularly as the Claimant had already indicated he needed these documents to be able to call witnesses to defend the allegations. Issues 1.4: the final written warning issued to the Claimant on 3rd November

[82]We discussed whether, viewed objectively, there was reasonable and proper cause for the final written warning to be issued. Mr Soanes, on behalf of the Respondent, submitted Ms Bishop was concerned the Claimant had damaged company property by using undue force. However, we note the Claimant has always provided a full explanation for this damage and Ms Bishop herself accepted it was not intentional damage. We accepted that viewed objectively this was not enough to amount to reasonable and proper cause to issue a final written warning. If it had been a written warning our decision might have been different, but a final written warning carries serious consequences for an employee and concerns about accidental damage to company property did not amount to reasonable and proper cause for imposing this.

[83]We noted Ms Bishop’s inexperience and accepted this was not calculated conduct. However, we found that, viewed objectively, being unfairly issued with a final written warning, was likely to seriously damage trust and confidence, particularly as the employer was aware the Claimant was experiencing ongoing hostility from Mr Chrysostomou.

[84]The Tribunal concludes the Respondent breached the implied term of trust and confidence, which is a repudiatory breach of the employment contract.

[85]The Tribunal accept the Claimant resigned in response to this breach of the implied term of trust and confidence – the Claimant’s letter of resignation refers to “As management and the HR department went so far as issuing a final written warning, I feel that I am not welcome, appreciated or safe”. The Respondent submits the Claimant had already decided to resign prior to the appeal hearing as he had drafted his resignation statement in advance. However, we accept the Claimant’s oral evidence that he decided to see how the appeal hearing went. He was persuaded to attend the appeal meeting by Mr Kelly’s assurances during telephone calls that he would be “honest, fair and open” in handling the appeal, but by the end of the appeal meeting, the Claimant concluded “nothing is going to change” and decided to hand in his document and resign.

[86]We accept that the Claimant resigned in response to the Respondent’s repudiatory breach of contract and he had not affirmed the contract before resigning. The Respondent has not been able to demonstrate any fair reason for this dismissal. The Claimant succeeds with his constructive dismissal claim. Protected disclosure – detrimental treatment

[87]We have already concluded that on 12 October 2022 the Respondent did attempt to take away the Claimant’s contractual entitlement to have an additional tea break (Issue 7.1).

[88]We have already concluded that on 21st October 2022 the Respondent failed to conduct a fair and open disciplinary process or follow the ACAS code (Issue 7.2).

[89]We have already concluded the Respondent did allege trumped up charges against the Claimant (Issue 7.3).

[90]It is accepted the Respondent issued a final written warning to the Claimant on 3rd November 2022 (Issue 7.4).

[91]We have already concluded the Respondent did fail to conduct a fair and open appeal process, or follow the ACAS code on 14th November 2022 (Issue 7.5)

[92]We are satisfied that, in their own right, each of these 5 acts amounted to subjecting the Claimant to detriment. In relation to each of these 5 acts, a reasonable worker would take the view that the action of the employer was, in all the circumstances, to his detriment.

[93]We next considered whether the Claimant was subjected to a detriment on the ground that he had made the public disclosure.

[94]In relation to the attempt to take away the Claimant’s contractual entitlement to have an additional tea break, the Respondent has persuaded us that Ms Bishop was genuinely trying to ensure there was consistency between staff and was concerned other staff would want to take an additional 15 minute tea break. We found the protected disclosure did not materially influence her decision-making.

[95]In relation to the trumped-up charges, the failings in the disciplinary procedure and imposing the final written warning, the Respondent has persuaded us that Ms Bishop was genuinely inexperienced and unfamiliar with disciplinary processes and this was the reason for the errors. It was not calculated or deliberate conduct on her part. Again, we found the protected disclosure did not materially influence her decision-making.

[96]In relation to the failings in the appeal process, the Respondent has persuaded us that these were completely unintentional errors, in part caused by the Respondent being taken over by a larger company and miscommunications between HR officers. This was not calculated or deliberate conduct. Again, we found the protected disclosure did not materially influence officers’ decisionmaking.

[97]We were mindful of the shifting burden of proof in the detrimental treatment claim. Notwithstanding the shifting burden of proof, the Respondent has established the protected disclosure played no part in their officers’ decision making and was not a material factor in the acts of detrimental treatment – it had no impact whatsoever of the officers’ decision making. We note the Respondent had recognised the Claimant’s protected disclosure to be a genuine health and safety concern and had acted to address the Claimant’s concerns about colleagues’ use of the Goods In area.

[98]The Claimant’s complaint of detrimental treatment because of protected disclosures is not well founded and is unsuccessful. Protected disclosure – constructive dismissal

[99]Was the Claimant constructively dismissed because he made a protected disclosure? Having found the protected disclosure did not materially influence the Respondent’s officers’ decision-making, we cannot say the protected disclosure was “the principal reason” that the employer committed the fundamental breach of the Claimant’s contract of employment that precipitated the Claimant’s resignation.

[100]The Claimant’s complaint of constructive dismissal because of protected disclosures is not well founded and is unsuccessful.