Case No 4101448/2025Venue DundeeHearing 9 & 10 February 2026
Between
Mr Gordon BruceClaimantHSS Proservice LtdRespondent
Before
Employment Judge R MackayMr Russell, Solicitor for claimantMr Jackson (instructed by Counsel) for respondentDate 2 April 2026
JUDGMENT
The judgment of the employment tribunal is that the claim of constructive unfair dismissal succeeds, and the respondent shall pay to the claimant a basic award of £7,025 and a compensatory award of £22,260.83. Both payments shall be made without deduction of income tax or national insurance contributions.
REASONS
[1]This is a claim for constructive unfair dismissal. The claimant submitted his ET1 without the benefit of legal representation. The sequence of events which the claimant alleges led to a breach of trust and confidence justifying his resignation were set out in Further and Better Particulars prepared by his solicitor and in an Agreed List of Issues.[2]In essence, the components of the claim are as follows:(1) On or around 17 February 2025, changes were made to the claimant’s role including the removal of two significant elements.(2) Those changes were made without a fair process or meaningful consultation.(3) The clamant was told that he would require to manage a portfolio of customers (which he had previously not done).(4) This change was also implemented without a fair process or meaningful consultation, without consideration of the impact on other sales staff.(5) The claimant was threatened with disciplinary action in March 2025 if he did not agree to take on a portfolio of clients.(6) In May 2025 the claimant receiving a threat of dismissal, when absent after a relatively short period of time.(7) On 28 May 2025, the claimant was again given an ultimatum to accept the changes to his role under threat of being disciplined or dismissed.[3]The claimant gave evidence on his own account. For the respondent, evidence was heard from Mr Stephen Elder, latterly the claimant’s line manager. Both were generally credible and reliable. Whilst at times Mr Elder had a tendency to stick to a rehearsed formulation of words in response to questions, and a tendency to attribute decision-making to “the business” rather than accepting responsibility himself, he made quite candid admissions in cross-examination. As a consequence, few conflicts in evidence emerged and the factual background was broadly agreed.[4]Parties agreed a joint bundle of documents, not all of which were referred to, as well as the framework of, and figures in, the claimant’s schedule of loss. Findings in Fact[5]The respondent is a hire company providing services to the construction industry. It operates across the UK and Ireland.[6]The claimant was employed from 18 March 2019 as a regional sales manager. Initially, he covered the north of Scotland, assuming responsibility for the whole of Scotland shortly thereafter. In this role, he was responsible for the management of a number of salespeople. In 2023, he also assumed responsibility for the Scottish trading desk – a function which dealt with pricing issues.[7]The claimant’s contract employment contains the clause: “The [respondent] may appoint you to other positions commensurate with your level of skill from time to time either on a temporary or permanent basis. You will carry out such duties as may be required by the [respondent] from time to time.” He was never provided with a job description.[8]The composition of the claimant’s direct reports varied over the years. Immediately prior to the appointment with Mr Elder, the claimant had 13 direct reports made-up of area sales managers, internal sales managers and one support manager. The area sales managers were outward facing with a portfolio of clients. The internal sales managers dealt with online and telephone sales. One employee dealt with the trading desk.[9]The claimant did not at any time have a portfolio of his own clients to manage. There was nothing in the discussions about his appointment, the offer letter, or his contract of employment to suggest that he should. Until the appointment of Mr Elder, no one suggested to him that he might be expected to manage clients directly. In this respect, the claimant’s position differed from other regional sales managers in the UK and Ireland, all of whom managed a portfolio of their own clients in addition to line managing others.[10]In February 2025, Mr Elder took over responsibility as sales director for Scotland. He had previously been sales director for Ireland only. In doing so, he became the claimant’s line manager.[11]Mr Elder met with the claimant on 17 February 2025. During the course of the meeting, Mr Elder informed the claimant that certain changes were being made to his role. First, his responsibility for the trading desk was removed. Secondly, his responsibility for the internal sales team was removed, with the function transferred elsewhere leading to the redundancy of the claimant’s internal sales team. Thirdly, the claimant was told that he would be required to take on and manage a portfolio of his own clients.[12]These decisions were made without advance warning or consultation with the claimant, and the package of changes was presented to him as a fait accompli. The two elements being removed accounted for approximately 50% of the claimant’s time.[13]On or around 21 February the claimant spoke to Mr Elder. He told him that he felt as though he was being demoted. The claimant raised the possibility that if he were to take on a portfolio, it would make sense for him to take on clients from a colleague who was leaving. Mr Elder refused this on the basis that they were “key accounts” which should be dealt with elsewhere. The claimant was concerned about the impact on his sales team of having customers taken off them. The claimant subsequently spoke to a member of the respondent’s HR team who advised that he should raise a complaint.[14]My email of 26 February, the claimant emailed Mr Elder attaching a document dated 21 February entitled “Concerns”. The document set out a number of concerns the claimant said he had, amongst other things, about changes to his role. He referred to the loss of responsibility for the trading desk and the internal sales team and asked questions about the requirement to take on a portfolio of clients. He concluded his email with he following: “Stephen, I have a few valid points it seems there is pattern emerging? As to what we all have our theories. I haven't mentioned your [area sales manager] joint visits last week with Pawel. He knew before I did doesn't look good when you are implementing a plan that effects my direct line of reports without a discussion or heads up. From my perspective it looks like my role has or is being diluted. I am still curious to find out why no-one has asked me anything about actual customers or what was the plan we were working to previously to the merging?”[15]Mr Elder responded to the email some time thereafter with comments on the points raised. In relation to the trading desk he said he was sorry if the claimant felt overruled, but that as he was new to the team, he adjusted the lines of responsibility to reflect what they should always have been. In relation to internal sales, he replied that it was a difficult task but one that HR insisted be undertaken.[16]So far as the claimant taking on a portfolio of clients was concerned, Mr Elder replied to the effect that doing so would bring the claimant into line with the rest of the regional sales managers. He went on to say that it was not “outside of what your role should entail”. In response to the claimant’s closing paragraphs, he referred to the need to get to know staff and what he saw as a two-way street. He also referred to what he described as dramatic changes in the business and “driving forward as a leaner team”. He said that the claimant played a “key role in making sure [area sales managers] hit target and grow the portfolios”.[17]A meeting took place between the claimant and Mr Elder on 7 March 2025. During the course of that Mr Elder repeated the requirement for the claimant to take on a portfolio of clients.[18]On 7 March 2025 Mr Elder emailed the claimant. He referred to the earlier conversation and stated: “…as per our latest conversation where you have had my clear instructions to your role and the need for you as regional sales manager to have a small portfolio of 30-40 customers while running the [area sales manager] team which you have refused now on more than one occasion. To reiterate, this is not outside of the responsibilities of your role and is reflective of all [regional sales managers] across the wider business.”[19]He referred to the claimant’s refusal to comply and his view that he should not have a portfolio. He went on to state: “Unfortunately, this is not negotiable and, to be clear, is not a role change as it is, and continues to be, the very role you are employed to do. […] I need you to pull together this portfolio by Wednesday of next week. If you refuse to complete this task, it may be considered a conduct issue and further formal action may be taken”.[20]The claimant was concerned to receive the letter and felt that sending it on a Friday afternoon at 16.23 was intended to cause additional worry over the weekend. He responded later that day to as HR representative. In his email to them he commented on Mr Elder’s email. He referred to the fact that in his six years in post he had not held a portfolio and if other regional sales managers had one, that was their choice. He described this as changing his role. He referred to the earlier discussion about taking on clients of a particular individual who was leaving and asked further questions about that. He stated that he was not refusing a portfolio, he was only asking why, referring again to that being a change to his role which he listed alongside the other changes made.[21]On the following Monday, 10 March 2025, the claimant submitted a fit note. The situation at work was causing him stress. The absence was noted on the fit note as being due to “anxiety states”.[22]The respondent has an absence management policy. It includes, amongst other things, a statement to the effect that employees experiencing health related issues will be referred for an occupational health assessment. It has a section dealing with long term absence. In terms of that, an employee who has been absent for four weeks or more is considered to be on long term absence. At that stage, the policy provides for the arranging of an informal absence meeting with a view to supporting the employee to return to work. That section goes on to provide that in unfortunate circumstances whereby informal measures to help facilitate a return to work have been unsuccessful, the employee may be managed in accordance with the respondent’s medical capability policy. That policy includes a warning of the possibility of dismissal.[23]By email of 14 March, Mr Elder contacted the claimant, responding to the claimant’s email of 7 March to HR. He wrote: “Again, I'm disappointed you feel this way. I want to assure you that there have undoubtably being some tough decisions that I have had to make recent weeks and months, my priority has always been to ensure all changes are communicated effectively and clearly, with the input of colleagues directly considered. I'm sorry if you feel this hasn't been the case. However, it is part of my role to ensure that how we structure the sales team in Scotland, is aligned both to the wider business-strategy, and our customers’ requirements. You remain a valued member of the sales team, and I remain hopeful that we can resolve some of these points via ongoing discussion and communication. […] I will be in touch closer to return to arrange a further discussion whereby I hope we can collectively agree a resolution and way forward”.[24]The claimant was invited to attend a meeting to take place on 20 May by email of 14 May 2025. The purpose of the meeting was said to be to discuss:• Your absence from work due to ill health• The likelihood of you returning to your job/work in the near future• Whether there are any reasonable adjustments that can be made to your job or in the workplace that would facilitate a return to work, particularly in regards to your concerns on Stephen Elder[25]In advance of the meeting, an HR representative contacted the claimant by telephone on 16 May 2025. Following the call, the claimant emailed the HR representative to say that the call had ended quickly due to: “…the pressure of threat of Termination on grounds of Ill Health”. He went on to say that he was due back to work on 6 June.[26]A response was sent to the claimant by email of 16 May. Reference was made to an earlier potential return to work date. In response to the claimant’s comments about the reference to termination of employment, it was explained that this was a possible outcome following the absence policies and that it was not intended to threaten or bully him. The email encouraged the claimant to raise a grievance about the issues he had raised about Mr Elder. The claimant did not do so.[27]The absence meeting took place on 20 May as scheduled. During the course of that the claimant referred to feeling better following a change of medication and gave a return to work date of 6 June 2025. Reference was made to the claimant’s unresolved concerns and it was agreed that he would sit down with Mr Elder to try and get things sorted. A follow up letter from Mr Elder suggested meeting for coffee to discuss the claimant’s concerns over his role.[28]A meeting took place between the two off-site on 28 May 2025. A discussion took place over the claimant’s role and whether he should have a portfolio of clients. The claimant repeated his position that it was never part of his role and amounted to a change. Mr Elder repeated his position that it was a part of the role of every regional sales manager in the respondent. A dispute in the evidence arose as to whether he said that a failure to comply might result in disciplinary action/dismissal. The Tribunal was satisfied that he did or at least that it was implicit given that his position had not changed and the possibility of disciplinary action in the event of a refusal was a clear aspect of his position.[29]The claimant resigned by email later that day. His email included the following: “Thanks for meeting me today, my intention was to return to work as discussed however you haven’t changed your stance nor accepted that my role has changed and I believe that has been planned without discussion/negotiation.”[30]He gave 12 weeks notice and concluded by thanking Mr Elder for his “patience and help throughout this difficult period”.[31]Mr Elder replied by email later on 29 May. He included the following: “I understand that you feel the role has changed significantly; however, from both mine and the company’s perspective, the duties currently aligned to your position remain appropriate and consistent with the expectations of the role – as we have discussed in great lengths in recent weeks”. He was asked to take time to reconsider his decision and if he wished to do so to let Mr Elder know by the end of the week.[32]The claimant did not do so. A letter dated 2 June 2025 confirmed acceptance of the resignation. He was placed on garden leave for the full notice period. The letter stipulated that he was not permitted to work for any third party during the garden leave period. The employment ended on 27 August 2025.[33]Following the termination of his employment, the claimant contacted two or three recruitment consultants he had previously worked with. He applied for one role on 29 August and another role around the same time. He applied for one role in October 2025. Thereafter, he did not make any applications until January 2026 when applied for 8 positions. As at the date of the hearing he had not secured alternative employment but was awaiting an outcome in respect of a number of the posts. Relevant Law and Submissions[34]Employees with more than two years’ continuous employment have the right not to be unfairly dismissed under s94 of the Employment Rights Act 1996 (“ERA”). 'Dismissal' is defined to include what is generally referred to as constructive dismissal. Constructive dismissal occurs where the employee terminates the contract under which he/she is employed (with or without notice) in circumstances in which he/she is entitled to terminate it by reason of the employer's conduct (s95(1)(c) ERA).[35]The test for whether an employee is entitled to terminate his contract of employment is a contractual one. The Tribunal requires to determine whether the employer has acted in a way amounting to a repudiatory breach of the contract or shown an intention not to be bound by an essential term of the contract (Western Excavating (ECC) Ltd v Sharp [1978] ICR 221). For this purpose, the essential terms of any contract of employment include the implied term that the employer will not, without reasonable and proper cause, act in such a way as is calculated or likely to destroy or seriously damage the mutual trust and confidence between the parties (Malik v Bank of Credit and Commerce international Ltd [1998] AC 20).[36]Conduct calculated or likely to destroy mutual trust and confidence may be a single act. Alternatively, there may be a series of acts or omissions culminating in a ‘last straw’ (Lewis v Motorworld Garages Ltd [1986] ICR 157).[37]As to what can constitute the last straw, the Court of Appeal in Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 confirmed that the act or omission relied on need not be unreasonable or blameworthy, but it must in some way contribute to the breach of the implied obligation of trust and confidence. Necessarily, for there to be a last straw, there must have been earlier acts or omissions of sufficient significance that the addition of a last straw takes the employer’s overall conduct across the threshold. An entirely innocuous act on the part of the employer cannot however be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of their trust and confidence in the employer.[38]In order for there to be a constructive dismissal, not only must there be a breach by the employer of an essential term such as the trust and confidence obligation; it is also necessary that the employee resigns in response to the employer's conduct (although that need not be the sole reason – see Nottinghamshire County Council v Meikle [2004] IRLR 703). The right to treat the contract as repudiated must also not have been lost by the employee affirming the contract prior to resigning.[39]The Court of Appeal in Kaur v Leeds Teaching Hospital NHS Trust [2018] EWCA Civ 978 set out guidance on the questions it will normally be sufficient for Tribunals to ask in order to decide whether an employee has been constructively dismissed, namely:a. 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?b. Has he or she affirmed the contract since that act?c. If not, was that act (or omission) by itself a repudiatory breach of contract?d. If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term?e. Did the employee resign in response (or partly in response) to that breach?[40]The EAT has held that changing an employee's contractual duties, whether by removing some duties or requiring the employee to perform new ones, is likely to constitute a repudiatory breach (Hilton v Shiner Ltd [2001] IRLR 727). It has also held that a flexibility clause does not give an employer carte blanche to impose material changes without agreement (Land Securities Trillium Ltd v Thornley [2005] IRLR 765 ).[41]If an employee establishes that they have been constructively dismissed, the Tribunal must determine whether the dismissal was fair or unfair, applying the provisions of s98 ERA.[42]Mr Russell and Mr Jackson produced skeleton submissions to which they spoke orally at the conclusion of the hearing. Aspects of the submissions as they influence the ultimate decision are addressed in the Decision section which follows.[43]The Tribunal first considered the last act relied upon by the claimant. This centred on the conversation between him and Mr Elder 28 May 2025. It is clear that there was once again an impasse between the two about the nature of the claimant’s role and whether it was appropriate for him to have a portfolio of clients. The claimant was adamant that it had never been part of his role. Mr Elder was equally adamant that it was, or ought to be, part of the role of all regional sales managers. As such, he maintained his position that the claimant was instructed to take on a portfolio, and it was at least implicit that were he to refuse to do so, he would be subjected to disciplinary action.[44]Mr Jackson submitted for the respondent that this was an entirely innocuous act such that it could not constitute the final straw of a constructive dismissal claim. The tribunal did not accept that submission. There had been an ongoing dispute between the claimant and Mr Elder about the issue which at least in part led to the claimant becoming absent from work. It was recognised during the absence processes that resolving the issue was required in order to repair the working relationship on the claimant’s return. Despite the references to resolving the issue with ongoing discussions and agreement, it is clear that Mr Elder simply maintained his earlier stance. That is clear from his own email of 29 May referred to at paragraph 31 above. He appeared to close his mind to the possibility the claimant’s role might differ from those of other regional sales managers and did not engage with the concerns previously raised by the claimant or consider the potential impact of the issue on the claimant’s health and subsequent absence. The claimant legitimately took from that was said that the position was not going to change.[45]The tribunal then considered whether the claimant affirmed the contract following that act. There is no suggestion that he did. He resigned later that day, and it is clear from his letter of resignation that the content of the conversation was the ultimate reason for his resignation.[46]The next step is to consider whether that act itself amounted to a repudiatory breach of contract. The tribunal was not satisfied that it did. Whilst Mr Elder’s actions can be characterised as unreasonable for the reasons outlined above, they do not in isolation represent a breach of contract so serious as to go to the root of the relationship.[47]The tribunal then considered whether the other acts relied upon by the claimant, taken with the final act, where sufficient to amount to a repudiatory breach of contract. It considered each of the acts relied upon by the claimant in turn.[48]The first two elements of the claim are linked. The first being the removal on 17 February 2025 of two aspects of the claimant’s role and, secondly, the absence of any fair process or meaningful consultation about the changes. It is not in dispute that two significant elements of the claimant’s role were taken away from him. It is conceivable that there might have been sound business reasons for removing the internal sales team which was being reorganised as part of a wider restructuring, but this was not discussed with the claimant. Any business reason for removing responsibility for the trading desk was unclear other than that it was not, in Mr Elder’s mind part of the regional sales manager role.[49]In any event, the manner in which the decisions were taken was deeply flawed and undermining of the claimant. He was not informed in advance, he was not consulted, and little account seems to have been taken of the impact on the claimant’s role given that the two areas removed accounted for approximately 50% of his time. The claimant's position that his role was diluted is unquestionably correct.[50]The third and fourth components of the claim are, again, linked, being the requirement to assume responsibility for a portfolio of clients and the issuing of that instruction without fair process or consultation. Mr Elder was fixed in his view that asking the claimant to take on the portfolio was not a change to his role. Other regional sales managers worked that way and he closed his mind to the possibility that the claimant’s role might have been different. As a matter of fact, the claimant’s role was different. He had never been expected to manage a portfolio of clients and being asked to do so felt to him like a demotion. It was reasonable for him to have that view, being asked as Mr Russell put it to move from being a manager of sales managers to operating in part at the same level as them.[51]Once again, the manner the respondent made the decision was deeply flawed. Mr Elder took the decision and communicated it without any advance warning or consultation. He did not take the time to ascertain precisely what the claimant's role was. He was fixed on having consistency across all regional sales managers and did not engage with the claimant’s properly held position that he had always operated in a different way.[52]For the respondent, Mr Jackson submitted that both the removal of the functions and the requirement to take on a portfolio of clients were permitted under the contract of employment under either or both of the provision set out at paragraph 7 above, and did not, therefore, amount to a breach. He rightly accepted, however, the constraints which apply to very broad flexibility clauses such as those found in the claimant’s contract (see Land Securities Trillium Ltd). Having regard to the significance of the changes, the dilution of the claimant’s role, and what might legitimately be seen as a demotion, the tribunal did not accept that the clause permitted such unilateral variations. This is reinforced by the manner of implementation which, for the reasons outlined above, was deeply flawed and likely, if not calculated, to damage the implied term of trust and confidence. It is notable, in any event (as Mr Russell submitted) that Mr Elder did not seek to rely on the terms of the contract to justify the variations. He did not see them as variations at all given his view of that the role should be.[53]The next act relied upon by the claimant is the threat of disciplinary action if he did not identify a portfolio of clients. In circumstances where there was a dispute as to whether this was part of his role, or might constitute a demotion, the respondent’s action was heavy-handed. It reinforced the refusal to engage in meaningful consultation and resulted in worry for the claimant. The fact that it was done after the claimant had raised concerns with HR (having been encouraged to do so) and before those concerns were meaningfully addressed made the respondent’s action all the more egregious.[54]The Tribunal reached a similar conclusion in considering the penultimate element of the claim – what the claimant saw as a threat of dismissal at an early stage of his absence from work. Mr Jackson submitted that this was no more than a normal, reasonable step to take with an employee absent from work due to sickness. The circumstances here, however, are more nuanced. The claimant was at an early stage of absence. Having regard to the two policies operated by the respondent, he had not yet moved on to the second. It is only under the second policy that reference is made to possible termination of employment. There was an expectation that he was going to return imminently. There was, therefore, no likely need to move to the second policy or to consider termination of employment at all. The claimant saw the reference as a threat, and it was legitimate that he did so having regard not only to the early stage of his absence but also the earlier threat of disciplinary action. The respondent's actions were, therefore, again, likely, if not calculated, to further damage the implied term of trust and confidence.[55]The tribunal considered each of these acts along with the final straw and concluded that, taken cumulatively, they amounted to a fundamental breach of contract. At the heart of the matter was the implementation of significant and detrimental changes to the claimant’s contract of employment without any meaningful consultation at all. That, taken with the other acts, themselves linked to the detrimental changes, was sufficient to destroy the implied term of trust and confidence.[56]Mr Jackson submitted that the respondent had “reasonable and proper cause” to act as it did. The Tribunal did not accept that submission. Looking at the course of conduct, it is clear that material changes were made to the claimant’s role - which represented both a dilution of his functions and a demotion – and that the process of implementation and subsequent treatment were deeply flawed and undermining of him.[57]The Tribunal was satisfied that the claimant resigned in response to the breach. His evidence was very clear. No other reason for his resignation was suggested.[58]Finally, the Tribunal considered whether the dismissal was fair or unfair. Mr Jackson submitted that the dismissal was fair for “some other substantial reason”, being a legitimate business reorganisation. Mr Russell pointed out that no such reason had been pled in the ET3. Even if it had been, the Tribunal would not have been satisfied that such a fair reason had been made out. There was either limited or no evidence of a genuine business need for the three changes made and that state of affairs, taken with the wholly unsatisfactory manner of implementation of the changes renders the dismissal unfair.
Remedy
[59]The Claimant is entitled to a basic award. Parties agreed this to be £7,025.00.[60]For the compensatory award, parties were agreed on the headline figures. The only real area of dispute was the period in respect of which the Tribunal should award loss. The claimant's solicitor sought an initial period of 14 weeks from the end of the notice period (although that did not take him up to the date of the hearing) with a further period of 38 weeks. Counsel for the respondent suggested that losses be limited to a period of three months only having regards to what he submitted were inadequate efforts by the claimant to secure alternative employment until around January this year.[61]Having regard to the findings at paragraph 33 above, the tribunal had some sympathy with the respondent’s position. Whilst the claimant was prevented from working during his notice period, he might have made efforts to plan for future work during that period. He made some limited efforts in the weeks and months following the termination of his employment, but it was not until January of this year that he has made a concerted effort to apply for a range of suitable roles. For those reasons, it was decided to award the claimant compensation for the initial 14 weeks sought and for a further 4 weeks only. It is clear from the number of roles applied for in January that the market is relatively strong and, given the claimant’s experience, the Tribunal assessed that he might have achieved alternative employment within an earlier timeframe had he made greater efforts. Whilst the conventional approach is to calculate loss to the date of the hearing, and apply reductions for failure to mitigate, the tribunal was content to adopt the approach in the agreed schedule of loss and use 14 weeks as the starting point. Having regard to the overall period in respect of which loses are awarded, the Tribunal would have applied a reduction for failure to mitigate to reach he same result.[62]Using the figures in the schedule of loss, 14 weeks’ loss amounts to £16,925.09. This is calculated based on agreed annualised figures for salary, pension contributions, car allowance and bonus. Loss for a further 4 weeks amounts to £4,835.74. £500 was agreed for loss of statutory rights. The total compensatory award is, accordingly, £22,260.83.[63]Both the basic award and the compensatory award can be paid without deduction of income tax or National Insurance contributions.