Mr S Muir v Tapi Carpets and Floors Ltd: 4103389/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103389/2025Venue EdinburghHearing 13 and 14 January 2026
Between
Mr S MuirClaimantTapi Carpets and Floors LtdRespondent
Before
Employment Judge A JonesMr G Cunningham (instructed by Counsel) for respondentDate 23 January 2026
JUDGMENT
The claimant was not constructively dismissed by the respondent. The respondent did not make any unlawful deductions from the claimant’s wages and did not breach the claimant’s contract of employment. His claim is dismissed.
REASONS
[1]The claimant presented a claim on 15 September 2025 complaining that he had been constructively and unfairly dismissed by the respondent. The respondent resisted the claim. In his claim form, the claimant made reference to unlawful deductions from wages and other breaches of contract, but no evidence was led by the claimant in this regard. The claimant only sought compensation for loss of earnings arising from the termination of his employment with the respondent. The other claims are therefore dismissed.[2]The claimant represented himself and the respondent was represented by counsel. A joint bundle of documents was lodged. The claimant gave evidence and the respondent led evidence from Mr MacKenzie who was the claimant’s line manager, Mr Lappin who had dealt with disciplinary proceedings concerning the claimant, Mr Convery who dealt with the claimant’s appeal against the disciplinary outcome and Mr MacCluskey who dealt with the claimant’s grievance. The claimant provided a written submission, and oral submissions were made on behalf of the respondent. Issues to determine[3]The Tribunal was required to determine whether in terms of section 95(1) (c) Employment Rights Act, the claimant had terminated his contract of employment in circumstances such that he was entitled to terminate it without notice by reason of the employer’s conduct.[4]Following the case of Western Excavating (ECC) Ltd v Sharp 1978 ICR 221 in order to determine whether an employee has been constructively dismissed, it is necessary to consider whether a claimant has established that: i. There was a fundamental breach of contract on the part of the employer ii. The employer’s breach caused the claimant to resign iii. The claimant did not delay too long before resigning, thus affirming the contract. Findings in fact[5]Having listened to the evidence and considered the documents to which reference was made and the submissions of the parties, the following material facts were found to have been established.[6]The claimant commenced employment with the respondent on 16 March 2020 in the role of “Home consultant”. He was issued with a contract of employment at that time, which stated that “You may be required to undertake other duties from time to time as we may reasonably require.” The contract made no reference to the provision of transport either to allow the claimant to carry out his duties or for personal use.[7]The respondent is a retail company which sells carpets and floor coverings. The claimant was employed in the Straiton branch. He visited potential customers’ homes in a van provided by the respondent to discuss possible sales to them. His van was essentially a mobile showroom with samples of some of the products sold by the respondent. When the claimant did not have appointments with customers, he would work in the branch assisting his colleagues. He had worked from other branches during the course of his employment.[8]The respondent monitors reviews on Trustpilot regarding its services and is very focussed on developing a reputation for the provision of good customer service. Two reviews regarding the claimant from appointments on 17 October and 22 October 2024 came to the attention of the respondent which concerned the claimant. One review gave 1 star and the other gave 2 stars.[9]The claimant was invited to an investigation meeting on 30 October 2024 by letter of 29 October to “consider the allegation of unsatisfactory customer service, leading to multiple complaints.” The claimant did not receive that letter as it was sent to his personal email address and only became of aware of the meeting shortly before it was due to commence.[10]The investigation meeting was chaired by Mr MacKenzie (‘SM’), who was the claimant’s line manager and he was accompanied by Ms Allan, a customer champion. The claimant was provided with details of the two customer reviews and asked to give information on what had happened with both customers.[11]The claimant had made a recording on his phone of one of the interactions with the customer which were under discussion, and he subsequently played this to SM.[12]SM decided that the matter should progress to a disciplinary hearing for unsatisfactory customer service and intimated his decision to the respondent’s HR team.[13]The claimant was invited to a disciplinary meeting on 14 November 2024 by email of 12 November. He was provided with a copy of the notes from the investigation meeting at that time. The claimant objected to that hearing being chaired by Mr Lappin (‘JL’) in an email of 13 November because of his experience with JL in a previous disciplinary meeting and in particular the notes which had been taken from that meeting. He was informed that JL would conduct the hearing and that the notes from the hearing would be sent to him to review and confirm as accurate.[14]The claimant did not have a colleague to accompany him at the meeting on 14 November and when JL met him in advance of the hearing, he was concerned that the claimant appeared to be behaving in an erratic manner and was not in the right frame of mind for a disciplinary hearing. On that basis he proposed that the hearing be rescheduled to which the claimant had no objection.[15]The claimant sent a lengthy email on 14 November to the respondent setting out his position on the complaints which had been made regarding his customer service with proposals for solutions to avoid further such issues arising.[16]A disciplinary hearing took place on 28 November. JL chaired that meeting and the claimant was accompanied by a colleague from the Straiton store. The claimant was informed in a letter of 8 January 2025 that he was to be issued with a written warning which would remain on his record for a period of 12 months. The claimant was given the right to appeal against that decision.[17]The claimant appealed against the decision. One of the reviews which had been submitted, had been submitted by the customer’s son who had not been present during the claimant’s attendance at the customer’s house. The claimant raised the possibility of the daughter of customer who had been present being contacted to provide her version of events. It was not unreasonable of the respondent to fail to act on this suggestion.[18]An appeal hearing took place on 20 January which was chaired by the manager of another store, Mr Convery. The claimant was not accompanied. The hearing was conducted in a reasonable and fair manner, and the claimant was provided with the notes of the meeting on the day of the hearing.[19]Mr Convery wrote to the claimant on 4 February to inform him that his decision was that his appeal was not upheld. Mr Convery addressed the question of contacting the daughter of one of the customers.[20]Following a further complaint from a customer regarding customer service by the claimant, SM in discussion with his line manager took a decision that the claimant’s job role was changing to that of estimator. An estimator role did not require high levels of customer engagement and did not require the use of the company “showroom” van. The claimant was informed of this decision on 3 March. The claimant was told by SM that he should hand the company van back on 13 March. He left the van at the Straiton branch on that date and was permitted to get a taxi home at the respondent’s expense.[21]SM sent the claimant a work plan by WhatsApp message on 11 March outlining the claimant’s proposed duties for the following few weeks. The claimant informed SM by WhatsApp that he had lodged a grievance “regarding the van and changes to my role. I’m waiting for a response from HR, so I need to hold off making any changes until that’s addressed.” In a further message on 17 March to SM the claimant stated, “I don’t feel able to work before my grievance hearing is addressed.” He went on to state that he would inform the manager of the Kirkcaldy store at which he was meant to be working the following week that he would not attend.[22]The claimant lodged a grievance on 12 March regarding the disciplinary process resulting in a written warning and the decision to remove the company van from him. The respondent acknowledged the grievance in an email the following day and sated “Michael Sweeney will reach out to assist you with your travel arrangements to Kirkcaldy and any other stores that you cover in the near future. Michael has indicated that he is looking into sourcing a vehicle to help cover estimates going forward.”[23]The claimant then went on sick leave from 16 March and did not return to work prior to his resignation. He did not ever start work as an estimator or attend any stores other than Straiton after 3 March. The claimant received company sick pay and then statutory sick pay during his absence.[24]The claimant was invited to a grievance hearing on 20 March. However, he had not been able to arrange to be accompanied by a colleague or trade union representative at that meeting. The hearing was then rearranged with the agreement of the claimant and took place on 27 March at which time the claimant was accompanied by a colleague. The letter inviting the claimant to the meeting set out the purpose of the meeting as “to review and discuss the grievance you submitted and provide you with an opportunity to present your case in detail, sharing any supporting evidence and discuss any potential next steps.”[25]The claimant was of the view that at the meeting Mr MacCluskey should explain or justify the conduct the claimant was complaining about. That was not the purpose of the meeting. The claimant became agitated and upset at the way in which the meeting proceeded and became quite aggressive. Mr MacCluskey suspended the meeting.[26]The claimant sent an email to the respondent after the grievance meeting stating that “he would not be accepting any further phone calls regarding this matter. Please ensure all future communication is in writing. I expect a formal written response to each point raised in my grievance, as required by the ACAS Code of Practice.”[27]Thereafter, Mr MacCluskey set out questions in writing seeking further information about the claimant’s grievance and the claimant responded in writing to those questions. Mr MacCluskey then carried out further investigations into the matters raised by the claimant and spoke with various individuals. The content of those discussions were noted. Mr MacCluskey sent his decision on the grievance to the claimant by letter dated 24 April 2024. He stated that he was satisfied that the disciplinary proceedings against the claimant had been conducted in accordance with the ACAS Code of Practice. In relation to the issue of the removal of the company van and lack of procedure, the letter stated “During this investigation, I discovered that although you were informed of the intended change to your role, no changes had been initiated on our internal systems. As a result, your salary and contractual details have remained unchanged, which is why no paperwork has been provided to date. In line with our standard practices, no contractual change would be implemented without first providing you with the appropriate written documentation. I am therefore satisfied that the role change and removal of the van were handled appropriately under the circumstances.” The claimant was informed that the grievance was not upheld.[28]The claimant submitted a Subject Access Request on 17 March 2024. The claimant was informed that his request had generated “1800 emails”.[29]The claimant sent an email to the respondent on 25 April, asking for confirmation that “1. All grievance related and appeal deadlines are paused until ten working days after the complete DSAR bundle has been supplied. 2. No adverse inference will be drawn from my waiting for this information before determining next steps. 3. My employment status, pay and benefits will remain unchanged during this interim period.” The respondent confirmed agreement to the points outlined by the claimant.[30]The claimant did not appeal against the outcome of his grievance.[31]The claimant was provided with a response to his DSAR on 9 May 2025 and the discrepancy between the original number of 1800 emails and the information provided to him was explained. Following further correspondence, the claimant was informed on 30 May that should he remain dissatisfied he could lodge a formal complaint with the ICO. The claimant has submitted a complaint to the ICO in that regard.[32]The claimant resigned by email dated 9 September 2025 stating “By reason of the Respondent’s cumulative breaches of contract and the ACAS Code, I resign with immediate effect. The final breach was your failure to provide either(a) the pre-decision disclosure that led to the van removal and role change, or(b) a lawful exemption index with signed custodian confirmations by 17.00 BST on 9 September 2025, as requested. This follows: (i) unilateral removal of my van and role change without consultation; (ii) a grievance directed into a pseudo-disciplinary; (iii) predetermination and post-hoc rationalisation (“the decision has been made”; refusal to justify decisions); (iv) apparent bias/conflict where my line manager was mentioned in one of the complaints and remained involved; (v) avoidance of written outcomes; and (vi) continued SAR non-compliance. Trust and confidence are destroyed. This resignation is submitted under ERA 1996 s.95(1)(c). I will commence ACAS Early Conciliation and lodge and ET1”[33]The claimant has not worked since his resignation and has been signed off by his doctor as unfit to work. Observations on the evidence[34]It was difficult to follow the claimant’s evidence. It is appreciated that witnesses are often nervous and that may result in them speaking quickly, but the claimant had to reminded on numerous occasions to slow down so that his evidence could be understood and noted. It appeared to the Tribunal that the claimant had become focussed on two issues, why the daughter of a customer had not been spoken to about the complaint made by her brother on Trustpilot and why he did not receive anything in response to his DSAR in relation to the decision to change his duties. The respondent’s evidence in relation to the failure to contact the daughter of a customer was that it would likely have made matters worse. The claimant did not seem to appreciate that the respondent had no contact details for the daughter in question and that he was expecting her to speak in support of him when her brother had made negative comments about him presumably having been given information from his mother. In relation to the DSAR issue, the claimant appeared unable to accept that there was nothing in writing regarding the decision that his role should change and this appears to have been why he did not resign until some months after he was told his role was to change.[35]The respondent’s witnesses were all straightforward. There were some conflicts in their evidence in relation to who was spoken to regarding the claimant’s grievance, but the Tribunal preferred the evidence of Mr MacCluskey in that regard given that it was him who had been responsible for carrying out the investigations themselves. Discussion and decision[36]The claimant’s position was that the respondent had been in breach of the duty of mutual trust and confidence in relation to the way in which the disciplinary and grievance procedures had been conducted, the decision that he should be required to give up his van and the way in which his DSAR was handled. He said that he did not immediately return to work because he would have affirmed the decision to take away his van if he had and that the respondent had agreed to a pause on matters until the DSAR had been addressed. He therefore said that he had not delayed unduly in resigning and it was not until the day before his resignation that he had come to the view the respondent would not fully comply with the DSAR.[37]The respondent’s position was essentially that there was no breach of contract, and that even if it could be said that any of the respondent’s conduct had amounted to a breach of contract which would allow the claimant to resign and claim constructive dismissal, he had delayed too long in doing so.[38]There was nothing whatsoever in the way in which the respondent dealt with the disciplinary proceedings regarding the claimant or his grievance which would amount to a breach of contract, never mind a fundamental breach. One issue raised by the claimant was that his manager had investigated the initial matters and that he had been named in one of the complaints. However, SM was not aware at the time that he was the salesman referred to in the review and the claimant did not raise this at the time. The failure by the respondent to contact the daughter of a customer was also perfectly understandable. Even if they could obtain contact details for the person, it was not clear on what basis she was likely to say anything in support of the claimant, which would necessarily involve her contradicting her brother and potentially her mother. As was suggested, this would only be likely to make the issue worse in terms of customer service for the respondent.[39]In addition, even though the claimant had appealed the disciplinary warning given to him, the matter was investigated again as part of the claimant’s grievance.[40]In terms of the change of role, the claimant was informed in the grievance outcome letter that his contract had not yet been changed and that his salary and contractual details remained the same. He had asked the respondent to confirm no changes to his employment status would be made until the outcome of his grievance and the respondent had agreed to this.[41]In any event, the principal concern of the claimant was that he would no longer have use of the van he had. There was nothing in his contract to suggest that he was entitled to the use of a company van for personal purposes. However, even if such a right had been implied into the contract given the length of time the claimant had been able to use the van for personal purposes, the respondent’s evidence was that they were looking into providing him with an alternative. The claimant said that the change would impact on his income although he did not produce any evidence to substantiate that proposition. The respondent’s evidence was that there might be a slight reduction, but that the bonuses available would likely be similar as although the commission amount was less, in a role of estimator, an employee would have a higher conversion rate to sales and would have more calls on clients which could convert to a bonus. That evidence was not challenged by the claimant.[42]The claimant’s contract stated that he could be required to carry out other duties at the request of the respondent. It made no reference to him being entitled to a van for personal use. There was no evidence led to suggest that the change in role would result in a material change in income for the claimant.[43]However, even if it could be said that the proposed changes amounted to a fundamental breach of contract, they had not been implemented other than the claimant being required to return the van to the store. The claimant had made clear that he would not carry out the new duties until his grievance had been resolved. The respondent had agreed that no changes to his job status would be made pending the outcome of the grievance. However, the claimant was then off sick from 16 March until he resigned on 9 September. He was informed in the grievance outcome that the changes had not yet been processed and that his contract had not been changed. He did not appeal against that outcome or seek to engage with the respondent regarding a return to work and what that would involve. His focus appeared to be entirely on the question of the DSAR. It is recognised that the respondent could have referred the claimant to occupational health to encourage his return to work, but that was not a matter the claimant said amounted to a breach of contract.[44]There was no evidence to suggest that the way in which the respondent had dealt with the claimant’s DSAR amounted to a fundamental breach of contract. The claimant’s main concerns appeared to be that he had not been provided with documentation regarding the decision to change his role, yet the respondent’s position was that no such correspondence existed.[45]The claimant gave no coherent explanation as to why he waited until September to resign. He simply said that he was waiting for the DSAR to be dealt with. However he had been informed at the latest by 30 May 2025 that so far as the respondent was concerned, the DSAR had been dealt with and if the claimant remained unhappy, he could complain to the ICO, which he has done.[46]The mere passage of time before resigning will not necessarily amount to affirmation of any breaches of contract. An employee may continue perform a contract under protest. In addition, there may be special circumstances which would justify a delay in resigning. Where an employee argues that they resigned in response to a “last straw”, if that is part of a course of conduct which cumulatively constitutes a breach of mutual trust and confidence, the last straw may allow an employee to rely on the totality of the acts said to amount to a breach of mutual trust and confidence.[47]In Kaur v Leeds Teaching Hospitals NHS Trust 2019 ICR 1, the Court of Appeal provided guidance to Tribunals in addressing cases where an employee sought to argue that they resigned in response to a last straw. i. 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? ii. has he or she affirmed the contract since that act? iii. if not, was that act (or omission) by itself a repudiatory breach of contract? iv. if not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of trust and confidence? v. did the employee resign in response (or partly in response) to that breach?[48]In the present case, the claimant appears to rely on what he perceived to be a failure of the respondent to fully comply with a DSAR request. That did not amount to a repudiatory breach, on the evidence before the Tribunal. It did not amount to part of a course of conduct comprising several acts and omissions which could cumulatively be viewed as a repudiatory breach.[49]Although the claimant’s position was that he resigned in relation to a last straw in that he was still looking for information from the respondent, that did not in the Tribunal’s view amount to a last straw. The claimant was simply seeking information which the respondent had been saying for months did not exist. It therefore could not revive the previous matters on which the claimant relied.[50]The only potentially fundamental breach complained of by the claimant was the change of role and removal of van. While the van was removed from the claimant, he had been told that efforts were being made to find another van for him. There was no evidence to suggest that the claimant would have been entitled to a van for personal use during long term sick leave.[51]Even if it could be said that the change in role was a breach of contract and not an anticipatory breach, given it had never been implemented, the claimant delayed too long in resigning in response to any breach. He was told about the proposed change in role on 3 March but did not resign until over 6 months later. During that time, he was in receipt of company sick pay and then statutory sick pay. He was informed on 24 April that no contractual changes had been implemented. The claimant did not appeal against the outcome of the grievance or seek to engage with the respondent to determine what his duties would be if he returned to work or whether he would be provided with a van as had been suggested. While the claimant was off sick, there was no evidence to suggest that he was incapacitated such that he could not make decisions about his employment.[52]In all these circumstances, the Tribunal came to the view that the respondent had not fundamentally breached the claimant’s contract of employment. The only breach which could potentially amount to a fundamental breach was the decision to change the claimant’s role and remove his van from him. Even if it could be said that the decision to change his role and remove his van from him was a fundamental rather than anticipatory breach of contract, the claimant affirmed the contract by waiting over 6 months before resigning. There was no last straw on which the claimant could rely in relation to a DSAR.[53]Therefore, the claimant was not constructively dismissed and his claim fails.