Case No 4109137/2018Venue GlasgowHearing 29 November 2019
Between
Mr P BurnsClaimantEntcorp UK LimitedRespondent
Before
Employment Judge David HoeyMr T Wilkinson (instructed by Counsel) for respondentDate 21 June 2019
JUDGMENT
The Respondent’s application to strike out the claim because it has no reasonable prospects of success fails. The Respondent’s application for the Tribunal to issue a deposit order because there are little reasonable prospects of success fails. E.T. Z4 (WR)
REASONS
[1]This case called as a Preliminary Hearing to determine two issues that had been raised by the Respondent – whether the claim for constructive unfair dismissal had reasonable prospects of success and (in the alternative) whether a deposit order should be issued. Both parties were represented by Counsel. The Claimant was in attendance for part of the hearing and an agreed bundle of productions had been produced running to some 110 pages.[2]An initial issue that had arisen was whether or not evidence would be led to determine the issues. The Respondent’s position was that in their application to the Tribunal they had identified the preliminary issue, which was whether or not the reason for the Claimant’s resignation was connected to the alleged fundamental breach and that this was a point that could be determined by the leading of evidence, namely the Claimant leading evidence as to the reason for his resignation and being subject to cross examination.[3]The Claimant’s position was that before evidence could be led there required to be clear and robust orders from the Tribunal that set out the parameters of the evidence. Further it ought to be clear what facts were agreed. It was important to ensure that the context of the Claimant’s evidence was set out. To elicit the evidence from the Claimant to determine the preliminary issue, more than simply asking the reason for his resignation would be needed (in Ms Bennie’s view). The Claimant’s position was that there was a sequence of events that caused him to resign and this would require to be led in evidence. The Claimant’s position was that no evidence should be led and the hearing should proceed by submissions only.[4]The Respondent’s position was that the application that had been made had contained clear reference to oral and written evidence being required and the Notice of Hearing had made it clear that parties should ensure relevant witnesses were in attendance.[5]In any event it transpired that the Claimant required to attend an urgent hospital appointment around 30 minutes following the conclusion of the submissions. Counsel for the Respondent had indicated that cross examination would take at least that length of time. It was not therefore going to be possible to hear evidence in the circumstances.[6]After a short adjournment, the Respondent’s counsel indicated that the Respondent wished to proceed by submissions based upon the pleadings and productions. The Claimant’s counsel confirmed that there were no issues in connection with the productions which could be taken as authentic. Issue to be determined[7]The issues to be determined were in sharp focus: 1. Should the claim be struck out because it has no reasonable prospects of success (the reason for the claimant’s resignation being in no way connected to any alleged breach of contract)? 2. Should a deposit order be issued because the claim has little reasonable prospects of success for the above reasons? 3. If so, how much should the deposit be? Findings in Fact[8]I am able to make the following findings in fact from the productions that were referred to and given the agreement that existed between the parties. These are findings in fact that are relevant to the two preliminary issues only. As no evidence was led from the Claimant (or any other person) these findings do not bind any subsequent Tribunal which hears evidence from persons who can speak to the documents. The findings are therefore only for the purposes of determining the above preliminary issues.[9]The respondent was undertaking a restructuring exercise from around November 2017. A number of roles were affected, including the claimant’s.[10]On 24 January 2018 the Claimant agreed to attend a telephone interview with another company for another job.[11]In an email dated 25 January 2018 Mr Bryans (a Respondent employee) advises another employee of the Respondent that the Claimant had agreed to be redeployed into another role.[12]On 2 March 2018 the Claimant is asked whether he had resigned. This was because the Respondent had received a reference request for their “exemployee” (the Claimant). The Claimant replied stating that he was “just about to send” an email.[13]On 2 March 2018 the Claimant sends an email to the Respondent making a “formal request to be made redundant”. The email sets out the Claimant’s concerns that led him to make this request. The email suggests that the process that had been undertaken by the Respondent (which had been ongoing in November 2017) was unfair and unreasonable[14]On 2 March 2018 the Claimant signs a contract of employment with his new employer stating, in an email of that date “I am looking forward to joining NGA HR” (the new employer).[15]By email of 7 March 2018 the Claimant advised the Respondent that following the response to his request to be “made redundant” he was in the process of sending his resignation letter. He suggested a severance package.[16]On 9 March 2018 the Claimant writes to the Respondent formally resigning “with immediate effect”. That letter states that he had “no choice” “in light of my recent experiences regarding a fundamental breach of contract and breach of trust and confidence”.[17]On 9 March 2018 the Claimant raised a grievance. The covering email stated that he considered 4 points (and the grievance details) to amount to a fundamental breach of contract that led to him resigning with immediate effect. That grievance ran to 13 pages. The grievance stated that it was “based on the following concerns”: 1. Calculated effort by the Business (EMEA Digital Sales) to engineer a desired outcome that was neither fair nor reasonable 2. Inappropriate action and comments made by senior management that have caused the claimant to feel harassment in the form of bias towards age stress and anxiety 3. Territory alignment that is unfair and unreasonable 4. Potential performance management due to territory alignment making his position untenable and forcing him to resign from his job[18]The claimant maintained in his grievance that the outcome had been predetermined. He refers to a meeting on 27 November 2017 at which he alleges he was told he would not be successful in the selection process. He alleges that his final consultation meeting was cancelled. As at 9 March 2018 the only communication he said he had received was a change of job role notification and he had not received any paperwork regarding his appeal or redeployment. He says he verbally agreed to redeployment.[19]At paragraph 8 of the grievance he says: “Had I been provided at this time (January 2018) with the information and data now in my possession, I would have accepted redundancy actively pursuing other career opportunities.”[20]The Claimant started his new employment on 12 March 2018.[21]In the Paper Apart to the Claim Form it is stated that: “7. The Claimant raised a grievance about the subsequent events that led to the Claimant resigning his position with the Respondent. A copy of the grievance is attached which narrates what the Claimant felt he was left with no option other than to resign. 8. It is the Claimant’s position that he had lost all trust and confidence in the Respondent given the manner in which he had been treated (as set out in paragraphs 3 to 6 of the paper apart and the Claimant (sic) grievance). The Claimant concluded that he had no option other than to resign with immediate effect which he did by letter of 9th March 2018. In all the circumstances the Claimant is of the view that he has been unfairly constructively dismissed from his position.”[22]The Claimant left the new employment in October 2018 and is presently unemployed. He was not in receipt of benefits and was seeking new employment. He lives with his wife who retired for medical reasons and the only income was his wife’s pension which was around £900 a month. Monthly outgoings amounted to £2500.
The law
[23]In order to claim constructive dismissal, a Claimant needs to show that there was a fundamental breach of contract, which was connected to the Claimant’s resignation (and there is no unreasonable delay in resigning). The focus in this hearing was on the reason for the Claimant’s resignation. In deciding the reason for a Claimant’s resignation in a constructive dismissal case, the Tribunal must consider whether the repudiatory breach of contract had played a part in the resignation. It did not need to be the sole, major or main cause: Wright v Ayrshire Council 2014 ICR 77. Thus the fact that there are other reasons for the resignation does not, by itself, mean that the claim could not succeed.[24]Rule 37 sets out the test in respect of strike out. It states that (amongst other things) where a claim has no reasonable prospects of success the Tribunal may strike the claim out. This has been considered in a number of authorities which emphasise the 2 stage process that is required and the Tribunal’s discretion. The authorities include Hasan v Tesco UKEAT/98/16 and Chindove v Morrisons UKEAT/76/17.[25]Rule 39 allows a Tribunal to order that a deposit be paid where a claim has “little reasonable prospect of success”. Respondent’s submissions[26]Mr Wilkinson’s began by focusing on the grievance letter and noted that paragraph 20 states that the claimant “more than likely” would have accepted redundancy if he had been given the spreadsheet analysing the data. The grievance states at para 21 that the claimant believes he was left with no other option other than resignation as assigning the territory to him made his position untenable with the only outcome, he alleges, being performance management potentially resulting in his termination.[27]Mr Wilkinson noted that it is not clear exactly what the claimant’s case is with regard to constructive dismissal – is it a last straw case or is only one term being relied upon? But what the grievance states, maintains Mr Wilkinson, is that the claimant says that if he had been given the data he would have accepted redundancy rather than take the new role in January 2018. That is important context.[28]On 25 January 2018 there is evidence that the Claimant had agreed to be redeployed and so the territory issue was not live at this stage. On 24 January 2018 the Claimant had accepted a telephone interview with a new role. Thus the territory issue was no longer a live issue and could not reasonably be considered a reason that caused the Claimant to resign. Mr Wilkinson submitted that this showed that the Claimant had already decided to leave.[29]A formal offer had been made to the Claimant on 20 January 2018. He then resigned on 9 March when it was clear no package would be made available to him. He started his new role on 12 March 2018.[30]Mr Wilkinson’s position was that the timings (which are not in dispute) undermines what the documents say. He says the only credible reason for the Claimant’s resignation was because he had not secured a package from the Respondent to leave and he had another job to go to. He maintains that there is little or no reasonable prospects of the Claimant’s position (that he resigned because of alleged breaches of contract) being accepted.[31]Mr Wilkinson submitted that there were no reasonable prospects of success and therefore the Claim should be struck our, which failing a deposit order should be made for a sum to be determined by the Tribunal. Claimant’s submissions[32]Ms Bennie did not take any issue with the productions and chronology. In relation to the territory issue, she submitted that The Claimant received the information after 25 January 2018 (when the email says the claimant agreed to redeployment) and before 9 March 2018 (the date of the grievance) and possibly earlier, maybe 2 March 2018. While the Claimant may have said he would have “accepted redundancy”, that does not mean that the Claimant is accepting redundancy would have been fair. The Claimant would have made a decision at that point as to his position.[33]Ms Bennie submitted that there is a course of conduct that is relevant to the reason for the Claimant’s resignation. In essence the Claimant was being told before the redundancy process had concluded that he would not have a role. The Claimant had raised concerns about the process in November 2017 and the final straw was the territory information (between 25 January and 2 March 2018).[34]The fact the Claimant was looking for another job does not suggest that the Claimant did not resign because of the Respondent’s actions. The reason the Claimant was looking for another job was because of the treatment he received by the Respondent from November 2017 until March 2018. That is what the Claimant says in his Claim Form and his grievance.[35]Ms Bennie then set out the law in this area and noted the question is whether the fundamental breach played a part in the resignation of the Claimant.[36]Ms Bennie summarised the legal position in relation to strike out referring to the 2 stage tests. She argued there were reasonable prospects of showing a reason for the resignation was the treatment the Claimant had suffered and in any event even if there were not, it would be disproportionate to dismiss the claims or issue a deposit order. These were draconian measures particularly where the issue is highly fact sensitive.[37]Ms Bennie’s position was that the Claimant had faced conduct which he considered to amount to a fundamental breach of contract. That was a course of conduct and he took time to consider his options and then resigned because of that, even although he had another job to go to. Respondent’s response[38]Mr Wilkinson responded by noting that while there is a 2 stage process in connection with exercising discretion under rule 37, in the circumstances there were no reasonable prospects of success, or little reasonable prospect and so his position should be preferred.[39]Having carefully considered the productions to which I was directed and the helpful submissions of both counsel, I prefer the submissions of Ms Bennie. I am not satisfied that it has been shown that there is no reasonable or little reasonable prospect of the Claimant establishing that the fundamental breach of contract on which he relies did not in some way play a part in his resignation.[40]While there is clearly evidence that suggests he resigned because he failed to secure a package from the respondent, that, by itself, does not mean that there were no other reasons that caused him to resign. Further, in an issue such as this, given its importance, it would be necessary to assess the Claimant’s credibility and his reason for resigning. As Mr Wilkinson pointed out, it may be necessary to look beyond what the documents say to fully understand what was intended. That is something that would require the hearing of evidence and the assessing of credibility and reliability and the making of a finding in fact as to the reason (or reasons) that led the Claimant to resign.[41]The issues in this case are not dissimilar to the position in Wright where there was 2 or more reasons that played a part in the resignation. It is clear from the productions to which I was referred that the Claimant was unhappy with the process in the course of November 2017. He says that he was unhappy with the way in which the matter was dealt with and this caused him stress and anxiety. That is information contained within his grievance, which was lodged after he had accepted a role with a new employer. Nevertheless that does not necessarily mean that there are no reasonable prospects of showing the concerns the Claimant had about the way in which he was treated did not still feature as a reason for his resignation. That is a matter of evidence.[42]The fact that the territory issue had been resolved, since the Claimant had accepted the new role, may well be relevant in showing the reason for his resignation but in my view, it does not definitely rule out the fact that the Claimant may well have also resigned for other reasons, which could potentially include the fact that he was unhappy with other aspects of the procedure, which could amount to a fundamental breach of contract.[43]In all the circumstances therefore the Respondent’s application to strike out the claim because it has no reasonable prospects of success fails. The Respondent’s application for the Tribunal to issue a deposit order because there are little reasonable prospects of success also fails.[44]The matter should now be listed for a Hearing to determine the claim. Clarification of the claim[45]Mr Wilkinson suggested that the Respondent was unclear as to the precise basis of the claim for constructive unfair dismissal, in that the particular acts relied upon had not been specified and it was not clear if a final straw was relied upon. This ought to be a matter which the Claimant can clarify to ensure the basis of the claim is clearly set out. It is open to the Respondent to seek an order for such clarity in the absence of voluntary provision of this information.[46]It ought also to be possible for the parties to agree a chronology and a statement of facts to reduce the issues in dispute and thereby progress matters in accordance with the overriding objective.
Relevant Law
[47]The applicable legal principles were concisely set out in the respondent’s representative’s submissions. Following Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, for the purposes of a claim of unfair dismissal, an employee is dismissed by his employer if the employee terminates the contract (with or without notice) in circumstances in which he is entitled to do so without notice by reason of the employer’s conduct. The test of whether an employee is entitled to do so is a contractual one. There must be a breach of contract by the employer. It may be either an actual breach or an anticipatory breach. That breach must be sufficiently important or serious to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. The employee must leave in response to the breach and not for some other, unconnected reason. Following Leeds Dental Team Ltd v Rose [2014] IRLR 8, the test of whether there has been a breach of the implied term of trust and confidence is objective. Following Mahmud v BCCI SA [1997] ICR 606, and Bournemouth University Higher Education Corp v Buckland [2009] ICR 1042 (EAT), in a claim in which the employee asserts a breach of the implied term of trust and confidence, he must show that the employer had, without reasonable and proper cause, conducted himself in a manner calculated, or likely, to destroy or seriously damage the relationship of trust and confidence between them. Following Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, in a case involving the ‘last straw’, the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. In such a case, the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim "de minimis non curat lex") is of general application. The claimant’s representative also made submissions on the legal position, as referred to below.[48]I additionally note that for a successful claim of constructive dismissal, there must be a causal link between the employer’s breach and the employee’s resignation – i.e. the employee must have resigned because of the employer’s breach and not for some other reason, such as an offer of another job. It is a question of fact for the Employment Tribunal to determine what the real reason for the resignation was. To be successful in a constructive dismissal claim, the employee must establish that(i) there was a fundamental breach of contract on the part of the employer(ii) the employer’s breach caused the employee to resign; and(iii) the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[49]Where the Tribunal makes a finding of unfair dismissal, it can order reinstatement, or in the alternative award compensation. In this case the claimant seeks compensation. This is made up of a basic award and a compensatory award. The basic award is calculated as set out in the ERA Section 119, with reference to the employee’s number of complete years of service with the employer, the gross weekly wage and the appropriate amount with reference to the employee’s age. Section 227 sets out the maximum amount of a week’s pay to be used in this calculation. In terms of the ERA Section 123(1) the compensatory award is such amount as the Tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. Submissions[50]There was no dispute on the relevant law. Both representatives lodged comprehensive written submissions. The claimant’s representative relied on the grievance lodged by the claimant prior to his resignation (at JIP 13 – 25). His position was that the summary of the claimant’s concerns set out at JIP 13 was acceptably recreated in the first two issues identified for determination by the Tribunal. He submitted that the conduct of the Respondent amounted to a fundamental breach of the implied term of trust and confidence. Specifically, he asserted:(i) That the Respondent had at a stage well in advance of undertaking the necessary process to allow arrival at a conclusion as to which of three managers would be the one retained in that role had, at the hands of Fran Manzanero intimated to the Claimant a decision to exclude him from that position.(ii) That in the course of a meeting with the Claimant on 23rd January 2018, a director of the respondent had, by his action and comments towards the Claimant, exposed him to harassment in the form of bias towards age, stress and anxiety and fear as to the safety of his future employment with the Respondent.(iii) That, pursuant on his loss of a managerial position, the claimant was allocated to a territory alignment that was neither fair, reasonable nor viable, causing the Claimant to resign his employment.[51]The claimant’s representative submitted that this was a series of three acts on the part of the respondent which amounted to a repudiatory breach of the claimant’s employment. The last act in the series was categorised as ‘the last straw’. Reliance was placed on the implied term of any contract of employment that the employer will 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, with the test of whether there has been a breach of the implied term of trust and confidence being an objective one. It was submitted that it is not unusual to find that the erosion of trust and confidence involves the employee leaving in response to a course of conduct that has taken place over a period of time. It was submitted that the last straw principle may or may not in itself justify his taking that action, but it requires to be sufficient to allow a tribunal to find the resignation as a constructive dismissal.[52]The claimant’s representative relied upon the claimant’s treatment by Fran Manzanero on two separate occasions, 27 / 28 November 2017 and 23 January 2018, as being two breaches of the implied term of trust and confidence. In respect of the third basis of his complaint, he relied upon the claimant being allocated a sales rep position, while retaining his prior managerial salary, and the customers allocated to him being indicative of a ‘potential miniscule commission as against its previous $35k worth’ and that ‘it was also clear that he would be earning much less than the eight other sales reps’.[53]The claimant’s representative submitted that following on the first breach, notwithstanding its seriousness, the claimant elected not to leave his employment, hoping that his belief in his own abilities on a comparison with those of the other two managers might lead to a different result, once proper procedure was carried out before the issue of a decision on who would be retained as a manager. He submitted that the last straw in this case is the third part of a cumulative series of events, and like the other two, is itself a serious matter which destroyed the trust and confidence between the Claimant and his employer. He submitted that they are the reason the Claimant resigned his position. He submitted that the last straw does not of itself require to be of great weight, but when added to earlier breaches by the employer cumulatively there is a situation allowing the employee to regard the contract as repudiated. The tribunal was asked to find that in all the circumstances narrated by the claimant’s representative in his written submissions, the respondent acted in a manner which seriously damaged the relationship of trust and confidence between the parties; further that they did this in these three distinct matters, that the Claimant resigned by reason of that conduct only; and that the Claimant was constructively dismissed.[54]The respondent’s representative noted the claimant was seeking to rely on the ‘last straw’ principle. It was the respondent’s submission that the claimant was not unfairly (constructively) dismissed and that his claim before this Tribunal should be dismissed.[55]Parties representative’s positions in their respective submissions was accepted, or not, as set out below.[56]It was not submitted that there was any issue with regard to a possible uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRA’) with regard to non-compliance with the ACAS Code of Practice entitled ‘Disciplinary and Grievance Procedures’.[57]The respondent’s representative took no issue with the claimant’s representative’s quantification of the claimant’s loss. Parties representatives were agreed that in the event of the claimant’s claim being successful, his award would be a basic award of £2,286 and a compensatory award of £15,983.54. Observations on evidence[58]I mainly accepted the respondent’s representative’s submissions in observations on the evidence. I accepted that in giving his evidence, particularly in cross examination, the claimant was cautious, even guarded in giving his evidence. In some aspects he was unwilling to accept an obvious point. In other aspects his evidence was confusing and contradictory. In yet other areas, his evidence was lacking in credibility. It did seem to me that the claimant had a tendency to see things from his own perspective, without appreciating the wider business considerations which the respondent had. I found the claimant to be evasive in his response to being questioned on how he could start work with his new employer on the agreed date of Monday 12 March 2018 if he had not resigned from his employment with the respondent with immediate effect on Friday 9 March 2018. I considered that to be very significant, particularly where the claimant sought to pursue a termination payment with the respondent prior to his resignation in circumstances where he had accepted an offer of employment from another employer. I considered it to be very significant that the claimant’s position before me that he had not accepted the role as Digital Sales Rep was not supported by the documentary evidence. As referred to in the findings in fact, the claimant had clearly stated in contemporaneous correspondence to the respondent that he had accepted that role (although his position was that would he would not have accepted it had he been provided with information which he later had). I accepted (sometimes in part) the respondent’s representative’s particular comments on the evidence as follows:-(i) In cross-examination the claimant was unwilling to accept that the proposal to reduce from three managers to one was a redundancy situation.(ii) In cross-examination the claimant suggested that in Mr Bryans’ email of 28th November 2017 when saying “I have not completed the scoring yet, but I do know the outcome”, Mr Bryans had meant that he had not started the exercise. I accepted that that interpretation was not supported by the email or its context. I accepted that this was an example of the claimant’s tendency to interpret evidence principally so as to suit his case.(iii) The claimant’s evidence on what he believed was the message from Fran Manzanero in the meeting on 23 January 2018 was “I believed he meant not successful in the Rep’s role would withdraw the opportunity of staying with the company.” The claimant’s evidence was that in that meeting Fran Manzanero had said to him “With this level of consistency, I’ll have to think about your future”. I accepted that by 23 January, the claimant had accepted the Rep’s role, and thus the redundancy exercise was over. I accepted that the claimant’s evidence on that meeting on 23 January was contradictory to his position that the redundancy process had not stopped because he had had no confirmation of the position in writing from the respondent.(iv) The claimant’s evidence in chief about his meetings with Fran Manzanero prior to 23 January was that Mr Manzanero was “volatile” and that he was left unsure as to which of his characters was going to turn up, or how he was going to be spoken to. This is contradictory to the contemporaneous correspondence included in the JIP at 362, which records the claimant having told Simon Musgrave in a meeting on 19 March 2018, “All my interactions with Fran had been pleasant to this point” (referring to the meeting on 23rd January).(v) On the issue of challenges with the claimant’s behaviour and his management style (referred to in the investigation into his grievance, at JIP 356) the claimant’s evidence was that there had been no grievance or complaint against him. In contrast, the cross-examination of Sarah Ambrose said that a grievance had been raised, albeit not upheld. I accepted that the claimant’s evidence was evasive on the point.[59]It was the claimant’s position that at the earlier meeting in Barcelona, Fran Manzanero and others had decided that the claimant would not be successful in being selected for the one remaining manager role within the Digital Sales team in Erskine. I attached weight to the claimant’s email to Fran Manzanero on 29 November in respect of the meeting which had then recently taken place (JIP 126). I considered that the terms of the claimant’s email did not support the claimant’s position in evidence that he had been told at that meeting that he would not be selected for the one remaining management role. I did not accept as credible the claimant’s position in cross examination that he had sent the email to Fran Manzanero after the meeting in those terms because he was “becoming aware of Fran’s volatile nature” and he “took the decision to remain positive”. ”. I did not accept that as credible or in line with the terms claimant’s email to Fran Manzanero on 29 November. It was put to the claimant in cross examination that he had not said to Fran Manzanero that what he was saying re a decision having been made was ‘diametrically opposite’ to the process. The claimant’s response was that he had not, because he ‘didn’t know him and what his reaction would be’, and he ‘was shocked at the news’. I did not accept that as credible or in line with the terms of the claimant’s email to Fran Manzanero on 29 November. The claimant accepted in cross examination that at that meeting Fran Manzanero had told the claimant that he wanted him to stay with the business because of his knowledge and experience. The claimant accepted in cross examination that after he had been given the PowerPoint presentation WFM process, he had not raised with Sarah Ambrose that he had already been told that he would not be selected. The claimant’s response to this was:- “No, I still had faith in the process and my skills and that I would be selected.” I did not find that position to be credible. The claimant was pressed if this was his view, despite it being his position that it ‘his boss and his boss’s boss’ had decided that he would not be selected. His evidence was:- “Yes. I believe a fair process should happen. I couldn’t believe that a company the size of Micro Focus would allow this to happen. I had faith and trust in the organisation I worked for for three years.”[60]I did not accept that the selection process followed by the respondent was a sham. I accepted the evidence that the individual who was selected was selected on a fair basis, based on the competencies set out in the selection criteria. I accepted that there may have been discussions on the most likely outcome. I did not accept that there had been determination on the outcome of the selection process at its outset in November 2017.[61]I considered it to be significant that the claimant’s position was that he had no recollection of the email sent to him by Shaun Briggs on 5 February 2018, with information on the accounts and territory assigned to him in his new role as Digital Sales Representative. When that email (JIP 219) was put to the claimant in cross examination, the claimant’s evidence was “I have no recollection of receiving that email. Otherwise I would have analysed the data.”. It was then put to the claimant that Shaun Briggs would say that he had emailed the information to him on 5 February. The claimant’s reply was “I have no recollection of seeing that email and analysing it”. The claimant’s position was not supported by Shaun Briggs evidence, or by the contemporaneous emails relied upon as documentary evidence. On 6 February 2018 the claimant had sent an email to Shaun Briggs in reply (JIP 235). The claimant’s position in cross examination was that he had been sent spreadsheets by Stevie Bryans, in an email which was not included in the JIP. When asked if it was his position that he had been sent different information to that attached to the email sent to him by Shaun Briggs on 5 February 2018 (JIP 219 – JIP 234), the claimant’s answer was “he more than likely sent me the same spreadsheet”. In cross examination, the claimant admitted responding to Shaun Briggs’ email, saying “I don’t recall receiving it, but I have responded requesting more information.” It was put to the claimant that he had not raised any issues with the accounts allocated to him. His response was “I can’t recall documenting any issues but I would have verbally. I was asking for the three years spend so as I could analyse the data.” I did not consider the claimant’s position in evidence to be supported in the contemporaneous emails which were before me. The claimant accepted in cross examined that the first time he raised that the territory assignment to him was ‘unfair and unreasonable’ was on 2 March 2018 (JIP 264). His position was that he had spoken to Stevie Bryans about the matter previously.[62]I accepted the respondent’s representative’s reliance on a Witness Order having been issued at the claimant’s request for the attendance of Stephen Bryans, and the claimant’s later decision not to call Stephen Bryans. I accepted the reliance on the documentary evidence before me showing that on 21 March 2018 Stephen Bryans attended a meeting as part of the investigative process into the claimant’s grievance (JIP 345 – 349). In those notes he describes the claimant as a friend. The claimant in his evidence agreed with that. I accepted that it is more likely than not that those notes accurately record Mr Bryans’ evidence on the various questions asked of him. I accepted that if the claimant believed that those notes were in any material respect inaccurate or not Mr Bryans’ evidence, he could have called Mr Bryans to give his evidence. I accepted that the claimant’s evidence on those notes not being accurate because they don’t reflect what Stephen Bryans has told him is hearsay and I attached no weight to that evidence. I took into account the claimant’s representative’s reliance on the claimant’s evidence that the only reason Stephen Bryans was not called to give evidence for the claimant was in respect of Stephen Bryan’s concerns that to do so might seriously affect his new employer’s belief in him in acting against the interests of one of their biggest customers. I took into account the claimant’s representative’s reliance on the respondent electing not to call Stephen Bryans as a witness.[63]I accepted that Fran Manzanero gave his evidence in a direct, unequivocal and clear fashion. I accepted that although English is not his first language, that was no barrier to him understanding the questions asked of him or in answering them. Mr Manzanero confirmed that his understanding of English was sufficient to enable him to give his evidence and there was no reason during the proceedings to doubt that position. I accepted that on controversial areas (the meetings on 27 November 2017 and 23 January 2018) and in cross examination, he was precise, unequivocal, resolute and consistent without being in any way confrontational, notwithstanding the various efforts to suggest contrary positions. For these reasons I found him to be an impressive witness, who clearly had a wide knowledge of the respondent’s business operations and had a high level of care and engagement in working towards the success of the global business.[64]For all these reasons I did not find the claimant to be entirely credible or reliable. I considered these points to be significant in my assessment of the evidence in reaching my conclusions in findings in facts to what had occurred on 27 November 2018, and in ultimately preferring the version of events of Fran Manzanero in respect of that meeting. For all these reasons, I accepted the respondent’s representative’s submissions that in areas of dispute between Fran Manzanero and the claimant, the evidence of Fran Manzanero should be preferred.[65]I did not accept as accurate the claimant’s representative’s description in his written submissions of Fran Manzanero as ‘big and burly’. Although both were sitting down most of their time before me, it appeared to me that Fran Manzanero and the claimant are of similar height. I accepted that at the meeting on 23 January, Fran Manzanero was animated. I accepted that he was standing and walking up and down the length of the table, pointing at a whiteboard with figures on it. I accepted Fran Manzanero’s description of himself as a passionate person and his explanation that he comes from a culture in Spain were one may have difficult and animated conversations in respect of business matters, and then happily have an amicable coffee with the same individual on a personal basis. In the context of the respondent’s business, where accurate forecasting of pipeline sales figures is very important, where the claimant was aware, or ought to have been aware of that, and where no prior indication had been given to Fran Manzanero by the claimant that he would not even achieve his worst-case scenario figure in respect of forecasting a particular contract, I did not accept that Fran Manzanero’s conduct at that meeting was unreasonable. That conduct did not breach the implied term of trust and confidence. In this conclusion I took into account Stephen Bryans’ position as stated in the investigatory interview carried out by the respondent (JIP 348). I accepted Fran Manzanero’s explanation that his concern at the meeting was not only in respect of then being the first indication of the significant shortfall in the change in the claimant’s figure re. a particular contract but also because the claimant made no suggestions as to how that shortfall would be otherwise made up. I did not accept the claimant’s representative submission that Fran Manzanero displayed ‘an unacceptably extreme reaction’.[66]I found Sarah Ambrose to be a credible and reliable witness. She was open and candid in her evidence, accepting a number of matters which were put to her in cross examination, even when they did not paint the respondent in a particularly good light (e.g. failure to issue confirmation letters of redeployment). She did not seek to portray an unrealistic image of the respondent. In respect of the occasion where she remembered swearing, I accepted her position that he could recollect an occasion when she had sworn in a conversation with Stephen Bryans, and that he had commented on that. I accepted that she could not recollect if that conversation had been in relation to the claimant. I accepted that on the basis of her explanation that she had many and frequent conversations with Stephen Bryans and that there was no particular reason for her to have recollected the context of the conversation in which she had sworn. That was consistent with her position in the investigation carried out by the respondent into the claimant’s grievance. I accepted the claimant’s representative’s submissions that when interviewed as part of the grievance procedure, neither Sarah Ambrose or Stephen Bryans denied that the situation asserted by the claimant was true, only that they had no precise recollection.[67]I found Shaun Briggs to be an impressive witness. He clearly had much wider awareness than the claimant of the respondent’s world-wide business and the impact and importance to the business of accurate forecasting and reasonable allocation of sales territories. This knowledge was commensurate with his role within the respondent’s business. I found him to be entirely credible and reliable. I accepted as entirely credible and reliable Shaun Briggs’ evidence in respect of the reasonableness of the territory and the fit for the claimant’s skills and experience. I did not accept the claimant’s representative’s submissions that Shaun Briggs evidence cast any dubiety to that central position.[68]I accepted the respondent’s representative’s submissions in respect of matters raised in cross examination only in respect of(1) questions of both Sarah Ambrose and Fran Manzanero alluding to there being a connection between the treatment of the claimant and the move of business from Erskine to Belfast and(2) questions asked of Sarah Ambrose (but not Fran Manzanero) about coaching received by Mr Manzanero. The claimant had not relied on these matters in his evidence. I accepted the evidence of Fran Manzanero that the move to Belfast was an “independent process”. In circumstances where Fran Manzanero was not asked about the reason for the coaching which he received, and where there was no evidence before me on the specific nature of that coaching, I attached little weight to Sarah Ambrose having confirmed in cross examination that Fran Manzanero had received coaching.[69]I accepted in part the claimant’s representative’s submissions on findings in fact. It was the claimant’s position that at a meeting on 27 November 2017, Fran Manzanero told the claimant words to the effect that the outcome of the process of selecting one manager to remain from the three then in post would be that the claimant would not be successful. In respect of the meeting on 27 November 2017, I accepted the respondent’s representative’s submissions that:- i. The claimant gave evidence in chief which supported his position. However, aspects of his evidence undermine his credibility on the point. His evidence was that he was “surprised”, “shocked” and “disappointed” by something which he regarded as “completely unfair”. That reaction is consistent with his belief that he should have been selected. However, it is inconsistent with his evidence that he “still believed at that point in a fair process.” ii. It is also completely inconsistent with his next exchange with Mr Manzanero in which the claimant said (29th November) that he saw the conversation as positive and was “looking forward to a successful FY18 under [his] leadership” (JIP 126). iii. His apparent shock, surprise and disappointment are inconsistent with the fact that he did not complain to anyone else at the time about the conversation. iv. The claimant’s evidence is directly contradicted by Mr Manzanero. His evidence on the point was credible, and consistent with the surrounding events; he had been asked by Mr Bryans to meet all three managers individually; he prepared for “the conversation” with each of them; he told them the same position; he “cut and pasted” the same message to each of them there would be a selection process and that they should not be panicked if they were not selected as there would be other options to explore within the business; and he told the claimant that he was a valuable asset to the business so if not selected he wanted to retain him. v. The claimant’s version is not supported by Mr Bryans. He told Mr Musgrave that he had no recollection of the conversations said by the claimant to have taken place afterwards with him (JIP 345), something which, objectively, one might expect him to recall. Nor did he have any recollection of the conversation said by the claimant to have occurred between him and Sarah Ambrose. vi. Ms Ambrose did not recall that conversation either (as referred to in the investigatory interview re the claimant’s grievance, at JIP 354) and which was her evidence to the tribunal. vii. The claimant’s evidence is inconsistent with the message delivered by Mr Bryans the previous business day. Looked at objectively, it would be unusual for an employer to say that it intended to follow a selection process which was to be “a fair and objective assessment” (slide at JIP 116) only for it then to disregard it.[70]I did not accept the claimant’s representative’s submissions to prefer the claimant’s evidence that at that meeting on 27 November, Fran Manzanero had immediately advised the claimant that he would not be selected for the remaining Manager Level 1 position in the process to follow, but that Fran Manzanero wished the claimant to remain as a sales representative since he valued the Claimant’s knowledge experience and sales skills. I took into account the claimant’s representative’s submissions that Fran Manzanero had in his evidence expressly denied that he had made any such statement to the Claimant and that those two individuals were the only persons present and accordingly the foregoing was the only direct evidence heard on the matter. For the reasons set out above in respect of my observations on the credibility of the claimant and of Fran Manzanero, I accepted the evidence of Fran Manzanero. I did not accept the claimant’s version of events in respect of the meeting on 27 November because that version was inconsistent with the claimant’s position in contemporaneous documents as referred to above, and because I did not find the claimant to be entirely credible and reliable in his evidence before me. I did not accept the claimant’s representative submission that the claimant had emailed Fran Manzanero on 27 November thanking him for a positive meeting and expressing hope for a successful FY18 because he regarded this as the appropriate and safer position to take. I took that email to be entirely inconsistent with the claimant’s position before me in respect of constructive dismissal. Although it was the claimant’s position that he had spoken to his line manager the following day about what Fran Manzanero and had said to him at the meeting, I did not hear evidence from Stephen Bryans to support that position. I accepted Sarah Ambrose’s evidence as credible and reliable. Sarah Ambrose could not recollect having had a conversation with Stephen Bryans about what the claimant alleges was said to him by Fran Manzanero on or around 27 November.[71]The claimant’s representative submission was that the email trail at JIP120/1 ‘may confirm the probability that the claimant’s removal from a managerial position had been made without due process’. I did not accept that to have been the case.[72]I accepted the respondent’s representative’s submissions in respect of the ‘Workday reporting issue’ in December 2017. I accepted that the claimant’s evidence that he was the only person affected by “a problem with Workday” was contrary to the evidence of Sarah Ambrose and Shaun Briggs. For reasons of credibility, as set out above, I preferred the evidence of Sarah Ambrose and Shaun Briggs that, arising from the move to its current business, the respondent experienced a number of IT issues and that this was a widespread problem, causing issues which affected many employees, including Mr Bryans (with reference to JIP 347). I did not then accept the claimant’s position that the problem identified by him was part of the “calculated” efforts to break his contract.[73]It was not disputed that Fran Manzanero met with each of the claimant’s team on a one to one basis in Erskine on 16th January. I accepted the respondent’s representative’s submission that that was not calculated to break the contract, or was a straw which along with others broke it. I accepted the respondent’s representative’s submission that the evidence did not support a finding that the meetings were calculated to undermine the claimant’s position as their manager or render him unable to fulfil his role as manager (as claimed in the claimant’s grievance). I accepted the respondent’s representative’s submissions in respect of findings in fact in that regard.[74]In respect of the meeting between the claimant and Fran Manzanero on 23 January 2018, I accepted in part the respondent’s representative’s submissions on the evidence and the findings in fact which should be made on that evidence. I accepted that the suggestion in the claimant’s representative’s written submission to the effect that Fran Manzanero “would likely reach a high level of irritation at the loss of an anticipated financial benefit” is speculation, unsupported by the evidence, and contradicted by the evidence on which findings in fact are made.[75]Fran Manzanero’s evidence that he had ‘worked hard’ to convince others to retain the claimant in the business, at his previous manager’s level salary although in a new role as sales representative was not disputed and was accepted by me. I considered that evidence to be very significant. That evidence pointed to the respondent seeking to protect a continuing employment relationship with the claimant following him being unsuccessful in the redundancy selection exercise. That evidence, and the undisputed fact that the claimant was being retained on that higher level salary, pointed against the respondent acting in a way which was calculated, or likely, to destroy the employment relationship between the claimant and the respondent. I concluded that, on the contrary, that was a factor indicative of the respondent seeking to protect the employment relationship.[76]The claimant’s evidence was that in January 2018, his then colleague Richard Forster had(i) told him about conversations alleged to have taken place in Barcelona on 20th November 2017 involving both Stephen Bryans and Fran Manzanero (which conversations suggested that the decision had by then been taken that he would not be retained as Level 1 Sales Manager) and(ii) shown him an email chain from 28th November 2017 (JIP 120 – JIP 121) in which Stephen Bryans advised that while he had not by that time completed scoring of the claimant or his manager colleagues, he knew the outcome of that exercise. I accepted the respondent’s representative’s reliance on not hearing the evidence of Richard Forster on either issue, that the claimant’s evidence is hearsay only and on the claimant’s lack of recollection of when in January this information was provided to him. I accepted that neither issue was a reason for the claimant’s resignation (JIP 320) I accepted that neither issue was raised by the claimant in his grievance, nor in his grievance meeting. I accepted that the claimant’s position that it had been decided as early as 20 November 2017 that the claimant had not been successful in securing the Manager role was contradicted by the evidence of Fran Manzanero and not supported by Mr Bryans’ position at his grievance meeting (JIP 345). I accepted the respondent’s representative’s submission that , if the claimant’s version is correct, then it is surprising that at the point he learned of these issues (which was at latest the end of January), he said nothing to the respondent about them. I accepted that it was significant, and in contrast to his actions after the meeting on 23 January 2018, that the claimant did not raise that with Sarah Ambrose or anyone else in HR.[77]In respect of the issue of the claimant’s redeployment into the role of Digital Sales representative (Individual Contributor), I accepted the respondent’s representative’s reliance on the position stated by the claimant in his grievance (JIP16), that “the only conclusion that can be reached concerning the WFM [Workforce management] process …….is that it was a calculated effort by the business to engineer a desired outcome”. I accepted that the documentary evidence did not support the claimant’s contention that the exercise was a sham. I accepted the respondent’s representative’s reliance on Sarah Ambrose’s evidence and on the documentary evidence as contradicting the claimant’s position.[78]In respect of the claimant’s reliance on the territory allocated to the claimant, I accepted the respondent’s representative’s reliance on this territory being held previously by one of the claimant’s own direct reports. I considered that to be very significant. I considered it to be very significant that during the time when the individual who had, in the main, been allocated the territory later assigned to the claimant was a direct report to the claimant, the claimant had not raised any issue with the viability of that territory. On the basis that I found Shaun Briggs to be a wholly credible and reliable witness, with impressive knowledge on relevant aspect of the respondent’s business, such as the importance of accurate forecasting and viable targets, I did not accept the claimant’s representative’s position that the territory ‘was completely unfair and did not provide the Claimant with a reasonable chance to achieve against a sales target’. I accepted the respondent’s representative’s submission that the evidence did not support a finding that the allocation of this territory was done intentionally so as to, even possibly, bring about the termination of the relationship.[79]I did not accept as credible the claimant’s position before me that he had not been appointed to the role of Digital Sales Rep. I noted that that was not the position presented at the Preliminary Hearing before EJ Hoey. I did not accept the position in the claimant’s representative’s submissions that as at 5 February 2018 the claimant’s function was ‘to look after a few opportunities while a sales rep (named) was off work and unwell’. I found that the claimant was working at that time in the redeployed role of Digital Sales Representative, as an outcome of the redundancy selection process. I accepted the respondent’s representative’s submission that, on the evidence, in particular the claimant’s responses in cross examination and the claimant’s grievance , by 18 January 2018, the claimant had accepted the Digital Sales Representative role. I accepted that while the claimant was not issued with a Sales letter, it would be unusual to issue him with written confirmation on his redeployment. I accepted Sarah Ambrose’s evidence that it was not normal practice in the respondent’s business to provide confirmation of the redeployed role, although I note that the given the size and changing nature of the respondent’s organisation, it would be best practice to do so. It seemed to me to be disingenuous for the claimant in all the circumstances to seek to prove that he had not in fact been appointed in that role. I considered it to be significant that the claimant was aware of the territory previously, having line-managed the individual who had been assigned to most of the accounts in that territory, that the claimant had not raised concerns about the territory allocated to that individual, and that additional contracts had assigned in line with the claimant’s own experience. I did not accept that the claimant was not aware of the accounts in the territory for that role on his appointment in February 2018. The claimant’s email at JIP 235 was inconsistent with his position that he had not accepted that role.[80]For all these reasons, I accepted the evidence of the respondent’s witnesses to the claimant’s version of events. The claimant did not prove that Fran Manzanero told him on 27 November 2017 that he would not be successful in the forthcoming selection process. The claimant did not prove that Fran Manzanero’s behaviour toward him on 23 January was unreasonable. The claimant did not prove that the territory assigned to him in his new role as Digital sales Representative was unfair, unviable or unreasonable. In all these circumstances there was no breach of contract, either individually or a cumulative basis in respect of the matters relied upon by the claimant.[81]I accepted the claimant’s representative submission that the claimant ‘gave due consideration to the events of the previous months and to the position he was being required to undertake based on his analysis of the data insofar as that had been provided to him.’. I accepted that those events played a part in the claimant’s decision to seek alternative employment and to resign once that alternative employment had been secured. I did not accept that the lack of information relied upon in the claimant’s representative’s submissions caused the claimant to ‘decide that this continual disregard for his interests meant that the respondent had chosen to convey that there was no reasonable future in store for him and that this was the last straw’. I did not accept the claimant’s representative’s submission that the claimant’s resignation ‘was unrelated to the fact that he had indicated acceptance of another position’. I attached weight to the fact that on 2 March 2018 the Claimant had signed a contract of employment with his new employer stating, in an email of that date “I am looking forward to joining NGA HR” (the new employer) and in the meantime he continued to seek a termination payment from the respondent.[82]The first issue identified for my determination was (i) Did the respondent conduct itself in a manner calculated to destroy or seriously damage the relationship of trust and confidence between the parties?[83]I noted, as set out in the respondent’s representative’s submissions, that the agreed question distinguishes ‘calculated’ conduct from conduct that is ‘likely’ to destroy or seriously damage the relationship. I noted the respondent’s representative’s reference to Baldwin v Brighton and Hove City Council [2007] I.C.R. 680, at paragraph 23, where the distinction between(i) calculated and likely and(ii) calculated or likely is discussed. I noted the respondent’s representative’s submission that the issue focusses only on whether the conduct complained of was calculated, that is, intentional, because that reflects the claimant’s written case (for example the WFM process was a calculated effort to engineer a desired outcome as set out at JIP 16) and his evidence that everything else together “was pre-planned for him to leave” by redundancy or in a performance review process.[84]For the reasons set out above, I preferred the version of events of the respondent’s witnesses to the claimant’s version. I made findings in fact based on my assessment of the evidence before me and the credibility and reliability of witnesses. On the findings in fact, the respondent did not conduct itself in a manner calculated to destroy or seriously damage the relationship of trust and confidence between the parties. Had I been asked to so determine, I would also have decided, for these same reasons, that the respondent did not conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the parties.[85]I accepted the respondent’s representative’s submission that there is no evidence to support that running through the various ‘straws’ relied on by the claimant is a common thread of deliberate conduct on the part of the respondent designed to break the contract. I accepted the respondent’s representative’s submission that there is no evidence to support a finding of intentional conduct on the part of the respondent to destroy or seriously damage the relationship of trust and confidence between the parties.[86]The next identified issue for my determination was:- (ii) Was the conduct of (d) A calculated effort by the Business (EMEA Digital Sales) to engineer a desired outcome that was neither fair nor reasonable; (e) inappropriate action and comments by Senior Management said to have caused the claimant to feel harassment in the form of bias towards age, stress and anxiety: and (f) Territory Alignment that was unfair and unreasonable leading to Potential Performance Management due to territory alignment, calculated, and did it cause or significantly contribute to the claimant resigning his employment?[87]I made findings in fact taking into account the documentary evidence before me and the credibility and reliability of the witnesses’ evidence. The claimant’s evidence was inconsistent with the contemporaneous documentary evidence, as set out above. The claimant did not prove, on the balance of probabilities that the conduct that he relied on having occurred on 27 November 2017 occurred. The claimant did not prove, on the balance of probabilities that the conduct that he relied on having occurred on 23 January 2018 occurred. The claimant did not prove, on the balance of probabilities that the territory aligned to him was unfair and unreasonable, as alleged.[88]I made my determination on the question:- (iii) Did the claimant resign in response to that conduct or for some other reason?[89]In considering this issue for its determination, I adopted the approach set down by the EAT in Wright -v North Ayrshire Council [2014] ICR 77, not to look for the effective cause of the resignation. It was clear to me that the securing of alternative employment was an effective cause for the claimant’s resignation. I use the indefinite article here, rather than the definite article of ‘the effective cause’, in recognition of Langstaff J comments at paragraph 14 in Wright -v North Ayrshire Council and the position set out in the rubrick of that case that :- “It was an error of law the employment tribunal to look for the effective cause of the claimant’s resignation in the sense of the predominant principal major or main cause. The crucial question in establishing whether an employee who had more than one reason for resigning had been constructively dismissed was whether repudiation or breach of contract had played a part in the resignation and that as the tribunal had misdirected itself and its decision was not in any event plainly and arguably right the matter would be remitted to the tribunal to determine whether the employer's repudiatory breaches had played a part in the claimant’s resignation. “[90]The reason for a person’s resignation can be multifactorial. The claimant may have had legitimate concerns about his income stream and ability to meet his financial obligations for him and his family which would be relevant factors in the timing of his resignation. In all the circumstances, I considered it appropriate to look at whether there had been a repudiatory breach of contract as at the date of the claimant’s resignation.[91]In all the material facts and circumstances, my conclusion as to the answer to the question whether the claimant resigned because of conduct by the respondent was ‘partly’. I sought to identify the effective cause of resignation. I found that in the present case, as in Wright, there were multifactorial reasons for the claimant’s resignation. The trigger for the claimant resigning was certainly because he had secured alternative employment which was starting on Monday 12 March 2018. The claimant clearly could not start that new employment while continuing to be employed by the respondent. The reason for the claimant seeking alternative employment was that he no longer wished to work for the respondent following the redundancy selection exercise on which he had been unsuccessful at securing a position as manager. I was satisfied that part of the reason for the claimant’s resignation was that he was redeployed to a sales representative role rather than his previous management role. I attached considerable weight to the fact that the claimant started his new employment on the Monday following his Friday resignation. The claimant was not prepared to resign without first securing alternative employment. I took into account the comments of Langstaff J at paragraph 20 in Wright:- “Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.”[92]My consideration of Wright led me back to carefully consider the principles in Western Excavating (ECC) Ltd -v- Sharp [1978] ICR 221; [1978] QB 761 and whether (per paragraph 2 in Wright) (viii) ‘there has been a breach of contract by the employer that the breach is fundamental or is as it has been put more recently a breach which indicate that the employer altogether abandonments and refuses to perform its side of the contract that the employee has resigned in response to the breach and that before doing so she has not acted so as to affirm the contract notwithstanding the breach.’ In this fact sensitive case, the correct approach was to apply the test in Malik v BCCI [1997] ICR 606 per Lord Steyn at paragraph 56, where the obligation is expressed as being "the employer shall 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". I considered it important to consider the chronology of events. I considered that it was important to identify the conduct by the respondent which contributed to the claimant’s decision to accept the offer of alternative employment. (i) For the reasons set out above, I did not accept the claimant’s version of events in respect of the matters relied upon. On the findings in fact, t respondent’s conduct, even on a cumulative basis, was not calculated and / or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. It was not conduct which was in fundamental breach of the contract of employment, on a cumulative basis or otherwise. At the time of the claimant’s resignation the respondent had not acted in material breach of contract. The history as set out in the findings in fact did not constitute a material breach of contract entitling the claimant to resign. The actions of the respondent are those of a reasonable employer seeking to manage a workforce reduction process and to retain the claimant in a suitable role. Crucially, the findings in fact support the position that the respondent was seeking to maintain their employment relationship with the claimant. On my findings in fact, at the time of the claimant’s acceptance of the offer the respondent had not acted in material breach of contract. I analysed this on the basis of the cumulative events and last straw relied upon by the claimant as being a breach of the implied term of trust and confidence. (j) I recognised that following Wright there may be a possibility of there being two or more reasons for the claimant acting as he did in resigning. I found that the events leading up to the claimant’s resignation played a part in the claimant’s decision to resign, but crucially that that conduct was not in fundamental breach of the contract of employment. I concluded that the reason for the claimant’s resignation was he had accepted alternative employment. I attached considerable weight to the request for a reference for the claimant (referred to as a ‘former employee’) was made prior to the claimant’s resignation and the fact that the start date of the claimant’s new employment was the Monday following his Friday resignation, and in circumstances where the claimant had been seeking to first secure a termination payment from the respondent. (k) The claimant could have accepted a payment on termination of his employment with the respondent when it was offered to him. He elected not to do so. The respondent took steps which were consistent with their position that they wished to retain the claimant within the business, in the position as Digital Sales Representative. Significantly, they agreed to retain the claimant in that role at a salary commensurate with his salary as a manager. They did not allocate him to a territory which was unfair or where he could not reasonably expect to earn an appropriate level of commission. To do so would have been contrary to the business’ interests. The claimant chose not to accept the termination payment offered to him at the time it was available. That indicates that the claimant did not consider that at that time circumstances were such that he could no longer continue in his employment with the respondent. That is contrary to the claimant’s position that Fran Manzanero‘s conduct toward the claimant at the meeting on 27 November 2017 was conduct which was in material breach of contract which would have entitled the claimant to resign. It was significant that immediately prior to the claimant resigning he sought to have that termination offer reinstated. The claimant acted on the basis that he wished to ‘have his cake and eat it’ i.e. he wished to move to the alternative employment which he had then secured and also take the termination payment which was previously on offer to him. That offer had expired and was no longer open for acceptance by the claimant. The claimant resigned because he had secured alternative employment and was starting that employment on Monday 12 March 2018. The claimant had not resigned without first securing alternative employment. I appreciated the personal and financial reasons for that, but that does not entitle the claimant to resign without notice in terms of the ERA section 95(1)(c).[93]The next issue identified for my determination was:- (iv) Did the claimant resign because by 9th March 2018 he had accepted an offer of alternative employment?[94]The claimant had begun to look for alternative employment as an alternative to continuing in a sales role with the respondent because he was unsuccessful in the redundancy selection process. The claimant resigned because by 9th March 2018 he had accepted an offer of alternative employment. In my conclusions, I took into account that following Wright there may be two or more reasons for resignation. The events leading up to the claimant’s resignation, as set out in the findings in fact, did play a part in the claimant’s decision to resign, but crucially there was no conduct that was in fundamental breach of the contract of employment.[95]The next issue identified for my determination was:- (v) Was the claimant dismissed by the respondent?[96]There was no alternative (esto) argument for the respondent that the claimant was dismissed and that that dismissal was a fair dismissal. The claimant resigned. On my findings in fact, that resignation was not in circumstances which amounted to a dismissal in terms of ERA section 95 (1)(c).[97]The next issue identified for my determination was:- (vi) If the claimant was dismissed by the respondent, was that dismissal by reason of his conduct or for some other substantial reason?[98]On the basis of my determination on the previous issues, that issue did not fall for determination.[99]The next issue identified for my determination was:- (vii) If the claimant was unfairly constructively dismissed to what compensation is he entitled?[100]On the basis of my determination on the previous issues, that issue did not fall for determination.[101]On the basis of my assessment of the documentary evidence and the credibility and reliability of the witnesses’ evidence before me, I concluded that there was no conduct by the respondent which was calculated and / or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, as relied upon by the claimant. For that reason, the claimant's claim for constructive dismissal does not succeed and is dismissed.