Employment Judge LaidlerIn person for claimantMr C Bailey-Gibbs (instructed by Solicitor) for respondentDate 29 May 2019
JUDGMENT
[1]There was no breach of the express or implied terms of the contract of employment such as to entitle the claimant to resign, yet claims he was unlawfully dismissed. The claim of constructive dismissal must therefore fail and is dismissed. JUDGMENT[2]JUDGMENT having been sent to the parties on 12 April 2019 and written reasons request in accordance with Rule 62(3) of the Employment Tribunal Rules of Procedure 2013, the following reasons are provided.
REASONS
[1]The ET1 in this matter was received on 28 March 2018, the claimant having resigned from his employment on 26 March 2018. The claims were clarified at a preliminary hearing before me on 26 July 2018. “Harassment (14) In his documentation for this hearing the claimant sought to rely upon section 26 of the Equality Act 2010, sub paragraph (1) (b) (ii). Detailed consideration was given to those provisions and it was quite clear and the claimant accepted he does not reply upon any of the protected characteristics which appear in the Equality Act. (15) Consideration was given to whether or not the claimant is actually arguing that he suffered a detriment such that a claim could be brought under the Employment Rights Act 1996, Part V but again it was not clear what claim this could be. The various matters said to amount to detriments were as follows:15.1 Request to attend a disciplinary hearing on 14 March 2018 to discuss the claimant failing to attend work on the 7 March 2018 despite his holiday request for that day being refused. The claimant asserts that he booked the day off approximately two and half weeks prior to the date he required. It was rejected, and he submitted it again. The day off was required to attend a football match the previous evening and the respondent knew he was a season ticket holder. He therefore said he was not coming in to work. When he attended the disciplinary hearing, nothing took place and no disciplinary sanction was imposed. The claimant asserts that the sending him a disciplinary invite letter was the detriment that he suffered.15.2 The claimant used to always do a journey to Avonmouth for the last three and a half years, but since February/March 2018, that had been changed. He refused to do a job that was to take a load from Newmarket to Huntingdon and then from Huntingdon to Barton. This was because on the day before he had already carried out a job to Barton which was 11 ¼ hours. The claimant was invited to a disciplinary hearing on 4 April 2018. He resigned on 26 March and therefore did not attend. Again, it is being called to a disciplinary hearing that he asserts was the detriment.15.3 In 2013, the claimant was “harassed” by his manager, Rupert Bowen, to work 17 ½ hours. The claimant reported him to VOSA. Eight months later the claimant ended up doing 20 hours one day and again reported Mr Bowen to VOSA. The claimant was then summoned to a disciplinary on 9 December 2013. The first meeting did not go ahead because the claimant had contacted VOSA and the second meeting the claimant was called in but states nothing really happened. (16) The tribunal had to conclude that these claims really went to the issue of constructive dismissal as the claimant said that they were part of his reason for resigning. It was not seen that they could amount to any other cause of action. Constructive Dismissal (17) The above detriments, together with the issue of the above monetary amounts led to the claimant to resign.”[2]At a hearing before me on 21 November 2018, the money claim was struck out on the grounds the tribunal had no jurisdiction that there were no reasonable prospects or were out of time.[3]In a separate case management summary sent out after that hearing paragraph 4 recorded that the issue of constructive dismissal would be determined at this full merits’ hearing, notwithstanding the tribunal’s decision on the monetary claims. Orders were made for witness statements to be exchanged. The claimant produced a handwritten statement for this hearing today which is dated 23 November 2018 and was only one and a half pages. Andrew Scarlet, Senior Operations Manager of the respondent, who has worked there for approximately 39 years, gave evidence to this tribunal for the respondent and the tribunal also heard from the claimant. Whilst the tribunal had a bundle of documents of 437 pages, it was not necessary to refer to many pages of that bundle.
The Facts
[4]The claimant was employed by the respondent as an HGV driver from 14 June 2010 to 26 March 2018 when he resigned. The tribunal intends to only deal with those issues identified at the preliminary hearing and particularly so in view of the limited detail contained in the claimant’s witness statement.[5]The first matter chronologically is the allegation that in 2013, the claimant was “harassed” by his manager, Rupert Bowen to work 17 ½ hours, that the claimant reported him to VOSA and eight months later the claimant ended up doing 20 hours one day and again reported Mr Bowen to VOSA. The claimant was summoned to a disciplinary hearing on 9 December 2013 to discuss his refusal to do a job on 24 October 2013. The first meeting did not go ahead, the claimant alleged because he had contacted VOSA and the second meeting he was called to, nothing really happened.[6]Throughout this matter the claimant has confirmed that it is the being called to a disciplinary hearing that amounted to the fundamental breach he relied upon. In his witness statement, the claimant said he believed the disciplinary did not happen ‘due to’ him notifying VOSA. In evidence he accepted this was assumption on his part. He did not tell the respondent he was telephoning VOSA. He was told by the office that Mr Bowen had been called to a meeting in Ely but still believes he absented himself because the claimant had called VOSA. He accepted, and the tribunal finds that was an assumption on his part which he has no evidence to support. The tribunal accepts Mr Scarlet’s evidence that the company are not contacted immediately by VOSA to advise of a complaint. If they consider there is something to investigate they are more likely to turn up unannounced.[7]The invite to the first meeting on 19 November was sent to the claimant on 11 November (page 56) and states it was to discuss the claimant’s refusal to do a job on 24 October 2013.[8]The reconvened meeting was notified to the claimant by letter of 3 December 2013 (page 57) and the meeting was due to take place on 9 December. An outcome letter was sent to the claimant on 11 December and that was seen at page 58. It notes that the claimant was accompanied by a Mr P Dixon. It records that at the meeting they discussed that it was the claimant’s attitude over the refusal, rather than the refusal itself as he left site rather than discussing the situation in a calm manner that was the issue of concern. Following a break, the claimant had been told no action would be taken on that occasion, however, a note would be placed on his file and further refusals may result in disciplinary action being taken against him.[9]At page 59 of the bundle, the respondent drew the tribunal’s attention to a tachograph readout showing that the claimant had worked 17.55 hours. He was called to a disciplinary hearing to explain that. The invite was seen at page 63, and the meeting took place on 14 January 2016 and page 65 were the minutes. The claimant attended that meeting without a representative or colleague. It was made clear it was to discuss why the claimant ran over time and in an outcome letter, seen on page 67, the claimant was given a written warning. The respondent was satisfied that the claimant had an opportunity to stop so that he did not go over the required hours and that they had understood he tried to mitigate the situation of a traffic accident and road closure. At no point in the minutes does the claimant say that it was the respondent who was also requiring him to work over his legal hours.[10]The next matter the claimant relies upon is a request to attend a disciplinary hearing on 14 March 2018 to discuss his failure to attend work on 7 March despite his holiday request for that day being refused. Again, it is the invite to the disciplinary which is the matter that the claimant relies upon as a breach of contract. The tribunal saw in the bundle at page 78 an e-mail from Mr Scarlet to various managers dated 19 February 2018, in which he stated that due to the Mothers’ Day volume of work there was to be no more driver holiday between 7 and 10 March and also no more in the week leading up to Easter. The claimant submitted a request for 7 March on 20 February and it was refused in view of this instruction. He resubmitted it and it was again rejected on 27 March.[11]The tribunal saw an e-mail from a Philip Wilding to various managers, stating that the claimant had been told he was expected to be in but that the claimant was refusing because he was going to a football match on the Tuesday night and would not be back until midnight and would not work on the Wednesday. He was therefore called to a disciplinary meeting by a letter dated 7 March but it appears he did not attend and no further action was taken. The claimant accepted in cross examination that the respondent had called him to a disciplinary hearing as he did not turn up for work. The tribunal is satisfied that was a reasonable management response and is what the respondent would have done in relation to any other employee who did not attend work.[12]The next matter the claimant relies upon is that he used to always do a journey to Avonmouth for the last three and a half years but since February/March 2018, that had been changed. He refused to do a job that was to take a load from Newmarket to Huntingdon and then from Huntingdon to Barton. He was invited to a disciplinary hearing on 4 April 2018 in connection with that matter. The tribunal saw an e-mail at page 84 from Dave Smart to others at the respondent, stating the claimant had refused to do the job and walked out and Mr Scarlet requested HR to arrange a meeting with the claimant. He was invited to a meeting on 4 April by letter of 21 March and again accepted in cross examination that the respondent was entitled to call an employee who refused to do a job to a disciplinary hearing.[13]When the decision was given last year in relation to the monetary claims, the claimant made it clear that he still relied upon those as a reason for his resignation. The claimant’s evidence to this tribunal was that although at that earlier hearing his monetary claims had been dismissed and no breach of contract had been established, he still believed they could be relied upon for the constructive dismissal claim. The claimant acknowledged that he had been of the view since 2012, if not earlier, that he had been wrongly paid and that he should have resigned in 2013, but he was going through a divorce and had another court case and it was too much to take on. He still had waited until March 2018 to resign.
The relevant law
[14]Section 95(1) (c) of the Employment Rights Act 1996 provides that dismissal includes where: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”[15]The test that needs to be applied is still that set out in Western Excavating v Sharp [1978] ICR 221, in which it was stated: ‘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 employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.’[16]Although not relied upon by the claimant at the preliminary hearing, it is of course the case that the employer will not, without reasonable and proper cause conduct itself in a manner calculated and likely to destroy and seriously damage the relationship of confidence and trust between the employer and employee (Malik v Bank of Credit and Commerce International SA 1997 IROR462).[17]The test in all respects is an objective one and it is not sufficient for the employer to be guilty of unreasonable conduct. Tribunals conclusions[18]In relation to each of the invites to a disciplinary hearing, the claimant relies upon the employer was entitled to call an employee who has taken a leave when it has been refused, has worked over the legal hours and refused to do a job and walk out to a disciplinary hearing. The claimant even conceded that in evidence. There was no breach of contract. The respondent acted according to the contract.[19]Insofar as the claimant relies upon matters in 2013, he must be taken to have affirmed any breach if there was one, which there was not. An employee cannot wait five years before resigning in response to something.[20]In relation to the monetary claims that the claimant has pursued, he states in his own evidence that he knew from 2012 or even 2010 that he did not consider he was being paid correctly. As stated in Western Excavating an employee must resign in response to the breach. He cannot wait six or eight years before resigning, even if there were other matters going on in his life which meant that he did not feel able to resign, he is taken as having affirmed the contract. The claimant also said he would not have resigned if his original claim had not been dismissed as out of time. He was waiting to see what would happen with that claim.[21]The fact is, however, that there was no breach of contract in relation to wages, as has been found by this tribunal. The claim must fail on that basis also. There has been no fundamental breach of the express or implied terms of the contract, such as to entitle the claimant to resign, yet claim in law that he was dismissed. His claim of constructive dismissal must therefore fail and is dismissed.