Mr P Handzel v McCurrach UK Ltd and Mr S O’Brien: 4106832/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4106832/2024Venue GlasgowHearing 30 September; 1 & 2 October; 8, 9 and 10 December 2025
Between
Mr Paul HandzelClaimantMcCurrach UK Ltd and Mr S O’BrienRespondent
Before
Employment Judge R KingMr Y Mahmood (instructed by Solicitor) for respondentDate 24 March 2026
JUDGMENT
The Judgment of the Tribunal is as follows:(1) The claimant’s complaint that he was unfairly constructively dismissed fails and is dismissed.(2) The claimant’s complaints that he suffered detriment in terms of sections 45A(1)(f) and 47B of the Employment Rights Act 1996 fail and are dismissed.(3) The Claimant’s complaint that he suffered unauthorised deductions from his wages in terms of section 13 of the Employment Rights Act 1996 fails and is dismissed.
REASONS
[1]The claimant has presented complaints of unfair constructive dismissal, that he has been subjected to detriments in terms of sections 45A (1) (f) and 47B of the Employment Rights Act 1996 and that he has suffered unauthorised deductions from wages in terms of section 13 of the Employment Rights Act 1996. Relevant law Constructive dismissal
Relevant law
[2]The relevant law is contained in the Employment Rights Act 1996. Section 94 (1) of this act provides an employee with the right not to be unfairly dismissed by his employer.[3]Section 95 (1)(c) provides that an employee is to be regarded as dismissed if – “the employee terminates the contract under which he was employed (with or without notice) in circumstances which he is entitled to terminate it without notice by reason of the employee’s conduct.”[4]The leading case relating to constructive unfair dismissal is Western Excavating (ECC) Limited v Sharp [1978] ICR 221 in which Lord Denning held that: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”[5]In Leeds Dental Team Ltd v Rose [2014] IRLR 8, EAT, Judge Burke found that: ''The test does not require a Tribunal to make a factual finding as to what the actual intention of the employer was; the employer's subjective intention is irrelevant. If the employer acts in such a way, considered objectively, that his conduct is likely to destroy or seriously damage the relationship of trust and confidence, then he is taken to have the objective intention spoken of…''[6]Unlike the statutory test for unfair dismissal, there is no band of reasonable responses test. It is an objective test for the Tribunal to assess whether, from the perspective of a reasonable person, in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and to refuse to perform the contract. (Tullet Prebon plc v BGC Brokers LP 2011 IRLR 420).[7]In Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 the Court of Appeal stated that in the 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?(2) Has he or she affirmed the contract since that act?(3) If not was that act (or omission) by itself a repudiatory breach of contract?(4) If not, was it nevertheless a part (applying the approach explained in Waltham Forest v Omilaju [2004] EWCA Civ 1493) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a previous affirmation, because the effect of the final act is to revive the right to resign.)(5) Did the employee resign in response (or partly in response) to that breach?[8]In the present case the claimant relies on an alleged breach of the implied term of trust and confidence. As established in Malik v BCCI 1997 ICR 606, this is a requirement that an employer must not – “without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.”[9]In Leeds Dental Team Ltd v Rose [2014] IRLR 8, EAT Judge Burke confirmed that it is not necessary to show any subjective intention on the part of an employer to destroy or damage the relationship: ''The test does not require a Tribunal to make a factual finding as to what the actual intention of the employer was; the employer's subjective intention is irrelevant. If the employer acts in such a way, considered objectively, that his conduct is likely to destroy or seriously damage the relationship of trust and confidence, then he is taken to have the objective intention spoken of…''[10]There is no rule of law that a constructive dismissal is necessarily unfair. If it finds there has been a constructive dismissal a Tribunal must also consider whether that dismissal was fair or unfair having regard to section 98(4) of the Employment Rights Act 1996, which provides – “(4) Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case”[11]The Tribunal must therefore consider whether the respondent had a potentially fair reason for the breach (Berriman v Delabole Slate 1985 ICR 546) and whether it was within the range of reasonable responses for an employer to breach the contract for that reason in the circumstances. When making this assessment, the Tribunal must not substitute its own view of what it would have done but consider whether a reasonable employer would have done so, recognising that in many cases there is more than one reasonable response.[12]Section 45A of the Employment Rights Act 1996 provides: Section 45A (1) (f) – Employment Rights Act 1996 (Working Time Cases)[13]Section 45A(1) of the Employment Rights Act 1996 provides: 45A Working time cases (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker— (a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the M1 Working Time Regulations 1998, (b) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations, (c) failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations, (d) being— (i) a representative of members of the workforce for the purposes of Schedule 1 to those Regulations, or (ii) a candidate in an election in which any person elected will, on being elected, be such a representative, performed (or proposed to perform) any functions or activities as such a representative or candidate, (e) brought proceedings against the employer to enforce a right conferred on him by those Regulations, or (f) alleged that the employer had infringed such a right.(2) It is immaterial for the purposes of subsection (1)(e) or (f)— (a) whether or not the worker has the right, or (b) whether or not the right has been infringed, but, for those provisions to apply, the claim to the right and that it has been infringed must be made in good faith. Section 47B of the Employment Rights Act 1996 – protected disclosure detriment[14]A worker has the right not to be subjected to any detriment on the ground that “the worker has made a protected disclosure – section 47B (1) of the[15]The term “detriment” is not defined in the act and tribunals should therefore look to the meaning of detriment established by discrimination case law. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, it was held that a worker suffers detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work. An “unjustified sense of grievance” is not enough. What is a qualifying disclosure?[16]A qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the types of wrongdoing or failure listed in section 43B (1)(a) to (f) of the Employment Rights Act 1996 which provides as follows: 43B Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[17]In Williams v Brown UKEAT/0044/19, in considering the definition of a qualifying disclosure, the EAT noted that: “9 It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure was made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (A) to (F). Fifthly, if the worker does hold such a belief, it must be reasonably held. 10 Unless all five conditions are satisfied, there will not be a qualifying disclosure. In a given case, any one or more of them may be in dispute, but in every case, it is a good idea for the tribunal to work through all five. That is for two reasons. Firstly, it will identify to the reader unambiguously which, if any, of the five conditions are accepted as having been fulfilled in the given case, and which of them are in dispute. Secondly, it may assist the tribunal to ensure, and to demonstrate, that it has not confused or elided any of the elements, by addressing each in turn, setting out in turn its reasoning and conclusions in relation to those which are in dispute.” Section 13 of the Employment Rights Act 1996 – unauthorised deduction from wages[18]Section 13 of the Employment Rights Act 1996 provides: 13 Right not to suffer unauthorised deductions (1) An employer shall not make a deduction from wages of a worker employed by him unless – (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”[19]Section 14 of the Employment Rights Act 1996 provides: 14 Excepted deductions (1) Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of— (a) an overpayment of wages, or (b) an overpayment in respect of expenses incurred by the worker in carrying out his employment, made (for any reason) by the employer to the worker
Issues
[20]The issues for the Tribunal were agreed between the parties in advance of the hearing and were as follows: Constructive dismissal 1 Was the Claimant constructively dismissed by virtue of Section 95 (1) ERA 1996? 2 Did the undernoted alleged breach(es) of contract, viewed separately in isolation, or cumulatively, amount to breaches of the Claimant’s contract? 3 In determining 2 above did: if) R1’s letter to the C dated 13 May 24 invite him to an investigation meeting under R1’s disciplinary procedures? ii) R2 infer in his 13th May 24 letter to the Claimant that he had committed an act of misconduct by sending emails outside of normal working hours? iii) R2’s involvement in the investigation for the reasons sated in para 7 ET1 PA deny the Claimant the right to a fair and impartial disciplinary process? iv) DE fail to consider the C’s following complaints when handling his grievance?• SO had falsely inferred that sending the emails out with normal working hours was in breach of R1’s Disciplinary Procedures or other Policies.• SO’s decisions to commence an investigation which could result in a disciplinary hearing amounted to an unlawful detriment in breach of Section 45A(1)(f) of the v) Did DE fail to make any findings in relation to the following complaint in the C’s grievance?• SO victimised and harassed him by taking the decision to subject him to a disciplinary investigation in circumstances where there were no grounds to do so. vi) Was DE’s findings in relation to complaint i) in the C’s grievance contradicted by the documentary evidence? vii) Did DE’s outcome letter fail to make clear what aspects of complaint v) had been substantiated? viii) R1 permits R2 to retain responsibility for the Claimant’s welfare (as confirmed in R2’s letter to the Claimant dated 10th July 2024 inviting him to attend a welfare meeting with him) ix) R2 takes the decision at viii) above in the knowledge of the Claimant’s grievance had been upheld and or the grievance process had not been exhausted and or had included serious complaints of bullying and harassment against R2. 4 Did the Respondent’s conduct at 3 above if proved breach the implied term of trust and confidence? The Tribunal will need to decide: i. Whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and ii. Whether it had reasonable and proper cause for doing so 5 Did the Claimant resign in response to the alleged breach or for some other unconnected reason? 6 Did the Claimant affirm the contract? 6 Did the conduct consist of a series of acts or incidents (the Claimant contends that it does) 7 What was the alleged final straw? (See para 26 of the ET1 Paper Apart) 8 Taken cumulatively would the conduct amount to a breach of the implied term? 9 Was the Claimant’s dismissed as unfair in accordance with section 98 Employment Rights Act 1996? S47B detriment – Protected disclosure detriment 10 Did the Claimant make a qualifying disclosure(s) under Section 43B (1) ERA 1996 in: i) his email to the Respondents dated 28th April 2024 ii) his Solicitor’s email to the Respondents dated 23rd May 2024 and iii) at the grievance meeting on 19th June 2024? 11 Did the Claimant have a reasonable belief that the information tended to show a breach of Sections 43B(1) (b) and/or (d) of the ERA 1996 namely that: i) A person had failed, was failing or was likely to fail to comply with any legal obligation, and or ii) The health or safety of any individual had been, was being or was likely to be endangered. 12 Was the Claimant’s belief reasonably held? 13 Did the Claimant have a reasonable belief that the disclosures were made in the public interest? 14 Was the Claimant’s belief reasonable held? 15 Was the Claimant subjected to any of the alleged detriments set out in paragraph 24 of the ET1 Paper Apart. Namely the following: i) R2’s decision to subject the Claimant to a disciplinary investigation process regarding the emails. (Detriment 1). ii) R2’s assertion that the Claimant may have breached R1’s disciplinary policies or other procedures because of the time the emails were sent (Detriment 2). iii) R2’s conduct in bombarding the Claimant in late April – late May 2024 with numerous requests to attend welfare and/or disciplinary investigation meetings in the full knowledge that he was medically unfit to do so. (Detriment 3). iv) DE’s mishandling of the Claimant’s grievance for the reasons stated at paragraphs 13 – 16 above. (Detriment 4). v) R2’s decision to input occupational offsets into Core HR, which resulted in shortfalls to the Claimant’s final salary. (Detriment 5). vi) R2’s failure to acknowledge or respond to the Claimant’s email to him dated 30th August 2024 seeking an explanation for the deductions to his final salary. (Detriment 6). 16 If the answer to 15 above is yes, did the making of any of the protected disclosures materially influence the Respondent’s actions in subjecting the Claimant to the detriments? S45A(1) (f) of ERA 1996 – Working time cases 17 Did the Claimant allege that the employer had infringed a right under the Working time regulations in an email dated 28 April 2024 or through his solicitor on 23 May 2024? 18 Did the Respondents subject the Claimant to the detriments set out in paragraph 24 of the ET1 Paper Apart on the grounds that he alleged an infringement of his rights under the 1998 Regulations? S13 Employment Rights Act 1996 – Unlawful deduction of wages 19 Were the wages paid to the Claimant in June, July & August 2024 less than the wages he should have been paid? 20 Was there a deduction required or authorized by statute?[21]Was the £5,371 gross shortfall on the Claimant’s salary an illegal deduction from wages in breach of Section 13 of the Employment Rights Act 1996? Witnesses 21. On behalf of the claimant, the Tribunal heard evidence from the claimant alone. On behalf of the respondent, it heard evidence from Sean O’Brien (the second respondent who was the first respondent’s regional manager), Kimberly Orange (Payroll Manager), David Easson (the respondent’s head of ‘Zing’, which is a field sales business) and Asim Muhammed (Chief Information Officer)[22]A joint bundle of documents was also lodged and both parties provided helpful submissions at the conclusion of the hearing. The claimant also produced additional written submissions on 7 January 2026 with the Tribunal’s permission, although the respondent declined the opportunity to answer those. Preliminary issue – panel composition[23]It should be noted that when the case called for a final hearing, both parties had expected a full panel to hear the case, but the hearing had been set down for a Judge sitting alone. It was established that this was due to an administrative oversight and that there were no available lay members already present in the building. The parties were invited to consider their positions and make representations in circumstances where they had expected a full panel to hear their case. Having done so, they confirmed they were both content to proceed with a Judge sitting alone. Liability only[24]This hearing was fixed to deal with liability only. Findings in fact[25]Having heard evidence, the Tribunal makes the following findings in fact. Where there was a dispute, it reached a conclusion on the balance of probabilities. It is not the Tribunal’s intention to recite or make findings in fact on every piece of evidence that it heard, since that would include facts that were ultimately irrelevant to its conclusion on the disputed issues to be determined.
Background
[26]The claimant was employed by the first respondent from 2 February 2015 until 16 August 2024, following his resignation with notice on 15 July 2024.[27]The first respondent is a field marketing company based in the UK and the Republic of Ireland. At all material times in relation to this complaint, the claimant’s job title was Regional Partnership Manager, and he was assigned to work as part of a team of eight employees dealing exclusively with Unilever who were one of the first respondent’s major clients.[28]Routinely the claimant and the other team members reported to Unilever’s sales channel lead, Simon Weston in relation to day-to-day operational issues, targets and objectives.[29]For HR related matters the team reported to the second respondent, Sean O’Brien, who managed the first respondent’s relationship with Unilever but did not get involved in day-to-day operational issues.[30]Mr O’Brien therefore managed the team in terms of its recruitment, absence management/reporting, and managing any capability or performance issues with team members that had been identified by Unilever.[31]Until late 2023 the claimant had an ‘elevated’ position within the team and carried out certain training and mentoring functions. However, that arrangement was ended due to budget cuts and he reverted to the same role as everyone else in the team.[32]Each team member had a geographical area of responsibility in which they carried out their role on behalf of Unilever. The claimant’s geographical area was all of Scotland. His key objective was to increase sales of Ben and Jerry’s ice cream throughout Scotland through selling it to wholesalers, cash and carries or aggregators such as Just Eat and Deliveroo.[33]The claimant’s role therefore involved regular travel by car to customer sites throughout Scotland, often involving long distances and late evenings depending on a customer’s location and availability. He was however free to plan his own working days in terms of deciding which customers he visited each day, and free to plan the timing of his journeys, subject to customer availability. Although his contractual working hours were 10 a.m. to 6 p.m., of necessity he often finished work later than 6 p.m. although he would receive time off in lieu (TOIL) to compensate him in that event. Performance review meeting on 8 April 2024[34]On 8 April 2024, the claimant had a planned performance review meeting with Mr Weston from Unilever. During this meeting, Mr Weston expressed concerns to the claimant about his performance at that time. He then sent an e-mail to the claimant on 16 April in which he described the claimant’s performance as being “well behind time gone target on key KPIs and quite a distance away from the rest of the team”.[35]In his e-mail Mr Weston therefore set out a list of objectives for the claimant to work on over the following five weeks, those objectives being aligned to his annual Key Performance Indicators (KPIs). Mr Weston proposed a threeweek review against the objectives on 30 April 2024 and a five-week review on 13 May 2024. He also invited the claimant to contact him if he required any additional support or training to help him with the objectives that had been set.[36]Mr Weston’s 16 April 2024 e-mail was copied to Mr O’Brien for his information. Mr O’Brien had no input to it and was only aware that Mr Weston was conducting a series of one-to-one meetings with all his team members on the Unilever contract around this time. The claimant’s conversation with Mr O’Brien on 17 April 2024[37]The claimant had already arranged to take a holiday between 17 and 28 April 2024. On 17 April 2024, the claimant spoke to Mr O’Brien. When Mr O’Brien asked him about Mr Weston’s e-mail of 16 April, the only concern the claimant expressed was about the five-week timeline proposed before the final review meeting because he had arranged two weeks holiday during that period. Otherwise, the claimant appeared to Mr O’Brien to be in a good frame of mind, ‘’full of the joys’’, and looking forward to his break. The claimant’s email to Mr Weston and Mr O’Brien on 27 April 2024[38]On Saturday 27 April 2024, the claimant replied to Mr Weston’s 16 April email, his email also being addressed to Mr O’Brien. In that email, the claimant explained that due to other business priorities there was inadequate time for him to meet the objectives set. He also raised concerns about his not having access to “Salesforce”, which is one of the Unilever systems that tracks sales activities. He believed that this lack of access had affected the measurement of his performance.[39]Although addressed to both Mr Weston and Mr O’Brien the concerns raised related only to operational matters within Mr Weston’s responsibility and systems issues that were entirely within Unilever’s control. The claimant’s email to Mr Weston and Mr O’Brien on Sunday 28 April 2024 at 10.49 p.m.[40]Before he had received any reply to his 27 April e-mail, the claimant sent a further email to Mr Weston and Mr O’Brien on Sunday 28 April at 10.49 p.m., in the following terms: “Hi Simon, Sean Hope you are well. Further to my email yesterday (which can be found below for your convenience), I have had some time to further consider what additional support could include, what has been missing, and what other impacts have led us to the position we currently find ourselves in. With this in mind, I feel I must now take the time to highlight and explore some of the issues I have faced and how they have impacted my professional performance and personal wellbeing.”[41]The claimant began by setting out his concerns about certain of Unilever’s systems, including his concern that one of the systems, namely Salesforce, was losing sales data.[42]In addition to the claimant’s comments in relation to systems, he also set out the following concerns: “Direction; Throughout the course of this role, we have been tasked with taking “ownership” of our territories. While in 2024, this “ownership” has been seriously diminished through yet more last minute AdHoc requests (JetB2B), significant priority being placed on Asset Touch (not highlighted in the Action Plan) and Existing Priority QSR visits, alongside what for all intents and purposes equates to diminished responsibility for Chains (despite this clearly remaining on my Action Plan), the “direction’’ from leadership has remained the same even when questioned, “work more strategically” – at this stage, I can only see that continually repeating this phrase has become synonymous with refusal to provide clear precise direction over empowering a workforce. Health; Quite aside from having severely restricted time to complete regular physical activities due to workload and expectation especially in terms of being required to be flexibility in working hours (not that any of that should be disagreed in terms of this email), I have previously raised my serious concerns around burnout, mental fatigue and ill health of myself and the team based on being a high performing, high intensity team subject to frequently changing working hours, long distance travel and, above acceptable number of ad-hoc prorates; at no point have these concerns been addressed, I even felt they were ignored when raised late last year. Mental health is not just a very visible topic these days, it is also an issue close to me personally (given my mother condition of which leadership are well aware); I find this to be one of the most concerning points within this email. Furthermore, during a recent meeting, I requested an update on the people effected by Unilever’s separation of the Ice Cream business and this was met with nothing short of dismissal of concern, even so far as to seem to cause agitation that I would dare ask about it when it had “already been brief”; this toxic response on what is clearly a topic that will inevitably effect me personal and all of us in the department in the long run and it is not something I would expect of any professional let alone a leader within an effected department. Additionally I have felt and raised concerns about toxic passive aggressive behaviour within the team and given that response I now feel this has likely gone unmentioned to the individual concerned which would explain why I experienced it a second time soon after highlighting the first instance (I regret not raising this second instance at the time however I now feel this would have likely gone unchecked as well). Working hours; I have touched on this topic several times throughout this email and numerous connects, but I do believe it deserves its own point. When recruited, we were provided standard contracted hours of 10am-6pm, some flexibility with that was also discussed and accepted given the nature of the business we undertake; however this “some” has continued to spiral at an alarming rate to a position where I as an individual and my Regional Partnership Manager peers simply no longer see the agreed standard and are just assumed to accept the expectation that we will work whenever and for however long is expected by leadership even if that means starting at 8am and working through until 11pm or later, while I am more than aware and have in fact used time in lieu recovered from this overtime it strikes me this has become a very unhealthy work/life balance far outside the boundaries initially implied… after all reclaiming time at a later date serves only to reduce available time at that later time and doesn’t reduce the overall workload. While I’m sure none of the above will come as a surprise (and I am certain there is more to add to this list), having been previously highlighted by myself and my current position within the team and with regards the wider team while I held a position elevated responsibility and duty of care for said team members of the course of several months last year; but also by numerous other members of the team themselves often on multiple occasions over the course of the last 14 months, I felt it necessary to compile this email to provide a comprehensive outline of some of what I consider to be the more significant and impactful failings that have led to not only performance issues but also to unnecessary stress. I look forward to your response regarding these issues.”[43]Shortly after the claimant sent this email, he sent a further email at 2.50 a.m. on Monday 29 April 2024, this time only to Mr O’Brien, in the following terms: “Hi Sean, Upon review of the points raised in both yesterday’s and today’s emails, it has become clear to me that the failings in leadership/management have gone far beyond reasonably acceptable learnings and that being forced to highlight such failures in my own time while on annual leave have caused myself additional unnecessary stress, pressure, anxiety and harm. I feel that at this juncture, I must request that this matter be investigated further, beyond its current scope. In regards the unnecessary stress, anxiety and harm I have been caused by all this I have had to seek out of hours GP advice and have been prescribed medication and given a sick line extending a minimum 2 weeks on the grounds of work related stress, the certificate for which will follow once received. It is my hope that in sharing this with you now, I can be afforded the opportunity to recover in relative peace, should you be absolutely required to reach me I would request you do so via my personal email address (which is the one this email is delivered from) as quite honestly I don’t think I can currently face opening a work associated device on a regular basis to check for coms.”[44]As promised, the claimant then sent Mr O’Brien a fit note confirming that he was not fit for work between 28 April and 11 May 2024. The proposed health and wellbeing meeting on 3 May 2024[45]In reply, Mr O’Brien emailed the claimant at 4.45 p.m. on 29 April 2024 acknowledging the fit note and inviting him to a health and wellbeing meeting by Teams on Friday 3 May at 1 p.m. While most of the concerns in the claimant’s e-mails related to systems and operational matters within Unilever’s control, the claimant’s concerns about his health and his working hours were of immediate importance to Mr O’Brien and to the first respondent, especially as this was the first time they had been raised with Mr O’Brien personally. Further, none of the other team members had ever raised such concerns with Mr O’Brien either, since the team was created in January 2023. All of this was surprising and concerning for Mr O’Brien.[46]Mr O’Brien did not take any of the claimant’s e-mails as personal criticism of his own management of the claimant, as he understood that the criticisms were all aimed at Unilever and its systems. Further, Mr O’Brien had no concerns about the tone of the claimant’s e-mails.[47]In his email, Mr O’Brien explained to the claimant that “At this meeting we can discuss the reasons for the stress at work and the contents of the emails that you sent over the weekend of 27th/28th April 2024.”[48]The claimant replied to that e-mail on Tuesday 30 April at 9.04 p.m. in the “Hi Sean, I appreciate your patience regarding my response and of course your concern; my medication hasn’t kicked in yet and as I am sure you can imagine, I’m therefore finding even the idea of interactions around McCurrach and Unilever very difficult at the moment, something I truly do want this to get better. In over 9 years at the company this has never happened so you can envisage how unsettling this is for me. As much as I wish to resolve this situation quickly and effectively, I do fear any such meeting as the one you have outlined could be extremely triggering for my mental health and even exacerbate my symptoms. At this time, I feel it would likely be best for me to follow my doctor’s advice and therefore suggest we postpone any such meetings until my return. If however there are any reasons why you feel this meeting should to take place during my recommended period of recovery I would ask you share them with me here so I can make an informed decision.”[49]In response, Mr O’Brien emailed the claimant at 12:50 p.m. on 3 May in the “Hi Paul, I acknowledge your request not to have this afternoon’s health wellbeing meeting. I would however like to make contact with you next week when your medication has started to take effect. I am open for this contact to be of your choice and therefore by phone, Teams or in the form of a home visit. Please let me know your thoughts and I will organise accordingly. Hope you have a good bank holiday weekend and take care! Sean.”[50]On Monday 6 May 2024 at 10.54 p.m., the claimant e-mailed Mr O’Brien in the following terms: “I appreciate your enthusiasm to reach out this coming week however I am still confused the reason this meeting is required, and the need for it to take place while I’m deemed not medically fit to work. If you could provide these details here so I might be able to assess the benefits of such communications to my mental health and wellbeing, and should there be significant value in regards my recovery I would of course be open to such a meeting. With this in mind, and being that I am still only a few days into my course of medication alongside doing all I can to expedite my return, such as spending time with those I know and trust, I would suggest unless these details can be provided and it is of perceivable benefit in my opinion, that it would likely best we continue to follow the course laid out by my doctor and pick this up on my return.”[51]On 7 May at 10 a.m. Mr O’Brien e-mailed the claimant in the following terms – ‘’The purpose of the Health Wellbeing Meeting is to talk through the reasons for you being off sick at present and to help support you in any way we can. As this is now the second week of your absence and you are due back to work on Monday 13th May 2024 I will take on board your wishes and hold this meeting as part of your return to work on that day. Hope you have a good week and look forward to speaking to you on Monday. If you need anything, please do not hesitate to give me a call.’’ Email from Russ Waddington, UK Field Sales Controller[52]On 7 May 2024 at 2.06 p.m., Russ Waddington, one of Unilever’s senior managers, who at that time had responsibility for the account on which the claimant worked, emailed Mr O’Brien in the following terms: “Afternoon Sean, At the end of last week and today, I have had some in depth conversations with Simon Weston about Paul Handzel, and with regret, I need to ask you to remove him from our account, as the position has become untenable. As discussed, due to the way Paul Hansell has acted unprofessionally, following recent performance conversations, and various emails sent to Simon, which was completely inappropriate, I cannot see how Paul could fit back within the team following his actions. Therefore, to confirm his role has now become untenable with Simon and Unilever.”[53]At the time this email was received, the claimant was subject to a fit note covering the period from 28 April to 11 May 2024.[54]On Sunday May 12, 2024, the claimant emailed Mr O’Brien a further fit note for the period 12 May to 26 May 2024.[55]Recognising the importance and seriousness of Mr Waddington’s email, Mr O’Brien sent an email to the claimant on Monday 13 May 2024 inviting him to a Teams meeting the following day, 14 May 2024. The invitation was in the “Dear Paul, You are required to attend an investigation meeting to be held on 14 May we may decide that there are no grounds for this. I understand that you will want to know what is going to happen as soon as possible, and I will endeavour to let you know as quickly as I can. It may be that our discussions in the meeting will enable me to at least give you some idea of whether I need to carry out any further investigations before getting back to you. You should be aware that the requirement for you to attend this investigating meeting during your working hours is deemed by the company to be a perfectly reasonable management instruction. Hence if you fail to attend without notification, or good reason, we will treat your nonattendance as a separate issue of misconduct.”[56]Although relatively formal in its tone the purpose of this letter was to invite the claimant to an investigation meeting to obtain his comments about the e-mails he had sent to Mr Weston on 27 and 28 April 2024, which had resulted in Mr Waddington’s 7 May 2024 e-mail requesting that the claimant be taken off the Unilever account.[57]At this stage the investigation meeting proposed by Mr O’Brien was not intended to be a disciplinary investigation meeting. Rather, the outcome of this investigation meeting would determine whether matters should proceed to a disciplinary investigation or simply end there with no further action taken. Those possible outcomes were reasonably clearly spelt out in Mr O’Brien’s letter of 13 May.[58]Mr O’Brien’s aim at this stage was to support the claimant and protect his role with Unilever, although he had in mind the possibility that he may need to be redeployed elsewhere in the business, subject to the outcome of the investigation.[59]As Unilever were the first respondent’s biggest customer at that time, it was important to Mr O’Brien that this investigation meeting should take place as soon as reasonably practicable, standing the terms of Mr Waddington’s email, and also because of Mr O’Brien’s concerns about the claimant’s welfare arising from the same e-mails that had resulted in Mr Waddington’s e-mail. Mr O’Brien’s intention was to secure everyone’s place in the team, and he did not wish things to ‘linger on’.[60]Mr O’Brien’s genuine belief was that an early meeting would hopefully resolve all the issues arising from the claimant’s e-mails and would help alleviate his stress. Mr O’Brien took the conscious decision not to spell out the full terms of Mr Waddington’s e-mail at this stage, in case that might add to the claimant’s stress.[61]It was appropriate for Mr O’Brien to conduct this investigation meeting because he managed the claimant for all HR issues, and he represented all the first respondent’s employees in such matters where there were customer concerns. Further, the claimant had not complained about anything within Mr O’Brien’s control or that he had allegedly done or failed to do.[62]On receipt of Mr O’Brien’s email, the claimant sent the following email in response on 13 May at 5:54 p.m.: “Regarding the invite to tomorrow’s proposed investigation meeting (attached for clarity), can I ask why this has to be scheduled now given my previous plea for time to recover? In pushing for Health Wellbeing Meetings these past two weeks you have already actively (knowingly or unknowingly) exacerbated my symptoms, and given the confusing tonal shift to an investigation could we have some reasonable adjustment? Could we have this meeting after 26th of May 2024 once I have concluded my current fit note and follow up appointment with my doctor which would coincide with my anti-depressants having had time to take effect (I have been advised this is 4 weeks and we are only in week 2); Is there a particular reason why this meeting must take place while I’m not currently fit for work, as per my fit note for work related stress, anxiety and depression? I am confused as to why I am having to firefight while unwell especially given the reason for my absence. If I’m not fit for work due to the reasons given in my fit note I’m concerned I’m not going to be at my best capacity to take on such a formal meeting that I don’t fully understand why it is happening. I’m not sure how we’ve got to this stage but as I’m sure you can appreciate the shift in context has already been extremely triggering for me today, the fact that such conversations are clearly happening outwith my knowledge is also contributing significantly to my stress levels as you can likely imagine. It is my hope that by being open about the current state of my mental health and suffering that you will consider my request seriously; and should you wish to proceed regardless, could I ask you to provide in-depth responses to all that I have raised prior to the currently proposed meeting with enough time for me to on board such responses in my current state.”[63]In response to the claimant’s email of 13 May 2024, Mr O’Brien sent the following email on 14 May 2024: “Hi Paul, thank you for the email concerning today’s investigation meeting. The reason for requesting this meeting this afternoon is that we have received a request from Unilever to remove you from the Unilever account, as they feel your position has become untenable. As this is very serious both for yourself and the business, we need to investigate the reasons for their decision with you and in turn support yourself by asking Unilever to reconsider their decision. Leaving this until the 26th May will not be possible as the matter is time sensitive and I need to reply to the client before that date. On those grounds it is a reasonable expectation for you to attend the meeting on Teams this afternoon as previously communicated.”[64]Mr O’Brien genuinely intended to ask Unilever to reconsider its decision but first of all needed the claimant’s comments. At no time did he indicate to Unilever that he would do as Mr Waddington has requested.[65]On 14 May 2024 at 12:08 p.m., the claimant’s solicitor sent an email to Mr O’Brien as follows: “Dear Sir, We are instructed to act on behalf of the above named. We write in connection with your email of today’s date to our client refusing his request on medical grounds to postpone and reschedule today’s investigatory meeting. Our client has provided cogent reasons for his request to delay today’s investigatory meeting and it is submitted the same is a request for reasonable adjustments pursuant to the Equality Act 2010. Our client is unfit to participate in the process by reason of his medical conditions evidence of which the company has been provided with in the form of GP fit notes. It is therefore submitted that proceeding with today’s meeting will be highly prejudicial to our client’s position. Further, if the hearing goes ahead in our client’s absence, he reserves the right to found on same as a procedural irregularity in any subsequent unfair dismissal litigation. The alleged seriousness of the matters to be investigated is all the more reason why the company should be delaying today’s meeting pending our client’s fitness to properly participate in it. Our client’s GP has advised that the medication he has prescribed for anxiety and depression will make him feel worse for the first 2 weeks which has been the case. The medication was prescribed on the 28th April and our client commenced taking it on the 30th April. UNILEVER does not employ our client and it is not accepted that the matter is time sensitive. UNILEVER can be advised that a company is investigating matters and the investigation has been slightly delayed due to our client’s ill health and it is expected will commence later this month. Our client simply seeks a short delay and suggests that the meeting is rescheduled for a date week commencing 27th May 2024 by which time it is hoped and expected that he will be feeling the benefits of the medication enabling his participation in the investigation meeting.”[66]In response, Mr O’Brien sent an email to the claimant’s solicitor on 15 May explaining that: “I appreciate that Paul is unwell at present, however, as the issues appear to be directly related to the reasons for his absence from work, I feel it is appropriate to arrange a meeting to discuss the concerns. I feel this may alleviate the situation once the matter has been resolved.”[67]In response to Mr O’Brien’s email, the claimant’s solicitor replied at 14:15 on 15 May 2025 explaining that: “There is no objection to a meeting being scheduled; the request is for a reasonable adjustment to be made to shortly delay the meeting to let my client’s medication to take effect as it would not be appropriate for him to attend whilst medically unfit. His full participation in the meeting is vital and him being fit to participate outweighs any inconvenience to the Company that may arise because of a short delay. It would be helpful therefore if you could kindly confirm a new date for a remote meeting week commencing 27th May 2024.”[68]By the time this email had been sent, Mr O’Brien had already sent the claimant on 15 May at 11.47 a.m. a further invitation to attend an investigation meeting on 17 May 2024 at 2 p.m. via Teams.[69]The letter attached to this invitation repeated the purpose for the meeting taking place that had been set out in the earlier invitation. To assist the claimant with his preparation for the meeting, Mr O’Brien also attached with his letter a list of the questions that he believed were relevant to the investigation that was due to take place. It was important to Mr O’Brien that he should support the claimant as much as possible, as well as investigating Mr Waddington’s concerns. As the claimant was off sick, he believed it helpful to allow him to have time to reflect on the questions in advance of the meeting.[70]So far as the question about the timing of the claimant’s emails on 27 April and 28 April was concerned Mr O’Brien was concerned about the claimant’s mental state because of the timing of his e-mails, which had been sent at the weekend and late at night. Further he had, soon after his 28 April e-mail, emailed Mr O’Brien in the early hours of the morning. That was of concern to Mr O’Brien because of its timing and because it appeared that matters were escalating quickly. He did not consider sending e-mails outside normal working hours to potentially amount to misconduct and he did not ever indicate to the claimant that he held such a belief.[71]Mr O’Brien was particularly concerned because when he had last spoken to the claimant on 17 April, although he had raised a concern about Mr Weston’s proposed review period everything else had been fine and he had been looking forward to his holiday. Furthermore, prior to 17 April, the claimant had not mentioned any of the concerns he had subsequently raised in any of his e-mails. Mr O’Brien was therefore anxious to know what had happened since they had last spoken as he could not understand this turn of events and he was concerned about the claimant’s health and wellbeing. Working Hours[72]In relation to working hours, Mr O’Brien’s understanding from previous conversations with the claimant was that he had been enjoying the flexibility of his role with Unilever. While he understood that the claimant worked some long days and late nights, he also understood that he would balance his workload by taking days off in lieu, which he agreed with Mr Weston and simply informed Mt O’Brien for the record. Consistent with Mr O’Brien’s understanding, the claimant had raised no previous concerns whatsoever about his working time until his email of 28 April.[73]So far as Mr O’Brien was concerned the claimant’s hours were of necessity flexible by agreement with Mr Weston who did not require him to work the hours complained of, namely from 8 a.m. until 11 p.m. or later, as compared to his contractual working hours of 10 a.m. to 6 p.m.[74]As a general rule, Mr O’Brien had no visibility of the claimant’s or any other team member’s working hours. Mr O’Brien’s understanding of the team’s daily activities was that their role was fluid in terms of the team members’ individual journey planning to see their customers and the hours they worked. To that extent they were ‘their own managers’ and enjoyed that flexibility. None of the other team members (starting with eight team members when the team was formed, which was down to six team members by May 2024) all of whom Mr O’Brien spoke to on an ad hoc basis and at performance meetings had had ever raised any concerns about working hours since the team had been established in January 2023. Around this time Mr O’Brien also made some casual calls to some of team members and asked if they had any concerns about working hours but they brought none to his attention. The claimant’s response to the invitation to the proposed 17 May 2024 meeting.[75]In response to this invitation, the claimant’s solicitor wrote to Mr O’Brien on 15 May 2024 at 17:57 in the following terms: “We are going round in circles here which is not helpful. My client will not be attending any meeting this week for the reasons given. With my input, my client will be able to provide answers to the questions you pose by next Thursday 23rd May 2024. Once you have these, you can then determine whether a remote investigatory meeting is still necessary.”[76]The claimant did not attend the rescheduled investigation meeting on 17 May The claimant’s grievance[77]On May 23, 2024, at 17:58, the claimant’s solicitor wrote to Mr O’Brien in the “Disciplinary investigation 2 By letter dated 13th May 2024, Mr O’Brien invited our client to attend an investigation meeting under the company’s disciplinary procedures in connection with two alleged “inappropriate” emails he sent to him and a third-party client on the 27th and 28th April 2024. 3 Leaving aside our client’s contention that neither email was appropriate, it is submitted that Mr O’Brien’s active involvement in this process is wholly inappropriate because he is demonstrably conflicted. This is because the allegations relate to emails sent to Mr O’Brien and it appears that it is he who is alleging that the emails were inappropriate and or has decided that a disciplinary investigation is warranted. If the Company determines that a disciplinary is justified (which is denied) then it is submitted that Mr O’Brien must recuse himself from playing any part in the disciplinary process. 4 In terms of both the Company’s Disciplinary Policy and the ACAS Code of Practice on Disciplinary and Grievance Procedures, our client has the right for any disciplinary process to be dealt with fairly and with integrity. There is no prospect of our client obtaining a fair disciplinary process if Mr O’Brien remains involved in the role of Disciplinary Investigation Officer and inter alia, poses questions to him about the allegations. Our client will not therefore on the advice of this office be answering questions Mr O’Brien has posed regarding the disciplinary allegations because he should not be asking any. Our client will however be happy to co-operate with any requests for information from a person appointed to conduct the investigation with no previous involvement in the matter. 5 It is requested therefore that Mr O’Brien should now withdraw from the process and pass the matter to HR for an objective assessment of whether a disciplinary investigation is necessary. For the avoidance of doubt, it is our client’s position that no disciplinary investigation is justified. If the Company disagrees, then it is called upon to specify which parts of the emails are inappropriate. Our client submits that his emails were a reasonable, candid, and proportionate response to Mr Simon Weston’s email to him dated 16th April 2024 (7:18pm) which explicitly invited him to respond with any suggestions for additional support and training regarding the Performance Review Feedback and Actions. 6 If a disciplinary investigation is to be pursued, the Company also needs to clarify the relevance of the words “outside of the normal working hours” contained in Mr O’Brien’s letter to our client dated 13th May 2024. Mr Weston’s email to our client dated 16th April 2024 was sent outside of normal working hours. Our client was on annual leave when he responded to Mr Weston’s emails and contends that there is no policy prohibiting the sending of work-related emails outside of normal working hours. Esto, there is such a Policy, our client contends that he was never made aware of it by the Company. Our client notes that in all her emails, the Company’s CEO, Jill Ross, has the following template message: “We work flexibly at McCurrach. I am sending this message now because it suits me, please respond when it suits you.” 7 In conclusion, it is submitted that there is no basis for a disciplinary investigation and if the Company disagrees, it is requested in any event it should be paused pending conclusion of our client’s grievance (see paragraphs 8 – 11 below). Grievance 8 This communication should be treated as intimation of a formal grievance on our client’s behalf in accordance with Stage 2 of the Company’s Grievance Policy. Given the seriousness of the grievance, it is submitted that it would be improper for it to be dealt with informally. Stage 1 is not appropriate because the complaint is against Mr O’Brien, our client’s immediate manager. The grievance should therefore be progressed under Stage 2 of the Company’s Grievance Policy, and it is kindly requested that HR now forwards it to the relevant Director. 9 Our client’s grievances are as follows: - i) Mr O’Brien victimised and harassed him by taking the decision to subject him to a disciplinary investigation in circumstances ii) In assuming the role of Disciplinary Investigation Officer, Mr O’Brien has acted in a manner which is procedurally flawed and in breach of the Company’s Grievance Policy and the ACAS Code on Disciplinary and Grievance Procedures. iii) Mr O’Brien has falsely inferred that sending emails out with normal working hours is in breach of the Company’s Disciplinary or other Policies. iv) Mr O’Brien’s decisions as referred to above amounts to an unlawful detriment in breach of Section 45A(1)(f) of the Employment Rights Act 1996 (see paragraphs 12 below) and v) From late April until mid/late May 2024, Mr O’Brien has harassed our client by bombarding him with welfare and/or other disciplinary investigatory meeting invites in the full knowledge that he was medically unfit to engage in such meetings. 10 In accordance with the Company’s Grievance Policy (see Notes section, paragraph 5, on page 3) and paragraph 46 of the ACAS Code on Disciplinary and Grievance Procedures it is requested that the disciplinary process (if it is to be progressed) be temporarily suspended pending conclusion of our client’s grievance. 11 Pursuant to the Company’s Grievance Policy (paragraph 4, page 3) our client requests that an independent third party is appointed to investigate and determine his grievance. Detriment legal claim 12 Our client’s email dated 28th April 2024 included an entire section on excessive working hours and that same amounted to an alleged infringement of his rights under the Working Time Regulations 1998. It is contended that there is a direct causal link between our client’s complaint about excessive working hours and Mr O’Brien’s subsequent decisions to subject him to a disciplinary investigation (the detriment) as detailed above. 13 Our client intends to invoke the ACAS Early Conciliation Procedures in the coming weeks, which is the first step in the legal process prior to lodging his claim with the employment tribunal.”[78]The claimant subsequently produced a further fit note covering the period from 27 May 2024 and the following 28 days because of “stress at work”.[79]The claimant’s grievance was initially allocated to Lindsay Thornhill, account controller. When she was unable to deal with it, she was replaced by David Easson, the respondent’s head of Sales and Execution for its Wave business unit. Mr Easson’s letter to the claimant dated 18 June 2024[80]On 18 June 2024, Mr Easson wrote to the claimant in the following terms: “I am … writing to confirm that I will hear your grievance on Wednesday 19 June at 2pm on Microsoft Teams. I will be accompanied by Denise McKechnie who will take minutes of the meeting. For ease of reference, I have briefly summarised your issues/concerns below:• You allege that Mr O’Brien victimised and harassed you by taking the decision to subject him to a disciplinary investigation in circumstances where there were no grounds to do so.• You allege that in assuming the role of Disciplinary Investigation inferred that sending emails out with normal working hours is in breach of the Company’s Disciplinary or other Policies.• You allege that Mr O’Brien’s decisions as referred to above amounts to an unlawful detriment in breach of Section 45A(1)(f) of the• You allege that from late April until mid/late May 2024, Mr O’Brien has harassed you by bombarding him with welfare and/or disciplinary investigatory meeting invites in the full knowledge that he was medically unfit to engage in such meetings. These matters will be discussed and considered at the meeting therefore it is important that you contact me in advance of the hearing, if you deem the above information to be incorrect in any way, or if you wish to add anything further to the above points. I enclose for your information a copy of our grievance procedures to which I will be making reference.”[81]In his summary of the grievances Mr Easson merged the second and third allegations into one single allegation because his belief was they both related to the disputed meeting to discuss Mr Waddington’s/Unilever’s concerns.[82]The claimant did not respond to Mr Easson’s letter with any comments in relation to his understanding of the claimant’s grievance. Grievance meeting on 19 June 2024[83]The grievance meeting took place as scheduled on 19 June 2024 by Teams. At the time of the grievance meeting the claimant was still signed off as unfit for work. The claimant was accompanied by a work companion, Gemma Cartey. During the grievance meeting, the claimant was offered every opportunity to make representations and to expand upon the written grievance that had been submitted on his behalf. Mr Easson took the claimant through each numbered part of his grievance letter and invited him to explain his concerns in relation to each, which he did. In respect of the alleged harassment the claimant also told Mr Easson that he believed Mr O’Brien had been repeatedly checking his LinkedIn profile, which he found intimidating.[84]Although at the meeting the claimant told Mr Easson that he had in his possession e-mails that would prove he had been invited to a disciplinary investigation he failed to produce any such e-mails afterwards, although he did subsequently provide a further 21 documents for Mr Easson to consider.[85]Mr Easson did not interview Mr O’Brien about the claimant’s grievance. In his view, to do so was unnecessary because the grievance related to an exchange of written correspondence in which Mr O’Brien had been a party, all of which was available to him. He therefore believed he already had a firm grasp of all the relevant evidence of the disputed issues and the related medical evidence without interviewing Mr O’Brien. Mr Easson’s grievance decision[86]Having met with the claimant and considered the documents produced afterwards, Mr Easson considered his decision.[87]Mr Easson considered the basis of the claimant’s allegation that Mr O’Brien had subjected him to a disciplinary investigation in circumstances where, on the face of it, the documents did not support such an assertion. Mr Easson concluded that, consistent with the wording of the invitation letter, the proposed investigation meeting was not a disciplinary investigation at all and further that Mr O’Brien had not suggested in his letter that sending e-mails outside working hours had amounted to misconduct.[88]Mr Easson’s conclusion was that Mr O’Brien had invited the claimant to a factfinding investigation meeting, which had been justified by the concerns Unilever had raised about the claimant’s e-mail, which also appeared to be the reasons for the claimant’s absence. It was therefore important for Mr O’Brien to speak to him as soon as possible.[89]However, he agreed with the claimant that, as the first respondent has no policy forbidding out of work emails, this should not have been a matter requiring any investigation, and therefore to that extent he upheld the claimant’s grievance.[90]In relation to the allegation that Mr O’Brien had subjected the claimant to unlawful detriments by(1) subjecting him to a disciplinary investigation and(2) falsely accusing him of misconduct in relation to the timing of his e-mails, because he had made a complaint about working time, the claimant believed that as Mr O’Brien had only commenced the alleged disciplinary procedure after he had sent his emails about working hours his emails had been the reason for that treatment.[91]However, Mr Easson concluded that as the proposed investigation meeting was not a disciplinary investigation at all and that Mr O’Brien had not suggested that sending e-mails outside working hours had amounted to misconduct there had been no such alleged detriments. His grievance that he had been subjected to detriments because he had complained about his working hours therefore should be rejected.[92]In relation to the allegation that Mr O’Brien had harassed the claimant by bombarding him with meeting invites when he should have known he was unfit for work, Mr Easson concluded that the number of e-mails had not been excessive. Further, while the claimant had been certified as unfit for work there was no medical evidence that he was not well enough to take part in such meetings with appropriate adjustments in place and therefore it was reasonable to try and arrange the meetings in question.[93]While Mr Easson understood the necessity of such meetings, and of discussing Unilever’s concerns, which could have saved the claimant’s role in the team, he also recognised the claimant had been upset by the various invitations and that Mr O’Brien’s approach had not improved his situation. To that extent this element of his grievance was also upheld. Mr Easson’s grievance outcome letter dated 9 July 2024[94]On 9 July 2024, Mr Easson wrote to the claimant in the following terms: “I am writing to confirm the outcome of the grievance meeting held on the 19th of June 2024 in the presence of Denise McKechnie, on behalf of the company. The issues/concerns were: 1 You allege that Mr O’Brien victimised and harassed you by taking the decision to subject him to a disciplinary investigation in circumstances 2 You allege that in assuming the role of Disciplinary Investigation inferred that sending emails out with normal working hours is in breach of the Company’s Disciplinary or other Policies. 3 You allege that Mr O’Brien’s decisions as referred to above amounts to an unlawful detriment in breach of Section 45A(1))f) of the 4 You allege that from late April until mid/late May 2024, Mr O’Brien has harassed you by bombarding him with welfare and/or disciplinary investigatory meeting invites in the full knowledge that he was medically unfit to engage in such meetings. Following the meeting, further investigations have been carried out which includes all correspondence between yourself, Sean O’Brien and Simon Weston. After a full investigation and due consideration of the facts, my findings are as follows. For ease of reference, I shall address each point in turn: 1 It is a reasonable management request to ask an employee to attend an informal fact-finding meeting to establish facts. I found no attempt or decision to forward to a formal disciplinary at this stage. Visiting LinkedIn does not amount to evidence of harassment or victimisation. Your absence from work was for stress at work, I believe it would be reasonable to understand what they were to support you in the first instance with an intention to resolve them for you. I also appreciate you are unwell at present, however, as the issues appear to be directly related to the reasons you are absent from work, I feel it was appropriate to arrange a meeting to discuss the concerns. I found no evidence to support this allegation, therefore this point is not substantiated. 2 If emails are sent out of hours no colleague is obliged to answer at that time, as per Avidity email footer “We work flexibly at Avidity. I’m sending this message now because it suits me, please respond when it suits you.” “Outside of the normal working hours.” should be omitted from the factfinding meeting as an allegation as this is not outside an area of concern to McCurrach. Therefore, I substantiate this point of the grievance. 3 You have not been invited to a disciplinary and no disciplinary meeting has been held. You were asked to have a conversation regarding a third-party complaint. I found no evidence to support this allegation, therefore this point is not substantiated. 4 You were initially asked to attend an informal fact-finding meeting to establish facts. Following your absence for work-related stress you were invited to wellbeing meetings to support you. I found the doctors note states you are not fit for work; it does not say you are unable to attend any meetings and you were also given the option to join by VC or by written response as a reasonable adjustment. However, after speaking with you, I can understand how our attempts to support you and gain a greater understanding of your well being have not improved your work-related stress which was not our Intention. Therefore, I partially substantiate this grievance point. In conclusion, I partly substantiate your grievance points as described above. The company will be taking appropriate action in line with our company and disciplinary & grievance policies. I am unable to disclose what this would look like due to matters of confidentiality. You have the right of appeal against my decision, and should you wish to do so, you should write to Helen Sheridan, Customer Director within 7 days giving the full reasons as to why you are dissatisfied with my decision.” Mr O’Brien’s letter to the claimant dated 10 July 2024[95]Following Mr Easson’s decision having been sent to the claimant, Mr O’Brien wrote to the claimant on 10 July 2024 in the following terms: “Dear Paul, On reviewing your latest statement of fitness for work certificate, I note that you have been on sick leave since the 29th of April 2024 due to stress at work. Naturally, we are concerned about you, and I am therefore writing to request your attendance at an informal welfare meeting either on Microsoft Teams, at your home address or elsewhere if you prefer. The purpose of this meeting is to establish the nature and extent of your illness, how long it is likely to be before you are well enough to return to work and what arrangements we might need to take to ensure your safety on your return. We will use the information to inform any decisions or actions we may take in light of your current health status. Our records of this meeting are likely to contain information about you which is classed as ‘special categories of data’ (i.e. information about your health) and data protection laws will apply. We will ensure this data is processed in line with our data protection policy regarding lawful processing. You can read our privacy notice for more information on how and why we use your data and the lawful basis for doing so. Please rest assured that any meeting will be purely informal.”[96]At this point in time Mr O’Brien had not spoken to the claimant since 17 April, and he had been off sick since 29 April with work related stress. He had been told that the grievance had been completed and that he remained the claimant’s line manager for HR issues within the first respondent’s management structure. The claimant had not requested a change of line management. Mr O’Brien felt it important to arrange an informal welfare meeting to assist the claimant to return to work with an appropriate support plan in place. Mr O’Brien had in mind that the claimant may wish, for example, to return on a gradual basis building up his hours over time.[97]The claimant did not respond to Mr O’Brien’s letter of 10 July. He felt ‘gobsmacked’ that the first respondent had decided that Mr O’Brien, against whom his grievance had been upheld, should continue to manage his wellbeing, especially when he was still within the 7-day period to appeal against the grievance outcome. The claimant’s resignation[98]On 15 July 2024 at 22.17, the claimant sent an email to the respondent’s Sarah Copland as follows: “Dear Ms Copland, Notice of resignation I hope this finds you well. After nearly 10 years with the Company it is with a heavy heart that I write to inform you of my decision to resign from my post of Regional Partnership Manager. I wish to resign with notice but I am unsure how much notice I am required to provide in accordance with my contract. Please advise so that my termination date can be determined. If the Company agree to a notice period of 4 weeks, my termination date will be Friday 9th August 2024. Please confirm if this is acceptable to the Company. I have taken the decision to resign because my position has become untenable. I raised multiple serious allegations in my grievance dated 23rd May 2024 and do not consider that these concerns have been properly investigated or handled by the Company. The reasons why I believe my grievance has been mishandled have been detailed in my grievance appeal which was emailed to Helen Sheridan on the 15th July 2024 (11:08). The upset and dismay I experienced over the alleged mishandling of my grievance was further compounded by the company's distressing decision to continue to allocate my welfare to Mr O'Brien who I contend has harassed, bullied and victimised me. In this respect, reference is made to Mr O’Brien’s letter to me dated 10th July 2024 inviting me to attend an informal welfare meeting with him. I am frankly gobsmacked at such a decision in circumstances where aspects of my complaints were upheld against Mr O’Brien and where the grievance process has not yet concluded. I do not consider that the Company has any concerns about my welfare when they place it in the hands of a manager who I allege has bullied, victimised and harassed me. These events have left me in a traumatised position where I no longer feel safe in the McCurrach workplace. I no longer have trust and confidence in the company and their ability or willingness to deal with my serious concerns. I request that my grievance appeal is processed as I feel strongly that there must be accountability for the treatment I have been subjected to. Regrettably I no longer see a path for me to continue within the company for the reasons stated above.[99]The claimant worked his notice and his employment ended on 16 August Grievance appeal[100]In due course, the claimant’s grievance appeal was considered by the respondent’s Asim Muhammad and grievance meetings took place on 8 August and 5 September 2024.[101]In his decision letter dated 20 September 2024, Mr Muhammad agreed with the findings that Mr Easson had made at the first stage of the grievance procedure. Sickness absence recording/Occupational Offsets The claimant’s pay on termination[102]The claimant’s contract of employment provided that – “The Company is entitled at any time during and on termination of your employment to deduct from your salary or from any other sums owed to you by the Company, any sums due to the Company by you and you hereby consent to the making of such deductions”[103]Further, the respondent’s sick pay policy provides as follows: “Company sick pay Company Sick Pay entitlement is calculated on a 52-week rolling period. This means that your company sick pay entitlement will be calculated based on sickness absence used in the previous 52 weeks from the date of each absence. If Company Sick Pay has been exhausted, any additional sickness absence will normally be paid as Statutory Sick Pay (SSP). How much you get paid for sick leave is based on your length of service.”[104]The first respondent’s payroll system uses the term ‘Occupational offsets’ to describe on employee’s pay slips any deductions to their normal pay because of the application of sick pay rules. Such deductions are shown on payslips as ‘Occupational Salary O’ with an accompanying amount.[105]At the material time, that is during the period from the first day of his absence on 28 April 2024 until his last day of service on 16 August 2024, the claimant’s length of service was 9 years. Based on that length of serve, his sick pay entitlement was 13 weeks full Company Sick Pay followed by 13 weeks half pay, subject always to his absences in the previous 52 weeks.[106]Prior to the claimant’s final absence beginning on 28 April 2024 he had, within the relevant rolling 52-week period, had previous absences of 26 days between 27 October and 1 December 2023 and 4 days between 2 and 5 April[107]At the start of his sickness absence on 28 April 2024, his entitlement to full sick pay therefore stood at 35 days before half pay would begin in terms of the respondent’s sick pay policy. That meant that his full sick pay should have expired on 17 June 2024.[108]Other than recording the claimant’s sickness absence on the first respondent’s absence management system, Mr O’Brien was not involved in any decisions taken in relation to the claimant’s pay or sick pay during periods of sickness absence. There is no evidence that he recorded the claimant’s absences inaccurately. The June 2024 overpayment[109]Due to a system/input error, and not because of any failure on Mr O’Brien’s part to record the claimant’s absence accurately, the claimant was paid full pay for the month of June. Whereas he should have been paid the net amount of £2,640.64 gross/ £1,672.95 net, he was in fact paid £2,397.27 net. His overpayment was therefore £967.69 gross/£724.32 net. The July 2024 overpayment[110]Due to the same error, he was also paid full pay for the month of July 2024 – £3,276.56 gross/£2,138.86 net. As he was still only entitled to half pay he should only have been paid £2,215.57 gross/£1,357.41 net. His overpayment for July was therefore £1060.99 gross/£781.45 net. The August 2024 underpayment[111]In August 2024, his last salary up to his termination date of 16 August 2024 he should have been paid £3128.66 gross/£2,003.62 net. Instead, he was paid gross £2383.40 gross/£1271.11 net, which was an underpayment of £745.26 gross/£732.51 net.[112]That underpayment was a result of the first respondent’s pay system having identified the claimant as a leaver and attempted to correct both overpayments retrospectively in his final salary. However, it did not do so to the full extent. The ‘Occupational Offset’ on the claimant’s August payslip[113]The Occupational Offset figure shown on his August payslip as ‘Occupational Salary O - £5370.69’, which the claimant believes he was underpaid, was not in fact deducted at all.[114]Rather, the figure of £5,370.69 was shown on the pay slip as a retrospective system calculation of the sick pay that ought to have been reclaimed because of previous overpayments. However, that sum was not deducted, his actual August sick pay was £2,685.35 and the net underpayment was only £745.26 gross/ £732.51 net. The overall position[115]After the August 2024 underpayment, the overall result was that at the date of termination, the claimant had still been overpaid by £1283.42 gross/£733.26 net.[116]That net sum of £733.26 is still outstanding, despite the first respondent’s attempt to agree a repayment plan with the claimant. The claimant’s questions about his final pay slip[117]On 30 August 2024 the claimant e-mailed the first respondent’s Jenni Kelly with questions about his payslip. That e-mail was also copied to Asim Muhammad and to Sara Copeland, but not to Mr O’Brien.[118]In response, Robert Harris, Lead Payroll Administrator, replied that same day with a detailed breakdown of his final salary, copying Mr O’Brien into his email for information and asking Mr O’Brien to explain to him ‘’why there was so much absence added to Core to be processed in Paul’s final wage for August 2024’’.[119]In response, Mr O’Brien telephoned Mr Harris to discuss his e-mail to him.[120]However, as the claimant had not addressed his 30 August e-mail to Mr O’Brien there was no failure on Mr O’Brien’s part to acknowledge or respond to that e-mail.[121]Otherwise, the claimant continued to correspond with various people within the first respondent’s organisation (not including Mr O’Brien) in relation to his final salary payment, culminating in the first respondent’s Anika Weiss explaining to him that the net result of the input error was that he had been overpaid by £773.26 and inviting him to arrange a repayment plan. Submissions Claimant’s submission[122]At the close of the hearing, the claimant made an oral submission, and the Tribunal also allowed him a further 14 days to provide written submissions if he wished to supplement that submission. He eventually provided those written submissions on 7 January 2026, and these have also been considered fully.[123]In his submission the claimant asserted that he had suffered an intolerable pattern of unacceptable conduct, and that Mr O’Brien’s invitation to a wellbeing meeting after the grievance outcome had been the final straw that caused him to resign.[124]The claimant described himself as a long serving employee who had always demonstrated commitment, but whose workload had extended from reasonable flexibility to ‘excessive, lengthy and expected’.[125]As a result, he had complained to Simon Weston and to Sean O’Brien of excessive working hours, health deterioration, a breach of working time and a risk to the wellbeing of the team. Those disclosures had been repeated in his solicitor’s e-mail to Mr O’Brien on 23 May 2024 and at the grievance meeting on 19 June 2024.[126]He believed he had asked for support in a balanced way, but the respondents’ response had been to control and silence him by subjecting him to an investigation meeting under the disciplinary procedure, which had included an allegation that he had been sending emails outside working hours - an allegation that did not reflect any company policy. He had been asked to attend that disciplinary investigation meeting despite his having submitted fit notes confirming he was unfit to work, which had exacerbated his anxiety.[127]So far as the first respondent’s handling of his grievance was concerned, its findings had been contradictory, some of his complaints had not been dealt with, the conclusions had not matched the evidence, and the decision had lacked transparency. Further, none of the flaws in the grievance procedure had been cured by the appeal which had been a rubberstamp of the decision below and he had no confidence his complaints had been taken seriously. Unfair constructive dismissal[128]The claimant submitted that he had been subjected to a cumulative series of breaches of contract which taken together had amounted to a breach of trust and confidence.• He had been asked to work unreasonable and excessive working hours.• He had been subject to a disciplinary investigation shortly after he had made a protected disclosure.• The respondent had repeatedly insisted on his attending meetings despite his being medically unfit.• Mr O’Brien had been involved in his welfare and disciplinary matters despite Mr O’Brien being the subject of his grievance.• The grievance procedure had been flawed, lacking fairness sufficiency and impartiality.• The grievance appeal had been superficial and had failed to cure any of the original defects.• He had also suffered an unexpected payroll deduction on the termination of his employment.• Overall, there had been a failure to provide support to him following his protected disclosure and his trust and confidence had been destroyed.[129]In the claimant’s submission, Mr O’Brien’s letter of 13 May 2024 had been unreasonable because it sought to investigate conduct, namely sending an email outside of working hours that was not in breach of any of the respondent’s policies. This had been in response to his criticising the working patterns that he had been asked to take on and strongly indicated retaliation for his having raised concerns.[130]Subsequently it had been unfair that Mr O’Brien should continue to manage his welfare when the grievance had been partially upheld against him and when that grievance decision was still subject to appeal. For that reason, Mr O’Brien’s letter of 10 July 2024 had been the final straw. It had shown the first respondent had not accepted or understood his concerns, that his grievance had had no meaningful effect, and that his health condition was not being respected. As a result, the employment relationship had irretrievably broken down. Alleged detriments[131]In relation to his detriment complaints, his e-mail of 28 April had set out several protected disclosures in relation to excessive hours, working time concerns, health and safety risks to himself and his colleagues, and his deteriorating mental and physical health. His concerns were genuine and reasonable and had been raised in the public interest.[132]His belief was that the detriments suffered as a result had been the subsequent disciplinary investigation, the repeated insistence on his attendance at meetings during his sickness absence, the failure to engage with his concerns in good faith and the flawed grievance and grievance appeal outcomes. All of that had created an environment of pressure and mistrust.[133]The respondent had acted without reasonable proper cause including imposing a disciplinary investigation without justification. It had disregarded medical evidence and failed to investigate his grievances fairly and impartially. The timing and the nature of the detriments he had suffered had shown that the disclosures he had made in the email of 28 April 2024 had materially influenced the respondent’s actions.[134]The claimant also believed that his attempts to understand the large apparent deduction from his pay had been ignored and gone unexplained. He believed that had also been because of his having made protected disclosures and having complained about his treatment under the Working Time Regulations. Unauthorised deduction from wages[135]In relation to his unlawful deduction of wages claim, he believed that he had suffered an unlawful deduction, which the first respondent had not explained. The first respondent’s figures had been unreliable. Even if a deduction had been caused by an automatic, administrative or software error it was still unlawful.[136]The claimant also submitted that the respondent’s witnesses had not been credible or reliable in their evidence. They had failed to recall central events as to why decisions were taken, how the grievance decision was reached or if medical evidence had ever been considered at all. They had been shown to have had selective memories and had been defensive and evasive. Their oral evidence had been unsupported by the documents and had been contradictory. The claimant submitted that his own evidence had been consistent, proportionate and reliable. It had aligned with the emails and other correspondence within the bundle. He had made concessions where appropriate. Submissions for both respondents[137]On both respondents’ behalf, Mr Mahmood submitted that the claimant’s complaints ought to be dismissed in their entirety. At the outset of his submission, he explained that the respondents’ belief was that at the time of the incidents that led to the claimant’s resignation, he had already started to support a friend in a business that he was now currently working full time on. His intention to leave and work with his friend in his business had been the true reason for his resignation. The reality was that the claimant had resigned because he had a new job lined up and because Simon Weston had been criticising his poor performance.[138]The response to the claimant’s email of 28 April 2024 had been proportionate in the circumstances because his email to Mr Weston had been inappropriate. It was important to investigate the situation because the client had complained and asked that the claimant be removed from the contract. The investigation meeting was not a disciplinary investigation. Rather, Mr O’Brien had simply sought to fact find in relation to the customer complaint and the reasons for the claimant’s absence, which appeared to be linked. The purpose of the invitation to the investigation meeting was clear on the face of the correspondence.[139]Further, there had been no failure on Mr Easson’s part to consider the claimant’s grievances. That was evident because he had upheld in part the claimant’s complaint that it was inappropriate to investigate his having sent emails outside of normal working hours when that was not truly an area of concern for the respondent.[140]Mr Mahmood also submitted that it had not been unreasonable for Mr O’Brien to attempt to resume contact with the claimant to discuss his wellbeing after the grievance decision had been made by Mr Easson. Mr O’Brien was his line manager at the time and the contact made had been to support the claimant’s wellbeing. The claimant had not requested a change of line management and nor had any findings been made by Mr Easson that would have justified a change of existing management structure.[141]In the circumstances, there was no conduct on either respondent’s part that, looked at objectively, was calculated or likely to seriously damage or destroy the trust and confidence between the claimant and the respondent.[142]Further, the respondent denied that the claimant’s email of 28 April 2024 contained any qualifying disclosures in accordance with section 43B of the Employment Rights Act 1996. He had failed to identify any alleged breach of any legal obligation on the respondent’s part or that he held any reasonable belief that the respondent had breached any legal obligation falling within the remit of section 47B, or that his complaints were a matter of public interest.[143]It was also denied that the claimant had made a complaint that the respondent had infringed his rights under the Working Time Regulations. He had failed to provide any clear rationale behind any breach other than stating he was working longer days, longer than his contractual hours, which he also accepted having agreed some flexibility to. He had also opted out of the Working Time Regulations. There was no evidence that he had made any allegation in relation to the breach of the Working Time Regulations either in his 28 April 2024 email or otherwise.[144]In any event, the invitation to the investigation meeting was because its important client Unilever had requested that the claimant be removed from their contract and not because of the 28 April e-mail. It was important that this important customer’s concern should be resolved, and that the reasons for the claimant’s stress at work be discussed.[145]There had been no disciplinary investigation proposed, but only an investigation for fact finding purposes. There had been no detriment in response to the claimant’s 28 April e-mail, as alleged.[146]Further, there had been no “bombarding” of the claimant with emails. The contact that had been made had been proportionate in the circumstances. It had been intended to maintain contact with the claimant during his sickness absence and to arrange a fact-finding meeting that had reasonably been determined as important to deal with reasonably quickly. Although the claimant was unfit for his normal duties there was no medical evidence that he was unfit to attend any of the meetings he had been invited to.[147]There had been no failure on the part of Mr Easson in his handling of the claimant’s grievance. Mr Easson’s treatment of the grievance was not at all affected by the fact that the claimant had raised concerns in his email of 28 April 2024.[148]In relation to pay, the respondent’s treatment of the claimant’s salary had been in line with its pay policy. The overpayments he had received in June and July and the underpayment he had received in August were unfortunate but were due to system errors. Mr O’Brien had simply reported to HR the duration of the claimant’s sickness absence and there had been no act or omission on his part that had impacted the claimant’s salary. Further, the first respondent had replied to the claimant in relation to the queries that he had raised about his pay after the termination of his employment and there had been no detriment in that regard.[149]In respect of the asserted unlawful deduction of wages, the evidence showed that the claimant’s pay had been incorrect but only because he had overall been paid contractual sick pay that he was not entitled to. The alleged unlawful shortfall of £5,371, which had been shown on the August 2024 payslip as ‘Occupational Salary O’ was not a deduction at all and the net result was that the claimant had been overpaid. Discussion and decision[150]Having made its findings in fact and having considered the parties submissions, the Tribunal will deal with the agreed disputed issues in turn. Did R1’s letter to the C dated 13 May 24 invite him to an investigation meeting under R1’s disciplinary procedures?[151]It was clear to the Tribunal from the terms of the 13 May 2024 that no decision had been taken to invoke the disciplinary procedure when this letter was sent. The letter said in plain terms that - “You are required to attend an investigation meeting to be held on 14 May we may decide that there are no grounds for this.”[152]The Tribunal accepted Mr O’Brien’s evidence that the meeting was intended to be a fact-finding investigation meeting and that at the point when it was sent the question of whether there would in future be a disciplinary investigation had been left open depending on the outcome of the fact finding.[153]The Tribunal also accepted Mr O’Brien’s evidence that his intention from the outset was to resolve Unilever’s complaint and keep the claimant in post. However, to achieve that he firstly needed to discuss with the claimant the emails that had caused Mr Waddington to react as he had done.[154]The Tribunal recognised the invidious position that Mr O’Brien found himself in. On one hand the claimant was unfit to work through work related stress, and on the other hand, a major customer was applying pressure to remove him from its contract, apparently because of the same issues that had caused the claimant’s work-related stress. In those circumstances Mr O’Brien’s approach, which was to fact find and not to hold a disciplinary investigation, was justified and proportionate. Did R2 infer in his 13th May 24 letter to the Claimant that he had committed an act of misconduct by sending emails outside of normal working hours?[155]Having found that the 13 May 2024 letter was not an invite to a disciplinary investigation meeting the Tribunal also accepted Mr O’Brien’s evidence that he was aware that the first respondent’s employees were permitted to work flexibly and that he did not consider the claimant having allegedly sent e-mails outside of normal working hours to be an act of misconduct.[156]Rather, his concern was that the claimant had, in quick succession, late at night and in the early hours of the morning, sent a series of e-mails about his working conditions and their impact on his health and wellbeing only a short time after he had last spoken to the claimant and had found him to have been ‘full of the joys’, with no complaints whatsoever about his working conditions, save for a concern that Mr Weston’s proposed performance review period coincided with two weeks of his already booked annual leave.[157]In the circumstances, taking account of his intention and the plain wording of the letter, Mr O’Brien did not imply that by sending emails outside of working hours the claimant had committed misconduct. Did R2’s involvement in the investigation for the reasons stated in para 7 ET1 PA deny the Claimant the right to a fair and impartial disciplinary process?[158]The ‘reasons’ stated in paragraph of the claimant’s ET1 relate to Mr O’Brien’s alleged lack of impartiality as he was a recipient of the e-mails in question. Mr O’Brien was indeed the recipient of the e-mails.[159]However, the proposed meeting was not a meeting in terms of the disciplinary process but rather a fact-finding meeting to allow him to understand the reasons for the claimant’s e-mails, which related to the claimant’s welfare and the first respondent’s relationship with an important customer – both of which fell within Mr O’Brien’s responsibility. In those circumstances, it was entirely appropriate for Mr O'Brien to conduct such a fact-finding meeting.[160]Further, as there was no disciplinary process in the first place there was no denial of fairness and impartiality as alleged. Did DE fail to consider the C’s following complaints when handling his grievance?• SO had falsely inferred that sending the emails out with normal working hours was in breach of R1’s Disciplinary Procedures or other Policies.• SO’s decisions to commence an investigation which could result in a disciplinary hearing amounted to an unlawful detriment in breach of Section 45A(1)(f) of the Employment Rights Act 1996.[161]It is helpful here to set out the relevant parts of the grievance and of Mr Easson’s decision. The relevant parts are as follows – “1 You allege that Mr O’Brien victimised and harassed you by taking the decision to subject him to a disciplinary investigation in circumstances 2 You allege that in assuming the role of Disciplinary Investigation inferred that sending emails out with normal working hours is in breach of the Company’s Disciplinary or other Policies. 3 You allege that Mr O’Brien’s decisions as referred to above amounts to an unlawful detriment in breach of Section 45A(1))f) of the Employment Rights Act 1996.”[162]Mr Easson’s findings were as follows 2 If emails are sent out of hours no colleague is obliged to answer at that time, as per Avidity email footer “We work flexibly at Avidity. I’m sending this message now because it suits me, please respond when it suits you.” “Outside of the normal working hours.” should be omitted from the factfinding meeting as an allegation as this is not outside an area of concern to McCurrach. Therefore, I substantiate this point of the grievance. 3 You have not been invited to a disciplinary and no disciplinary meeting has been held. You were asked to have a conversation regarding a third-party complaint. I found no evidence to support this allegation, therefore this point is not substantiated.”[163]Mr Easson’s decision clearly shows that he considered both allegations and addressed them in his findings.[164]In the first place, he found that the reference to the e-mails having been sent outside working hours was inappropriate and should not have been included. He upheld the claimant’s grievance in that regard. Although Mr Easson made no express finding that the allegation had been falsely made there can be no doubt that he considered, and indeed upheld, this part of the grievance.[165]In the second place, his finding in relation to the allegation that the claimant had suffered a detriment because he had alleged an infringement of a right under the Working Time Regulations 1998 was plainly made on the basis that his understanding was that the essential element of this part of the grievance was that the alleged detriment was his being made subject to a disciplinary investigation where there were no grounds to do and where one of the allegations was plainly false.[166]Having concluded, as he did, that there had been no disciplinary investigation, and therefore no detriment, there was no need for him to say any more than that. However, once again, there can be no doubt that he considered this part of the grievance. Did DE fail to make any findings in relation to the following complaint in the C’s grievance? SO victimised and harassed him by taking the decision to subject him to a disciplinary investigation in circumstances where there were no grounds to do so.[167]Once again, it is helpful to look again at Mr Easson’s decision letter. In response to that part of the grievance, he makes the following finding -• “It is a reasonable management request to ask an employee to attend an informal fact-finding meeting to establish facts. I found no attempt or decision to forward to a formal disciplinary at this stage.• Visiting LinkedIn does not amount to evidence of harassment or victimisation.• Your absence from work was for stress at work, I believe it would be reasonable to understand what they were to support you in the first instance with an intention to resolve them for you. I also appreciate you are unwell at present, however, as the issues appear to be directly related to the reasons you are absent from work, I feel it was appropriate to arrange a meeting to discuss the concerns.• I found no evidence to support this allegation, therefore this point is not substantiated.”[168]Mr Easson has clearly considered this allegation and addressed it in his findings, the key part of which was that there had been no disciplinary investigation at all.[169]Further he found that it was reasonable in all the circumstances to require the claimant to attend a fact-finding meeting for the reasons he set out. Was DE’s findings in relation to complaint i) in the C’s grievance contradicted by the documentary evidence?[170]The Tribunal finds that Mr Easson’s findings that there was no disciplinary investigation were entirely consistent with the documentary evidence having regard to its clear terms, which were as follows and stated in plain terms that the meeting would be an ‘investigation’ meeting, which would then determine whether a formal disciplinary procedure would follow – “You are required to attend an investigation meeting to be held on 14 May we may decide that there are no grounds for this.” Did DE’s outcome letter fail to make clear what aspects of complaint v) had been substantiated?[171]This refers to the following part of the grievance letter, as understood by Mr Easson – “You allege that from late April until mid/late May 2024, Mr O’Brien has harassed you by bombarding him with welfare and/or disciplinary investigatory meeting invites in the full knowledge that he was medically unfit to engage in such meeting.”[172]Mr Easson’s finding was as follows – “You were initially asked to attend an informal fact-finding meeting to establish facts. Following your absence for work-related stress you were invited to wellbeing meetings to support you. I found the doctor’s note states you are not fit for work; it does not say you are unable to attend any meetings, and you were also given the option to join by VC or by written response as a reasonable adjustment. However, after speaking with you, I can understand how our attempts to support you and gain a greater understanding of your well-being have not improved your work-related stress which was not our Intention. Therefore, I partially substantiate this grievance point.”[173]The Tribunal finds that Mr Easson’s decision letter made clear what aspects of this part of the grievance had been upheld. The essence of this part of the grievance was that Mr O’Brien had ‘bombarded’ the claimant with requests to attend meetings when he was medically unfit to do so. Mr Easson has fully and properly considered this allegation. He has made a finding, which he was entitled to make, that Mr O’Brien had no evidence before him that the claimant was medically unfit to attend meetings, which addresses the main thrust of that allegation. However, he has also reflected on the impact on the claimant of that repeated contact when he was unfit to work, and to that extent has upheld that part of the grievance. There is no doubt that he has made clear what part of that complaint has been substantiated. Did R1 permit R2 to retain responsibility for the Claimant’s welfare (as confirmed in R2’s letter to the Claimant dated 10th July 2024 inviting him to attend a welfare meeting with him)[174]It is not in dispute that that Mr O’Brien was permitted to retain responsibility for the claimant’s welfare after Mr Easson issued his grievance decision letter. Did R2 take the decision at viii) above in the knowledge of the Claimant’s grievance had been upheld and or the grievance process had not been exhausted and or had included serious complaints of bullying and harassment against R2?[175]It is accepted that Mr O’Brien wrote to the claimant on 10 July 2024, inviting him to a welfare meeting. At the time he wrote this letter his genuine belief was that the claimant’s grievance had concluded, and he had received no instruction to step aside and allow another manager to manage the claimant’s welfare and his return to work. Nor had the claimant requested that he report to another line manager.[176]There was nothing in Mr Easson’s findings that should have caused the first respondent to appoint another manager to replace Mr O’Brien in managing the claimant’s welfare. Mr Easson had rejected any allegation that Mr O’Brien had harassed the claimant by subjecting him to a discipline investigation or bombarding him with meeting invites.[177]Mr Easson had only upheld his grievance to the extent that he found that the out of office hours emails should not have been the subject of an investigation and that Mr O’Brien’s attempts to support and gain a greater understanding of the claimant’s wellbeing had ‘’not improved’’ his work-related stress, which had not been the first respondent’s intention. Those findings did not justify Mr O’Brien being replaced by another manager to oversee the claimant’s return to work.[178]At this point in time Mr O’Brien was conscious that he had not spoken to the claimant since 17 April, and he had been off sick since 29 April with work related stress. Mr O’Brien remained the claimant’s line manager for HR issues within the first respondent’s management structure. Mr O’Brien also remained the first respondent’s main contact with its major customer, Unilever. Mr O’Brien felt it important to arrange an informal welfare meeting to assist the claimant to return to work with an appropriate support plan in place. In all the circumstances, and standing the grievance findings, it was reasonable that he should do so.[179]Having reached these conclusions in relation to the disputed issues relevant to the unfair constructive dismissal claim, the Tribunal will deal with the following issues together, as follows - Did the Respondent’s conduct above if proved breach the implied term of trust and confidence? The Tribunal will need to decide: i. Whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and ii. Whether it had reasonable and proper cause for doing so Did the Claimant resign in response to the alleged breach or for some other unconnected reason? Did the Claimant affirm the contract? Did the conduct consist of a series of acts or incidents (the Claimant contends that it does) What was the alleged final straw? (See para 26 of the ET1 Paper Apart) Taken cumulatively would the conduct amount to a breach of the implied term? Was the Claimant’s dismissal unfair in accordance with section 98 Employment Rights Act 1996?[180]The implied term of trust and confidence, as established in Malik v BBCI 1997 IRLR 462 is as follows – ‘’The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.''[181]The Tribunal has concluded that in all the circumstances the respondents’ conduct as alleged above is not proved. Considered objectively, the respondents did not, without reasonable and proper cause, behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the first respondent.[182]In the first place, the second respondent was reasonably entitled to invite the claimant to a fact-finding investigation in the light of the claimant’s workrelated absence and the existence of a customer’s request to move him from its contract for apparently the same reasons that had caused his absence. While the claimant had provided fit notes to show he was unfit to work there was no medical reason not to require him to attend welfare meetings or the proposed investigation meeting.[183]That proposed investigation meeting was very clearly a fact-finding meeting and not a disciplinary investigation meeting. Mr O’Brien’s intention was to attempt to save the claimant’s relationship with Unilever but firstly he needed to speak to him to investigate the emails that had resulted in Mr Warrington’s request to take him off the contract, and that also appeared to be related to his absence.[184]In those circumstances, it was proportionate to ask him to attend that meeting, albeit it was not reasonable to include in that meeting any concern about the timing of his e-mails, which were not contrary to the first respondent’s rules. Indeed, the timings of the e-mails were consistent with the first respondent’s admittedly flexible approach to the sending and responding of emails. However, that inappropriate reference to the timing of the e-mails did not of itself amount to conduct that, considered objectively, was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the first respondent.[185]The last time the claimant and Mr O’Brien had spoken prior to the claimant’s resignation was on 17 April 2024 in a telephone conversation. During that conversation the claimant had raised none of the issues that subsequently became the subjects of his emails to Mr Weston and Mr O’Brien. None of the welfare or investigation meetings proposed by Mr O’Brien ever took place. That the claimant chose not to speak to Mr O’Brien at all was possibly understandable, but it was ultimately unhelpful for Mr O’Brien in terms of his ability to manage a difficult situation, balancing his obligations towards the claimant and his responsibility to manage an important client who had raised a complaint against the claimant.[186]Furthermore, Mr Easson gave full and proper consideration to all parts of the claimant’s grievance and provided an appropriate explanation for his findings, which to an extent upheld the claimant’s grievance, albeit not to the extent that the first respondent was required to remove Mr O’Brien from his line management.[187]The Tribunal accepts that the claimant resigned because of the cumulative events in question and that the alleged last straw was Mr O’Brien’s letter of 10 July. There was no evidence that he resigned for any other reason, such as to allow him to set up in business with a friend, as was alleged by the first respondent.[188]However, there was no breach of the implied term of trust and confidence. In all the circumstances the claimant was not unfairly constructively dismissed, and his complaint is therefore dismissed. S47B detriment – Protected disclosure detriment Did the Claimant make a qualifying disclosure(s) under Section 43B (1) ERA 1996 in i) his email to the Respondents dated 28th April 2024 ii) his Solicitor’s email to the Respondents dated 23rd May 2024 and iii) at the grievance meeting on 19th June 2024? 11 Did the Claimant have a reasonable belief that the information tended to show a breach of Sections 43B(1) (b) and/or (d) of the ERA 1996 namely that: i) A person had failed, was failing or was likely to fail to comply with any legal obligation, and or ii) The health or safety of any individual had been, was being or was likely to be endangered. Was the Claimant’s belief reasonably held? Did the Claimant have a reasonable belief that the disclosures were made in the public interest? Was the Claimant’s belief reasonable held?[189]In his e-mail of 28 April, the claimant, so far as relevant to these questions, said as follows – Health; Quite aside from having severely restricted time to complete regular physical activities due to workload and expectation especially in terms of being required to be flexibility in working hours (not that any of that should be disagreed in terms of this email), I have previously raised my serious concerns around burnout, mental fatigue and ill health of myself and the team based on being a high performing, high intensity team subject to frequently changing working hours, long distance travel and, above acceptable number of ad-hoc prorates; at no point have these concerns been addressed, I even felt they were ignored when raised late last year. Mental health is not just a very visible topic these days, it is also an issue close to me personally (given my mother condition of which leadership are well aware); I find this to be one of the most concerning points within this email. … Working hours; I have touched on this topic several times throughout this email and numerous connects, but I do believe it deserves its own point. When recruited, we were provided standard contracted hours of 10am-6pm, some flexibility with that was also discussed and accepted given the nature of the business we undertake; however this “some” has continued to spiral at an alarming rate to a position where I as an individual and my Regional Partnership Manager peers simply no longer see the agreed standard and are just assumed to accept the expectation that we will work whenever and for however long is expected by leadership even if that means starting at 8am and working through until 11pm or later, while I am more than aware and have in fact used time in lieu recovered from this overtime it strikes me this has become a very unhealthy work/life balance far outside the boundaries initially implied… after all reclaiming time at a later date serves only to reduce available time at that later time and doesn’t reduce the overall workload.[190]In Williams v Brown UKEAT/0044/19, the EAT found as follows - “It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure was made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (A) to (F). Fifthly, if the worker does hold such a belief, it must be reasonably held.” On a fair reading of that e-mail, it contains all the necessary elements and is therefore a protected disclosure, according to the statutory test.• Information is disclosed in relation to workload, working conditions and health impact on the claimant and his colleagues, accompanied by an assertion that previous concerns have been ignored.• such a disclosure is plainly in the public interest because it concerns the impact of working conditions on a team of employees whose main responsibilities involve driving around the country at all hours of the day visiting customers.• his concerns are reasonably held because they relate to his own and his colleagues’ working conditions.• he genuinely believed that the working arrangements required to service Unilever’s customers were likely to endanger the health and safety of himself and his team members and, potentially, other road users.• finally, that belief was reasonably held having regard to his own lived experience of the demands of the role, the comments he had received from colleagues, and its impact on his own health and well-being.[191]However, in the claimant’s solicitor’s letter of 23 May 2024, the alleged detriment referred to there was said to be because of the claimant having complained about an alleged infringement of his rights in terms of the Working Time Regulations 1988. There was therefore no repeat of the earlier disclosure or any fresh disclosure.[192]Further, in the grievance meeting on 19 June the claimant once again only referred to an alleged infringement of his rights in terms of the Working Time Regulations 1988. There was therefore no repeat of the earlier disclosure or any fresh disclosure. Was the Claimant subjected to any of the alleged detriments set out in paragraph 24 of the ET1 Paper Apart. Namely the following: i) R2’s decision to subject the Claimant to a disciplinary investigation process regarding the emails. (Detriment 1)[193]There was no disciplinary investigation and therefore no detriment as alleged. In any event the Tribunal is satisfied that Mr O’Brien sought to arrange that fact-finding investigation because of Unilever’s request to remove him from the contract and because of his concerns for the claimant’s health, and not because of the claimant’s disclosure. ii) R2’s assertion that the Claimant may have breached R1’s disciplinary policies or other procedures because of the time the emails were sent (Detriment 2)[194]Mr O’Brien did not assert that the claimant may have breached the first respondent’s disciplinary or other policy by sending emails outside working hours and there was therefore no detriment as alleged. iii) R2’s conduct in bombarding the Claimant in late April – late May 2024 with numerous requests to attend welfare and/or disciplinary investigation meetings in the full knowledge that he was medically unfit to do so. (Detriment 3)[195]It was reasonable and appropriate, in circumstances where there was no medical evidence that the claimant was unfit to attend welfare or investigation meetings, for Mr O’Brien to request that the claimant attend such meetings, especially where the cause of his work related absence appeared to be the same reason that Unilever wanted him removed from the contract and it was reasonable to try to resolve both issues together if at all possible. However, the first respondent has already conceded that Mr O’Brien’s approach had ‘’not improved’’ his work-related stress and to that extent upheld his grievance. In those circumstances the claimant did suffer a detriment because of Mr O’Brien’s approach. iv) DE’s mishandling of the Claimant’s grievance for the reasons stated at paragraphs 13 – 16 above. (Detriment 4).[196]The Tribunal has found that Mr Easson did not mishandle the grievance. v) R2’s decision to input occupational offsets into Core HR, which resulted in shortfalls to the Claimant’s final salary. (Detriment 5).[197]The Tribunal accepted Mr O’Brien’s evidence that his only interaction with the first respondent’s pay system was to input accurately the claimant’s absence dates and that the subsequent pay errors were system/input related and not because of anything Mr O’Brien did or failed to do. vi) R2’s failure to acknowledge or respond to the Claimant’s email to him dated 30th August 2024 seeking an explanation for the deductions to his final salary. (Detriment 6).[198]Standing the terms of the claimant’s e-mail and the first respondent’s pay group’s reply to him, it was not incumbent on Mr O’Brien to respond to or acknowledge the claimant’s e-mail at all. If the answer to 15 above is yes, did the making of any of the protected disclosures materially influence the Respondent’s actions in subjecting the Claimant to the detriments?[199]The Tribunal has concluded that the claimant was subjected to only one of the alleged detriments. It is however satisfied that Mr O’Brien’s approach to his attempts to arrange meetings with the claimant was because of his desire to resolve as soon as possible an urgent client complaint and to understand the reason for the claimant’s absence from work, which appeared to be related to that complaint, and to support him. The Tribunal is therefore satisfied that Mr O’Brien’s approach to his attempts to arrange meetings was not influenced at all by the fact that the claimant had made a protected disclosure in his e-mail of 28 April 2024. S45A(1) (f) of ERA 1996 – Working time cases Did the Claimant allege that the employer had infringed a right under the Working time regulations in an email dated 28 April 2024 or through his solicitor on 23 May 2024?[200]On a fair reading of the claimant’s 28 April 2024 and his solicitor’s e-mail of 23 May, the claimant did allege, in good faith, that the first respondent and infringed his rights in terms of the Working Time Regulations 1988 Did the Respondents subject the Claimant to the detriments set out in paragraph 24 of the ET1 Paper Apart on the grounds that he alleged an infringement of his rights under the 1998 Regulations?[201]In this regard the claimant relies on the same asserted detriments that he alternatively claims he was subjected to because he had made a protected disclosure. For the same reasons set out above in relation to the protected disclosure claim, the Tribunal rejects the claimant’s allegations that he suffered any detriment, save for that detriment conceded by the first respondent in relation to Mr O’Brien’s approach to his attempts to arrange meetings with the claimant.[202]The Tribunal is however satisfied that Mr O’Brien’s approach to his attempts to arrange meetings with the claimant was because of his desire to resolve as soon as possible an urgent client complaint and to understand the reason for the claimant’s absence from work, which appeared to be related to that complaint, and to support him.[203]The Tribunal is therefore satisfied that Mr O’Brien’s approach was not influenced at all by the fact that the claimant had alleged that his rights in terms of the Working Time Regulations 1988 had been infringed.[204]If either respondent had been upset by the claimant’s emails to Mr Weston and Mr O’Brien, they arguably had good reason to punish him for those by agreeing to Mr Waddington’s request to remove him from the contract without further ado. Yet they did not do so. Rather they set out to obtain the claimant’s comments first, in circumstances where some employers may well have simply given in to such a request from an important client without speaking to the employee concerned. The Tribunal finds this measured approach to be persuasive evidence that they approached this issue proportionately and that they did not therefore subject the claimant to any detriment because of the content of his emails. S13 Employment Rights Act 1996 – Unlawful deduction of wages Were the wages paid to the Claimant in June, July & August 2024 less than the wages he should have been paid?[205]The claimant was overpaid in June by £724.32 net and in July 2024 by £781.4 net and underpaid by £745.26 gross/ £732.51 net in August 2024. Was there a deduction required or authorised by statute?[206]The claimant’s August underpayment was authorised by his contract of employment and by section 14(1) of the Employment Rights Act as it was made to correct an earlier overpayment of wages. Was the £5,371 gross shortfall on the Claimant’s salary an illegal deduction from wages in breach of Section 13 of the Employment Rights Act 1996?[207]There was no such shortfall in the claimant’s August 2024 salary. The shortfall was £745.26 gross/ £732.51 net, which was lawfully deducted.[208]For the foregoing reasons the claimant’s complaints are all dismissed.