Mr A Croy v City Plumbing Supplies Holdings Ltd: 4106421/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4106421/2023Venue AberdeenHearing 2, 3 and 4 April 10
Between
Mr A CroyClaimantCity Plumbing Supplies Holdings LtdRespondent
Before
Employment Judge N M HosieDate 23 April 2024
JUDGMENT
The Judgment of the Tribunal is that the claim is dismissed.
REASONS
[1]Alan Croy claimed that he was constructively and unfairly dismissed by the respondent Company, City Plumbing Supplies Holdings Ltd (“City E.T. Z4 (WR) Plumbing”). He maintained that his employer was in breach of the implied term of trust and confidence. The claim was denied in its entirety by City Plumbing.[2]It was agreed that, in the first instance, the Hearing would only determine the issue of liability. The evidence I first heard evidence from Mr Croy and then, on his behalf, from his partner, Sarah Irvine, and Mark Musk, a friend. His witnesses spoke to an incident which occurred in the Northern Bar in Aberdeen on 9 April 2022, which featured in the case
The evidence
[3]On behalf of City Plumbing I heard evidence from:- * James (“Jim”) Ross, the Manager of the Branch in Aberdeen where the claimant worked * Christopher Paxton, a Regional Manager who heard a collective grievance which was brought by Mr Croy’s colleagues against him and in respect of other unrelated matters * Steven Bisset, the Manager of one of City Plumbing’s Branches in Glasgow, who heard one of Mr Croy’s grievances * Christopher Aston, a Regional Manager, who heard Mr Croy’s Appeal against Mr Bisset’s decision not to uphold his grievance.[4]Both parties submitted a bundle of documents (“C”) and (“R”). These included written statements from the claimant’s witnesses, Sarah Irvine (C. 51-52) and Mark Musk (C53), to which they spoke when giving evidence.
The facts
[5]Having heard the evidence and considered the documentary productions, I was able to make the following findings in fact. Mr Croy commenced his employment with City Plumbing as a “Driver/Warehouse Assistant” on 22 July 2018. His Contract of Employment was one of the productions (R.50-57). His employment ended when he resigned on 10 August 2023 (R.274).[6]Mr Croy’s employment was interrupted at various periods when he was signed off due to ill-health, in particular with stress, anxiety and depression.[7]When he was first employed, he was required to do deliveries using his employer’s 7.5 tonne truck (“the truck”). At the Branch, in Aberdeen, where Mr Croy worked there were around 8 employees at the time, split between the warehouse and the office. Jim Ross was the Branch Manager. Roddy Adamson was the Assistant Branch Manager. The claimant was the only employee who was qualified to drive the truck. There was also a large transit 3.5 tonne vehicle which was also used for deliveries, but the driver only required to have a normal driver’s licence. Period from 22 July 2018 to June 2020 (Claimant furloughed)[8]That period from the start of Mr Croy’s employment was uneventful. He was “furloughed” for a period due to the Covid Pandemic and returned to work in June 2020. Period from June 2020 to August .2020 (Claimant at work)[9]Mr Croy was at work during this period driving the truck. He claimed that he was subjected to “bullying and victimisation” during this period by Jim Ross, the Branch Managers use of the vehicle tracking system. This was denied by Mr Ross.[10]I was not persuaded that Mr Croy was “micro-managed” and “bullied”, as he alleged, at that lime. The main reason for this was that I preferred the evidence of Jim Ross. He gave his evidence in a measured, consistent and convincing manner and presented as credible and reliable. The truck which was driven by Mr Croy had a tracking system and Mr Ross also had available a “Route Planner” to monitor the location of the truck and ensure that it was en route and on time. City Plumbing has agreed time limits for some of its customers.[11]Mr Ross started to get complaints from customers about Mr Croy’s deliveries from around early 2020 and the Route Planner revealed unscheduled stops, route changes with the truck going in the wrong direction from that planned, on occasions. When Mr Croy returned to work in June 2020 there was no improvement. Mr Ross raised the matter with Mr Croy and advised him that if the discrepancies continued he would have to “take action”.[12]Further, in early 2020 an Area Director informed Mr Ross of “83 tachograph infringements” and asked him to speak to Mr Ross. Most of the “infringements” were to do with taking breaks or Mr Croy leaving the tachograph card in the vehicle. Mr Croy’s first grievance[13]Mr Croy raised a grievance in or around January 2021. His grievance was not included with the documentary productions. However, Mr Croy produced a copy of the grievance outcome letter, dated 8 February 2021, from Mark Law, a Branch Manager (C.20-22).[14]Mr Croy’s grievance was partially upheld. Mr Law decided that there was “not adequate justification” for his company sick pay being withheld. During the Tribunal Hearing, Mr Croy said that this issue had been resolved and that it was not a significant factor in his decision to resign.[15]Mr Law found that the “tracker” was being used, ‘In accordance with its intended purpose”. He also said this in his letter in relation to Mr Croy’s allegation that he had been “undermined and bullied”: “/ have also been in receipt of Jim’s (Jim Ross) dated logs in regard to informal discussions held with yourself These were in relation to poor performance issues pertaining to your use of the vehicle, unscheduled stops, unauthorised route changes and epod usage.” August 2020 to May 2021 (Claimant signed off)[16]Mr Croy was signed off work during this period with “anxiety and depression”. When he was off, Mr Ross arranged for another employee, Gary Brown, to complete his “CPC training” to enable him to drive the truck. When Mr Brown took over the driving duties, there was a significant improvement in the timing of deliveries and there were less “infringements”. 10 May 2021 to March 2022 (Claimant at work)[17]Mr Croy returned to work on 10 May 2021. Jim Ross spoke to Mr Croy by telephone about his return on 6 May. Roddy Adamson, the respondent’s Assistant Branch Manager, took Notes (R. 176-177). Although Mr Croy disputed parts of these Notes, I was satisfied that they were reasonably accurate. The reason for this was that Jim Ross, a credible and reliable witness, spoke to their accuracy; they were contemporaneous Notes taken by the Roddy Adamson; although some months later, on 20 September 2021, Mr Ross sent an e-mail to Mr Croy which was consistent with the terms of the Note (R.183) and this was not disputed by Mr Croy. Mr Ross told Mr Croy during the telephone conversation that there had been “operational changes” during his lengthy absence. In particular, he told him that as Gary Brown was driving the truck he would be working in the warehouse in future and that he would only be used as “emergency cover for driving”. The Notes record that Mr Croy said, “ok that’s fine’. His Job Title in his Contract of Employment was “Driver/Warehouse Assistant” (R.50). Mr Croy’s second grievance[18]On or about 12 July 2021, Mr Croy raised a grievance about being taken off driving duties. The documentation about this grievance was not included with the documentary productions. However, it was not disputed that a grievance meeting was held on “Teams” on 26 August 2021, that the grievance was not upheld and that the reason given for the role change was “operational issues”.[19]Mr Croy’s appeal against the outcome of the grievance was also unsuccessful. Mr Croy continued to work in the warehouse, therefore, until March 2022 when he was signed off again due to ill-health. March 2022 until 10 August 2023 (Claimant signed off)[20]Mr Croy was signed off work again due to anxiety and depression. As it transpired, he did not return to work before he resigned on 10 August 2023 (R.274).[21]During this period, Mr Ross wrote to Mr Croy on a number of occasions about “unauthorised absences” (R.202, R.203, R.220/221 and R.223).[22]Mr Ross also had a “Welfare Meeting” with him on 31 May 2022 (R.215-219); obtained a Report from his GP (R.228-229); had further meetings with him on 6 October 2022 (R.231-234) and 7 December (R.236-237); and obtained an Occupational Health Report on 19 January 2023 (R.239-240). Incident in The Northern Bar on 9 April 2022[23]On Saturday 9 April 2022, Mr Croy’s work colleagues had a “day out” in town which involved having lunch and visiting various licensed premises. In the early evening, they went into the Northern Bar where they met Mr Croy. He had been scheduled to work that morning but was signed off due to ill-health.[24]Mr Croy claimed that Jim Ross “came up and aggressively grabbed me from behind leaving me very uncomfortable and embarrassed in front of my friends." However, this was disputed by Mr Ross. He claimed that he only went over to Mr Croy and said “hi Alan".[25]Once again, I preferred the evidence of Mr Ross. The reason for this was that he was a credible and reliable witness and also Mr Croy gave conflicting accounts of this which I detail below, in relation to the grievance which Mr Croy raised on 31 March 2023.[26]I also find in fact that Pat Hall, one of Mr Croy’s colleagues who was on the day out approached him in a confrontational manner and questioned why he was in the Northern Bar when he was signed off work..[27]Mr Croy also claimed that one of his colleagues, John Seiche stayed in the Northern Bar after most of his other colleagues had left. Mr Croy claimed that Mr Seiche “insinuated" that it was Mr Ross' idea to visit the Northern Bar and “catch him out" He also claimed that Mr Seiche told him that Mr Ross had referred to him as a “troublemaker”.[28]I was unable to make findings in fact in this regard, despite the evidence of Mr Croy and his two witnesses. There were various reasons for this. This was not part of Mr Croy's pleadings; he did not complain about this to his employer until over a year later; although I did not hear evidence from Mr Seiche, Mr Croy’s allegations were contradicted by a written statement which Mr Seiche gave as part of a “collective grievance” which was raised by a number of Mr Croy’s colleagues against him on 24 May 2022 (R.212-213); Mr Seiche was under the influence of alcohol at the time; in a text from Kieran Duguid, one of Mr Croy's work colleagues, he referred to Mr Croy, “gunning for J/m”(C.16) and when asked about this in cross examination at the Tribunal Hearing, Mr Croy was unable to give a satisfactory explanation of why he would make that comment; Mr Croy’s witnesses were not impartial. I did not consider Mr Croy’s evidence or that of his witnesses to be reliable. Collective grievance[29]On 24 May 2022, “several members of staff' raised a collective grievance about Mr Croy and other business related matters (R.204-213). This included a statement from John Seiche, who I referred to above in connection with the incident in the Northern Bar in the previous month (R.212-213). Like the others, Mr Seiche was extremely critical of Mr Croy and his “poor working habits". He also said this in his statement: “I have spoken directly to Alan, as and when, working habits have been out of order, and detrimental to the smooth flow of operations. .....It is hugely disappointing to witness the exceptional deterioration of work morale and general well-being of my fellow work colleagues simply due to one person’s personal issues and lack of work ethics"[30]The collective grievance was investigated by Christopher Paxton, Regional Manager. He interviewed Mr Croy on 11 November 2022. Notes of that meeting were produced (R.318-321). I was satisfied that they were reasonably accurate.[31]The incident in the Northern Bar was discussed at the meeting. The following are excerpts from the Notes (R.319):-...... CP - What was your relationship with Pat? AC - / got on realty well with Pat when I was doing the driving role. The relationship turned sour when the first grievance was raised, AC - Example In April last year Jim and the guys had a work day out. They came to my local bar, Jim tapped me on the shoulder to say hello. Pat came over and challenged me saying I should be at work and was being very abusive in front of the bar staff and my friends. Jim had to calm her down. The whole incident was very embarrassing.”[32]On 7 March 2023, Mr Paxton sent an e-mail to Mr Croy to inform him that the collective grievance had not been upheld (C.28). Mr Croy’s third grievance[33]Mr Croy raised a further grievance on 31 March 2023 (R.254). He described it as a “2 part, grievance”. He claimed that the collective grievance had been “malicious”; he also complained about the way he had been treated by Jim Ross and Pat Hall, in the Northern Bar on 9 April 2022 and that he had been met with hostility when he returned to work in May 2021. Mr Croy’s grievance was investigated by Steven Bisset, the Manager of the respondent’s Branch in Glasgow. Mr Bisset gave his evidence in a measured, consistent and convincing manner and presented as credible and reliable. He interviewed Mr Croy by telephone on 23 May 2023. Notes of their discussion were produced (R255-257). I was satisfied that the Notes were reasonably accurate.[34]Mr Bisset also interviewed Jim Ross, Pat Hall and Chris Paxton.[35]When interviewed, Mr Paxton told Mr Bisset that the collective grievance was not only against Mr Croy but it was also part of a wider grievance about operations and procedures at the Aberdeen Branch.[36]On 6 June 2023, Mr Bissei wrote to Mr Croy to advise him that his grievance was “partially upheld”, but only in respect of an issue which Mr Croy had raised in relation to his statutory sick pay (R.259-261).[37]Mr Bisset advised Mr Croy that he had “found no evidence to suggest that the grievance was raised malicious!/. He also rejected his allegation about the way he had been treated in the Northern Bar, principally because Mr Croy had given different accounts to Mr Paxton in connection with the collective grievance: he said that he had, “tapped him on the shoulder to say hello” (R.319). However, when Mr Bisset interviewed him he claimed that Mr Ross had acted, “aggressively grabbed him from behind and left him very uncomfortable and embarrassed in front of his friend ” (R.255) Appeal[38]On 13 June 2023, Mr Croy appealed against the outcome of his grievance. His appeal was investigated by Christopher Aston, Regional Manager. Mr Aston also gave his evidence in a measured, consistent and convincing manner and presented as credible and reliable. He interviewed Mr Croy on 18 July 2023. Notes of the meeting were produced (R.264-266). I was satisfied that the Notes were reasonably accurate.[39]On 1 August 2023, Mr Aston wrote to Mr Croy to advise him that his appeal had not been upheld (R.271-273). Resignation[40]On 10 August 2023, Mr Croy wrote to Mr Ross to intimate his resignation. His letter was in the following terms (R.274):- liDear Jim Please accept this letter as my resignation from my role as Driver with PTS with immediate effect (10/08/2023) as this ongoing situation has become intolerable and I consider myself as having been constructively dismissed. I’m sending this following the outcome of my recent grievance and response from Chris Paxton related to notes from a previous grievance. My reasons are as follows: 1. Bullying, victimisation and intimidation in the workplace via vehicle tracking (acknowledged in initial complaint). 2. Retaliatory behaviour from manager following an initial grievance by removing me from my role as driver; inconsistent reasoning for removal from role and the refusal by manager to provide any reasons in writing. 3. After returning from a period of mental ill-health, being met with a hostile work environment, in particular from new staff working in the warehouse. I was informed at a later date by one of the new staff members that they had been set up by management to dislike me and had been told their job was under threat when I returned. The individual involved apologised to me for his aggressive behaviour and could see that he had been set up. 4. When I returned at this point, I was told I would never drive for the company again as the job had been given to another employee. When this employee went off long-term sick, rather than giving the role back to me, they hired agency drivers instead. 5. / was forced to work in the warehouse, despite never having had training and having been taken on specifically for my driving background and ability to drive the 7.5 tonne lorry. 6. Payroll neglected to send me an SSP1 forms (sic) as required by law. After I instigated contact, I eventually received the incorrect documents, only getting the correct documents a few weeks later in April. My SSP ended in September. This left me at a considerable financial disadvantage. 7. Feeling intimidated by management and staff in my local pub. Throughout the last two years since I returned after furlough during the pandemic, I’ve consistently followed company policy to address issues and have been consistently let down. I feel that the latest grievance findings for me are the last straw and my trust in the company has been breached. I’m left with no alternative other than to resign due to these reasons. Please send my P45, digital tachocard, any other documents and anything else owed to me, including accrued holiday pay to my home address shown at the top of this document. Regards” Respondent’s submissions[41]The respondent’s Counsel made written submissions. These are referred to for their terms. I take no issue with his reference to the relevant law.[42]Counsel took the view that the basis for the claim was an alleged breach of the implied term of trust and confidence (Woods v. W M Car Services (Peterborough) Ltd [1981] ICR 666).[43]Counsel addressed in his submissions each of the seven separate allegations of breach of contract in Mr Croy’s letter of resignation (R.274).[44]So far as the first allegation was concerned, which Counsel described as, “the vehicle tracking allegation”, he submitted that, “apart from Mr Croy’s suspicion there is nothing in the evidence to suggest any ‘bullying, victimisation and intimidation’ by way of the vehicle tracking allegation.” Counsel referred to the evidence of Jim Ross in this connection. He submitted that, “he gave a clear and coherent explanation of the tracking system and why it was used to track Mr Croy’s vehicle. It was used in response to concerns about delays in Mr Croy’s deliveries and return to the depot”[45]Counsel submitted that the second, fourth and fifth allegations could be taken together. He referred to them as, “the removal as a driver”.[46]He submitted that, “again, apart from Mr Croy’s suspicion, there is nothing in the evidence to suggest there was retaliatory behaviour by Mr Ross. Mr Ross gave a valid reason for doing so. A driver (Gary) who took over the driver role when Mr Croy was off work performed the role considerably better than Mr Croy had” He also referred to the Contract of Employment which permits use of Mr Croy as a Warehouse Assistant (R50).[47]Counsel termed the third allegation in the letter of resignation as, “set up by management to be disliked” He submitted that this was an allegation “based on hearsay’ and that there was no evidence to support it. He submitted that, “at worst the allegation simply confirms the difficulties Mr Croy had in his driving role”[48]Counsel termed the seventh allegation, the “pub incident”. Mr Ross denied that he had “intimidated' Mr Croy in the Norther Bar on 9 April 2022. Further, Mr Croy gave conflicting accounts to Mr Paxton some six months after the incident and to Mr Bisset more than a year after the incident. in any event, Mr Croy did not make a complaint about this for more than a year.[49]In summary, Counsel submitted that: “When considered objectively none of these allegations - separately or cumulatively, can be considered to have amounted to a breach of the implied term, properly understood. For that reason alone, this claim must fail.” The “last straw”[50]Mr Croy used the term “last straw” in his letter of resignation. Counsel submitted that this inferred that he resigned in response to a final incident. He submitted that the last straw was as described in the letter of resignation namely “.....the latest grievance findings for me are the last straw” Counsel submitted that the grievance findings, “were simply the conclusion of an appeal against the outcome of the investigation into and consideration of Mr Croy’s grievance of April 2023. ...... It is simply the conclusion of the internal process.” Counsel submitted that this did not add to the list of Mr Croy’s grievances and was not enough to amount to a “last straw”.[51]Counsel submitted that, in any event ,and even if the Tribunal had to find that there was a “last straw” and there was a breach of contract, that Mr Croy had affirmed any breach: “Mr Croy by his continued interaction with his employer between first knowing of the events he claims formed part of the reasons for his resignation has affirmed his contract of employment and is thus barred from this claim”[52]in support of his submission in this regard, Counsel referred to Mari v. Reuters Ltd UKEAT/0539/13 and the leading case on the doctrine of affirmation, namely WE Cox Toner (International) Ltd v. Crook [1981] IRLR 443. Claimant’s submissions[53]Mr Croy also made written submissions. These are referred to for their terms. He confirmed that the basis for his claim was an alleged breach of the implied term of trust and confidence. He submitted that when he returned to work after Covid (in August 2020) he was, “micro-managed and bullied” by his manager Jim Ross. He referred to Mr Ross’ evidence that he had given him a verbal warning and that there had been seven further “discrepancies” and yet there had been no “escalation”, such as a written warning.[54]Mr Croy also alleged that his alleged tachograph infringements had been “inappropriately handled and indeed ignored for around two years". He claimed that he had no knowledge of these infringements and that neither the Branch Manager, Mr Ross or the Assistant Branch Manager Roddy Adamson understood how the tachograph works.[55]So far as the “pub incident” was concerned, Mr Croy questioned why his Manager, Mr Ross, would choose Mr Croy’s “local bar” which Mr Ross did not frequent and why he would take all his staff there. He submitted that Mr Ross had a reasonable expectation that he would be there. He submitted that a reasonable person would not have done this, particularly as he knew that Mr Croy was “struggling with mental health issues".[56]Mr Croy also referred to the comments made to him and his partner Sarah Irvine by John Seiche. He submitted that, “the toxic environment at work was in part created by Jim Ross." Return to work in May 2021[57]Mr Croy submitted that the refusal by Jim Ross to confirm in writing that the loss of his driving duties, “was because it was the driving job that caused my mental health problems” In this regard he referred to the Employment Tribunal decision in Mobbs v. Weetabix Ltd 3307596/2020. The “Group Grievance”[58]Mr Croy submitted that the time taken to deal with this, the further delay in informing him of the outcome and the refusal to provide him with any information of the allegations made against him was unacceptable.[59]Mr Croy further submitted that he had followed a grievance process “as recommended by AGAS and in Gordon v. J & D Pierce (Contracts) Ltd UKEATPAS/0010/20/SS.[60]In this regard, Mr Croy referred to Leany v. Loughborough University [2023] EAT155. He submitted that, “the delays were due to the respondent and did not amount to affirmation on his part”. He submitted that he, “resigned immediately after the grievance appeal.”[61]He submitted, with reference again to Mobbs, that his resignation “took place within a reasonable time”.[62]Finally he said this: *7 submit to this Tribunal that the behaviour of my Branch Manager, the lack of proof to back up his allegations of poor performance, the incident in my local bar, the poor handling of the grievance process all lead to major decline in my mental health and breached the implied terms of trust and confidence and my ultimate resignation” Discussion and Decision
Relevant law
[63]Having resigned, it was for Mr Croy to estabiish that he had been constructively dismissed. This meant that, under the terms of s.95(1)(c) of the Employment Rights Act 1996, he had to show that he terminated his contract of employment (with or without notice) in circumstances such that he was entitled to do so by reason of his employer’s conduct. It is well established that that means that the employee is required to show that the employer is guilty of conduct which is a fundamental 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. The employee, in those circumstances, is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to entitle him to leave at once.[64]The correct approach to determining whether or not there has been a constructive dismissal is discussed in the well-known Court of Appeal case, Western Excavating (ECC) Ltd v. Sharp [1978] ICR 221, to which I was referred. According to Lord Denning, in order for an employee to be able to establish constructive dismissal, four conditions must be met:- 1) there needs to be an actual or anticipatory breach of a contractual term by the employer; 2) such a breach must be sufficiently serious (a “fundamental breach”) to justify the employee’s resignation; 3) that he resigned in response to the breach, 4) that he did not delay too long in resigning in response to the employer’s breach as he will have affirmed the contract and lost the right to claim constructive dismissal.[65]Accordingly, whether an employee is entitled to terminate his contract of employment without notice by reason of his employer’s conduct and claim constructive dismissal, must be determined in accordance with the law of contract. It is not enough, therefore, to establish that the employer acted unreasonably. The reasonableness, or otherwise, of the employer’s conduct is relevant but the extent of any unreasonableness has to be weighed and assessed and a Tribunal must bear in mind that the test is whether the employer is guilty of a breach which goes to the root of the contract or shows that the employer no longer intends to be bound by one or more of its essential terms.[66]So far as the present case was concerned, I was mindful that there is implied into all contracts of employment a term that employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee.[67]Browne-Wilkinson J in Woods, to which I was referred, described how a breach of this implied term might arise: “To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”[68]Further, in Malik v. BCCI [1988] 2 A.C.20, Lord Steyn stated that in assessing whether or not there has been a breach of the implied obligation of mutual trust and confidence it is the impact of the employer’s behaviour on the employee that is significant - not the intentions of the employer. Moreover, the impact on the employee must be assessed objectively.[69]When I considered the authorities, I recognised that a wide range of behaviour by employers can give rise to a fundamental breach of the implied term of mutual trust and confidence. However, the breach has to be “repudiatory”, in order for a claimant to rely upon it. Serious conduct is therefore required from the employer. This was emphasised by the EAT in Frenkl Topping v. King EAT/01606/15. In that case, Langstaff J said at paras. 12 and 13 that the test of breach:- “is a demanding test. It has been held (see for instance the case of BG v. O’Brian [2001] IRLR at paragraph 27) that simply acting in an unreasonable manner is not sufficient. The word qualifying ‘damage’ is ‘seriously’. This is a word of significant emphasis. The purpose of such a term is identified by Lord Steyn in Malik as being ‘apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.” Present case[70]I found favour with the manner in which the respondent’s Counsel addressed each of the claimant’s allegations in his letter of resignation (R.274). “Bullying, Victimisation and Intimidation in the workplace via vehicle Tracking” (Allegation 1).[71]Apart from Mr Croy’s suspicion, there was no evidence to support this allegation. As ! recorded above, the evidence of Jim Ross in this connection, which I found to be credible and reliable, was significant. He explained why the tracking system had been used to track Mr Croy’s vehicle. There had been concerns for some time about the timing of his deliveries; there had been route changes and unscheduled stops; there had been complaints from customers; and Mr Ross’ Area Director had instructed him to speak to Mr Croy about numerous tachograph infringements. Mr Ross did raise concerns with Mr Croy and tried to get him on a Training Course so that he would be able to use the tachograph properly. However, the Course was fully booked. “The removal as a driver allegation” (Allegations 2, 4 and 5)[72]Mr Ross also gave a convincing explanation of why he arranged for Gary Brown to take over the driving of the truck when Mr Croy was off work. He told him “on numerous occasions” that this was due to “operational changes at the Branch” during his absence and he confirmed this by e-mail to Mr Croy on 20 September 2021 (R.183). As it transpired, Mr Brown proved to be more reliable and more efficient than Mr Croy had been. There was provision in Mr Croy’s contract for him to work as a Driver/Warehouse assistant (R.50). “Set up by management to be disliked and to fail” (Allegation 3)[73]This was denied by Mr Ross, a credible and reliable witness. As Counsel submitted, it was an allegation “based on hearsay”; it was based on what Mr Croy claimed he had been told by John Seiche. I did not find his evidence and that of his witnesses, in this regard to be reliable, It was wholly lacking in specification and it was inconsistent with the statement which Mr Seiche provided in the Collective Grievance against Mr Croy (R.212-213). “Feeling intimidated by management and staff in my local pub” (Allegation 7)[74]This related to the events in the Northern Bar on 9 April 2022. So far as Mr Croy’s interaction in the Northern Bar with Mr Ross was concerned, It was significant that Mr Croy gave two different accounts which were identified by Steven Bisset when he heard Mr Croy’s third grievance (R.260).[75]When interviewed by Chris Paxton on 11 November 2022 in connection with the Collective Grievance he said that, “Jim tapped me on the shoulder to say he/Zo” (R.319).[76]However, when interviewed by Mr Bisset on May 2023, in connection with his final grievance he claimed, “on entering the bar Jim immediately came up and aggressively grabbed me from behind leaving me very uncomfortable and embarrassed in front of my friends" (R.255).[77]When Mr Ross gave evidence at the Tribunal Hearing, he denied that he had acted aggressively towards Mr Croy. He denied that he had gone to the Northern Bar to “catch out” Mr Croy. Apart from anything else, he could not have known that Mr Croy would be in that pub, at that time.[78]Mr Croy’s evidence was neither not reliable. Further, he did not raise the matter with his employer until over a year later.[79]Mr Ross was a credible and reliable witness. His evidence in this regard (and that of Mr Paxton) was not challenged at the Tribunal Hearing. I believed Mr Ross. I preferred his account[80]Although I did not hear from Pat Hall, I accepted Mr Ross’s evidence that she was “aggrieved” at seeing Mr Croy out socialising in the Bar when he was scheduled to work that morning and was signed off work due to ill-health. Mr Ross said that, “she had a couple of sentences" with Mr Croy when she expressed her displeasure.[81]Again, Mr Croy did not not raise this with his employer until over a year later,[82]John Seiche remained in the Bar after most of the others had left. I did not hear evidence from him but I did hear evidence about what he is alleged to have said from Mr Croy and Sarah Irvine (C.51).[83]As I recorded above, much of what Mr Seiche is alleged to have said was hearsay and lacked any detail. Mr Seiche was under the influence of alcohol at the time. What he is alleged to have said was inconsistent with the statement he gave the following month as part of the Collective Grievance (R.212-213). Also, Mr Croy did not raise this with his employer until over a year later.[84]I arrived at the view, therefore, that Mr Croy’s evidence in this regard was not reliable.[85]I had no difficulty arriving at the view, therefore, that the conduct of the respondent’s employees in the Northern Bar was not conduct which was either a substantial breach of the contract of employment or calculated to destroy or seriously damage the relationship of trust and confidence between Mr Croy and his employer.[86]When looked at objectively, therefore, the claimant’s allegations in his letter of resignation, either individually or cumulatively, did not amount to a breach of the implied term of trust and confidence. For that reason alone, his unfair dismissal claim must fail. “Last straw”[87]Mr Croy made reference in this letter of resignation to a “last straw” (R.274): *7 feel that the latest grievance findings for me are the last straw and my trust in the company has been breached." He also said the same in his claim form (R.19).[88]At the Tribunal Hearing, Mr Croy tried, unsuccessfully, to distance himself from what he had actually said in his letter. He claimed that his complaint was that he hadn’t received details of the Collective Grievance, but he did not say that in his letter. His evidence was confused and unconvincing.[89]It is clear from the wording of the letter that he resigned because his grievance appeal was not upheld. I found favour, therefore, with Counsel’s submissions in this regard: “the last straw adds nothing to Mr Croy’s allegations. It is not a complaint on its own. It is simply the conclusion of the internal process. That is not enough to amount to a last straw." I was satisfied that the respondent’s grievance process was perfectly proper.[90]As far as the allegation of a “last straw” was concerned, I was guided by the decision in Kaur v. Leeds Teaching Hospitals [2018] EWCA Civ 978 to which I was referred. In that case the Court of Appeal reviewed cases on the “last straw doctrine” and formulated an approach to “last straw cases”, referring to the implied term of trust and confidence as the “Malik term”.[91]The Court of Appeal said this (in bold type, along with my comments on the evidence ): - “In an normal case where an employee claims to have been constructively dismissed it is sufficient for a Tribunal to ask itself the following questions: “(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?” According to Mr Croy’s letter of resignation, this was “the latest grievance findings” which was that his third grievance was unsuccessful. “(2) Has he or she affirmed the contract since that act?” I deal with this below. “(3) If not, was that act (or omission) by itself a repudiatory breach of contract?” As I explained above, the respondent’s grievance process was perfectly proper and the respondent’s decision was simply the conclusion of the “internal process”. “(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conductcomprising several acts or 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, for the reason given at the end of para.45 above)”. As I recorded above, I concluded that the claimant’s allegations, even when viewed cumulatively, did not amount to a breach of the implied term of trust and confidence. “(5) Did the employee resign in response (or partly in response) to that breach? Mr Croy resigned because his grievance appeal was unsuccessful. That did not amount to, or add to, Mr Croy’s list of grievances set out in his letter of resignation.[92]There was no “last straw”, therefore, and that is another reason why his claim must be dismissed.[93]If an employee waits too long after the employer’s breach of contract before resigning, he or she may have taken to affirmed the contract and lose the right to claim constructive dismissal. In the words of Lord Denning MR in Western Excavating, the employee, “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”[94]As Counsel submitted, “all allegations set out in the letter of resignation, apart from the delay in providing SSP Forms (which I understand Mr Croy accepts was not a significant breach of his contract of employment, the pub incident and the third allegation term “set up by management to be disliked” were made and resolved before or while Mr Croy was working in the warehouse’' (from 6 May 2021 to 9 March 2022).[95]The two remaining allegations were known to Mr Croy, at the latest from the date of the “pub incident” on 9 April 2022.[96]Although Mr Croy was off work with a stress-related condition, from 10 March 2022 until he resigned on 10 August 2023, he was in communication with the respondent and was able to raise a grievance about these matters.[97]Further, Mr Croy was well enough to take part in the welfare meeting with Jim Ross and Chris Paxton on 6 October 2022 (R.231-234).[98]He was also able to engage in an occupational health appointment by telephone on 19 January 2023 (R.240), and a meeting on 8 March 2023 (R.245-246).[99]He was also able to raise a grievance, but did not do so until 31 March 2023, nearly one year after he was in a position to do so.[100]I was satisfied, therefore, that Counsel’s submissions in this regard were wellfounded and that Mr Croy, “had affirmed his contract of employment by continuing to contribute to discussion with his employer, albeit while signed off work.”[101]Accordingly, even if any of his allegations, individually or cumulatively had amounted to a breach of the implied term of trust and confidence, his claim would still fail as he had affirmed his contract.