Mr D Marcinkiewicz v Young & Co.’s Brewery plc: 6002727/2024

EMPLOYMENT TRIBUNALS

Case No 6002727/2024

Between

Mr D MarcinkiewiczClaimant

Young & Co.’s Brewery plcRespondent

Before

Employment Judge Bradford

In person for claimant

Mr R Hignett (instructed by counsel) for respondent

Date 20 February 2026

JUDGMENT

[1]The Claimant’s complaint of whistleblowing detriment brought under Part V Employment Rights Act 1996 is not well-founded and is dismissed.

[2]The Claimant’s complaint of automatically unfair constructive dismissal brought under Part X Employment Rights Act 1996 is not well-founded and is dismissed.

[3]The Claimant’s complaint of constructive dismissal brought under Part X Employment Rights Act 1996 is not well-founded and is dismissed.

REASONS

[1]In this case the claimant Mr Marcinkiewicz claims that he made a number of Pubic Interest Disclosures (PIDs) and that he was subjected to detriments as a consequence. He also claims he has been constructively dismissed, and that this was automatically unfair as the principal reason was because he had made one or more protected disclosures. In the alternative he claims he was constructively dismissed as the Respondent did a number of things which either separately or together amounted to a repudiatory breach of contract, in response to which he resigned.

[2]The respondent contends that no PIDs were made, or if they were, any asserted detriment was not causally linked. It’s position is that there was no dismissal, the Claimant having resigned. However, if the Tribunal finds that the Claimant was dismissed, then the Respondent’s position is that the reason for the dismissal was misconduct.

[3]I have heard from the claimant, and for the respondent I have heard from Mr Alan Trapp, Operations Manager and Miss Penny Spence, HR Operations Support Manager. Mr Trapp gave evidence relating to the Claimant’s asserted disclosures, his grievance, and the events that took place during his employment. Miss Spence referenced a number of the Respondent’s procedures, but she had no direct involvement in the matters that are the subject of the claim.

[4]A case management hearing took place on 27 March 2025 where the issues to be determined at the final hearing were discussed and recorded in a List of Issues. At the commencement of the hearing, I raised with the parties that the Claimant’s s44 health and safety detriment complaint was not included within that, nor was it dismissed on withdrawal as some of his other original complaints were. Having heard submissions from the parties, I determined that this hearing would not be able to proceed at this time if that complaint were to be heard, as the Respondent was not able to call the necessary witness(es), having prepared to deal only with the matters contained in the List of Issues. The s44 complaint relied on the same disclosures and detriments as the s47B complaint. Further, it was far from clear that the Claimant fell within s44(1)(c). As such, it was agreed that the matters to be determined were those contained in the List of Issues. The Respondent did not seek to take any time limit points, and as such, the issues for determination were: 2. Protected disclosure (‘whistle blowing’)2.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The claimant claims he made the following qualifying disclosures. The Tribunal will decide:2.1.1 What did the claimant say or write? When? To whom? How? The claimant says he made disclosures on these occasions:2.1.1.1 Firstly, on 31 August 2023, the Claimant sent an email to Alan Trapp and Kevin Donald. The respondent admits that this email was sent and received. The email stated: Dear Allan and Kevin, I am concerned with recent events in the White Hart over the last month. It’s becoming increasing difficult to deliver everything safely and with the high standards I expect of myself and my kitchen. It seems to operate the kitchen safely, for example taking in the delivery whilst cooking breakfast is impossible. We have lost one chef and two more have said they don’t want to return from holiday, siting the stress of trying to deliver whilst understaffed in the kitchen. The reduction in hours for the kitchen seems unsustainable and is causing myself high levels of stress and anxiety. Could we please arrange for the three of us to have a sit-down meeting to discuss a way forward.

2.1.1.2 Secondly, on 3 September 2023, the Claimant sent an email to the Kevin Donald. The email stated: Dear Kevin, Further to your email, let me pick up your points in turn; Food Safety Action Plan It is very disappointing personally to fail the audit, it would be very helpful to have another training audit as I wasn’t present for the last one. (And the team working have limited English.) Under Marstons there were daily kitchen checks by the duty manager, this was very helpful in maintaining high standards when I was away is there a similar procedure in Youngs or could we implement one? Food Stock Items Running Out. As you say last week was busier than expected, and we have been having issues with suppliers. (Four items were missing from the last delivery!) The main issue with items being unavailable is the hours given to produce the dishes. With a fresh food menu, its not just about items being in stock but having the time to prepare them. Could we discuss a base rota rather than a percentage, this is how things worked at M&B. This would help massively in keeping all items in stock. Rotas As I said above I think we need to agree a base rota, there is a minimum staffing needed to operate. Also the costs will fluctuate with my work pattern, I’m sure we can deliver a reasonable cost averaged over each period. The current workload in the kitchen is causing high levels of stress across the kitchen team, and has already caused one team member to quit. Two of the others have said they are considering leaving. Menu This is something I need some support with, previously this was all done by head office. It still required a lot of work to implement a menu change, with the current issues with the team I have available I struggle to see how I can fit this in, I’m also not 100% clear on the implementation. Some help from an area chef would be very welcome. Recruitment Could you please confirm current applicants and their expected pay rates.

2.1.1.3 Thirdly, on 18 January 2024, the Claimant sent an email to Alan Trapp. The Respondent admits that this email was sent and received. The email stated as follows: Dear Alan I have returned to work today and I’m very concerned by the standards in the kitchen in my absence. General cleaning standards are very poor with insufficient materials to rectify. I asked Kevin for staff hours to sort out he offered three which is insufficient. The freezers were very untidy and had items frozen in house in contravention of the food safety policy. Kevin said he had been told to do so, I have never experienced freezing of cheese, milk and fresh scallops. Raw meat stored on top of cooked. They were also serving beef carpaccio defrosted from frozen meat. I have attached photos as I want to be clear these are not my standards. Moving forward the kitchen requires a deep clean, which will require significant staff hours and materials. We also need to discard a significant amount of food that has been frozen and stored in correctly, this will have an obvious effect on food stock. I would like an opportunity to discuss this at your earliest convenience.

2.1.1.4 Fourthly, the Claimant alleges that he made had three oral disclosures in verbal discussions with management as follows:2.1.1.4.1 On 12 September 2023, the Claimant met with Alann Trapp and Kevin Donald, and the claimant said: 2.1.1.4.1 that it was not possible to deliver food in accordance with health and safety requirements.

2.1.1.4.2 On 26 January 2024, the Claimant met with Alann Trapp and Sam Barry to discuss his grievance, and the claimant raised again that it was not possible to deliver food in accordance with health and safety requirements.

2.1.1.4.3 On 18 January 2024, the Claimant met with Kevin Donald. The claimant said that there were health and safety problems with the kitchen, e.g. everything was dirty, scallops had been frozen, raw and cooked foods stored incorrectly etc. The claimant sent photos to Kevin Donald and Alann Trapp on the same day to evidence this.

2.1.1.5 The Claimant says that these are qualifying disclosures as the content of his concerns were about practices that were harmful or potentially harmful to the health and safety of the respondent’s customers and/or clients, employees, and visitors of the respondent’s premises, as well as showing that a person had failed, was failing or was likely to fail to comply with any legal obligation.

2.1.1.6 The Respondent admits that the third listed protected disclosure – email of 18 January 2024 – could amount to a protected disclosure, but denies that any of the others set out above amount to a protected disclosure.

2.1.2 Were the disclosures of ‘information’? The Claimant’s position is that the disclosures were of ‘information’. The respondent accepts that the first three alleged protected disclosures were disclosures of ‘information’. Respondent’s case is Claimant’s disclosures lack sufficient factual and specific detail and amount to a generalised allegation or an expression of opinion.

2.1.3 Did the Claimant genuinely he believe the disclosure of information was made in the public interest?

2.1.4 Was that belief objectively reasonable? The claimant’s position is that his belief was reasonable. The respondent’s position was that the Claimant’s belief was not objectively reasonable..

2.1.5 Did the Claimant reasonably believe it tended to show that: a) a person had failed, was failing or was likely to fail to comply with any legal obligation; and/or b) the health or safety of any individual had been, was being or was likely to be endangered.

2.2 If the Claimant made a qualifying disclosure, was a protected disclosure because it was made to the claimant’s employer? The claimant’s position is that the protected disclosure was made to his employer. This is accepted by the Respondent. 3. Detriment (Employment Rights Act 1996 section 47B)

3.1 Did the Respondent do the following things:3.1.1 Hours: From 18 January 2024, Kevin Donald assigned fewer working hours on the online Selma rota to the claimant, and gave more hours to a new junior Sous Chef. The claimant was given 30 hours while the Sous Chef was given 50 hours.

3.1.2 Demotion: From 18 January 2024, Kevin Donald made the junior Sous Chef fully responsible for stock and checking stored food. [This, in the claimant’s view, was a demotion of the Claimant’s position after his whistleblowing. The Claimant believed that the Respondent deliberately removed the Claimant from the duties of stock and checking stored food to stop the claimant from reporting further issues (as those issues were not resolved and were ongoing).]

3.1.3 Accommodation: On 19 January 2024, the Claimant received an email from Kevin Donald to say he was removing the claimant from the accommodation he had stayed in for the last seven years and moving him to different accommodation. He was given two weeks; notice. This accommodation was then assigned to the new junior Sous Chef. The Respondent asked the Claimant to move into a different accommodation that the Claimant says did not meet basic standards of hygiene and safety and/or was of inferior quality in comparison to the existing accommodation. None of the other staff members wanted to be in this particular accommodation, and the Claimant was aware that two staff members, Michael Foskett and Jay McIlwain, had refused to move there. The Claimant believes that this was done after he blew the whistle with the view that the Claimant would leave the job on his own accord. The Respondent’s position is that they moved the Claimant out of his accommodation because they needed someone to live there permanently to operate the fire alarm. The Claimant position is that he could, and would, have given the respondent permission to access the accommodation any time when the claimant was not there.

3.1.4 Disciplinary: From 18 January 2024, the Respondent put the Claimant under a disciplinary investigation for his absence. The Claimant asserts that his sick leave absence was due to the stress arising out of the situation, and that the disciplinary action was taken because of his whistleblowing claim. Respondent’s case is that the Claimant was not subject to a disciplinary investigation because of his absence but because of his conduct in under portioning food to customers.

3.1.5 above are also relied upon as breaches). The Respondent denies committing any repudiatory breach of contract and asserts that all times it acted with reasonable cause.

3.2 By doing the above alleged acts, did the respondent subject the claimant to detriment?

3.3 If so, was it done on the ground that he had made the protected disclosures set out above? 4. Constructive unfair dismissal

4.1 Was the claimant dismissed? The Claimant claims constructive unfair dismissal and/or automatic unfair dismissal on the grounds that he was constructively dismissed because he made protected disclosures. The respondent contends that the claimant was not dismissed but chose to resign in order to avoid a finding of misconduct.

4.2 Did the Respondent commit a repudiatory breach of contract? The claimant claims that the respondent acted in fundamental breach of contract in respect of the implied term of the contract relating to mutual trust and confidence. The claimant alleges a series of actions/inaction and breaches, which are set out in full above (i.e. the detriments relied upon in paragraphs 3.1.1. to

4.3 The Claimant contends that the ‘last straw’ was on the 13 February 2024 when the claimant received the grievance outcome letter, as it demonstrated to him that the Respondent had not taken any of his concerns seriously. His resignation letter followed on 19 February 2024.

4.4 The Tribunal will need to decide:4.4.1 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

4.4.2 Whether it had reasonable and proper cause for doing so.

4.5 Did the Claimant resign because of the breaches? The Tribunal will need to decide whether the breaches were so serious that the Claimant was entitled to treat the contract as being at an end.

4.6 Did the Claimant tarry before resigning and affirm the contract? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.

4.7 If the Claimant was dismissed, was it because he had made protected disclosures (i.e. automatic unfair dismissal)?

4.8 In the event that there was a constructive dismissal, was it otherwise fair within the meaning of s98(4) of the Act?

4.9 In the event of any finding of unfairness: a) would the claimant have been fairly dismissed in any event; and b) did the claimant’s conduct contribute to his dismissal?

[5]The background facts are largely undisputed. The Claimant had been employed since 2018 by Marstons Brewery, and was the Head Chef in the White Hart pub in Chippenham. He had on-site accommodation and his shift pattern was that he worked his month’s hours over 2 weeks, then returned to his home country, Poland, for 2 weeks. This shift pattern and all the other contractual terms of his employment were honoured by Young and Co.’s Brewery (Youngs) when they took over the pub in July 2023 and the staff transferred in accordance with the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations).

[6]There were nevertheless some differences in the ways Youngs worked, and the expectations on staff. For example, in terms of the menus, Youngs served more fresh food, and the process for ordering and accounting for stock were different. There appears to have been an expectation that the kitchen would be run, certainly at quieter times, with fewer staff than had been the case under Marstons.

[7]There was naturally a transition period, during which Youngs sent in senior members of their team to train the White Hart team and to provide constructive feedback. One such person was Miss Spence, who visited on 22 August and 12 September 2023. On the first occasion the Claimant was not working. Miss Spence tasked Mr Donald with various matters which in her view required improvement. Some of these related to the kitchen, others were more general. When she returned on 12 September she noted that little progress had been made by Mr Donald.

[8]Miss Spence met the Claimant on her second visit and it seems that the two did not get on. Miss Spence took a dislike to the Claimant, and when it was subsequently reported to her that staff were reducing the size of burgers on the Claimant’s instruction (he says in response to concerns that his staff were not cooking them sufficiently), Miss Spence speculated that the Claimant was driving a small amount of burger meat, and potentially other stock, back to Poland. The statement of Miss Spence was as much opinion as factual evidence. I gave no weight to her opinions as she was not an expert witness, and because there was a lack of supporting evidence. In any event, those matters are not relevant to the issues I need to determine.

[9]The Claimant and his kitchen staff struggled with the transition to Youngs ways of working. As a result the Claimant emailed his managers, Mr Donald, General Manager, and the Operations Manager Mr Trapp on 31 August 2023 asking for a meeting to discuss difficulties and stress caused by cooking breakfast at the same time as taking deliveries. This concern had been reported to him by his sous chef, who left shortly afterwards. The Claimant says this email was a PID.

[10]In late August a training audit took place, carried out by an external company. The Claimant was not at work that week. Out of date food was found in the fridge. Mr Donald emailed the Claimant on 1 September 2023 with the outcome of the audit and other areas for improvement. The Claimant replied to the issues raised by Mr Donald on 3 September and he says this was his second PID.

[11]A meeting took place on 12 September 2023 between the Claimant, Mr Donald and Mr Trapp, as requested in Claimant’s email of 31 August. The Claimant’s concerns about staffing were discussed and there was some agreement reached around additional staff hours allocated to the kitchen to try to ally the Claimant’s concerns. The Claimant says his primary concern about the difficulty of cooking breakfast and taking deliveries was not addressed. He says he made a third disclosure during this meeting, namely that it was not possible to deliver food in accordance with health and safety requirements.

[12]The Claimant then went on sick leave on 18 September 2023. His first sick note did not give a reason for his absence. Subsequent sick certificates referenced stress. This in due course led to Mr Donald saying he did not know why the Claimant was off sick, in circumstances where the Claimant was of the view that Mr Donald should have been aware that workplace stress was the cause.

[13]Prior to his sickness absence, a concern was raised, initially by Mr Donald, who reported to Miss Spence, that kitchen staff were making burgers smaller. It was reported by the kitchen assistant in question that this was on the instruction of the Claimant. This may have explained part of the stock discrepancy noted by Miss Spence. There was concern because the menu advertised a burger of a particular weight. The Claimant was asked to attend a meeting about stock control in October, when off sick. He declined on medical advice. The investigation into this matter was therefore postponed until his return to work on 18 January 2024.

[14]On that day the Claimant returned and found the kitchen to be unclean and he also found meat and other products incorrectly stored in the freezer. He reported this to both Mr Donald and Mr Trapp, and relies on these reports as PIDs.

[15]The Claimant was also informed that day that he was required to move accommodation He was also informed that the Sous Chef would continue to be responsible for stock checks for a period. Further, having been informed by email prior to his return that his hours were being reduced due to low levels of trade, the Claimant discovered that the Sous Chef retained his contracted weekly hours of 48.

[16]The Claimant considered these things to be detriments. He commenced a further period of sickness absence the following day, 19 January, and did not return to work.

[17]The Claimant raised a grievance on 19 January 2024 against Mr Donald. That was heard on 26 January and partially upheld. (Aspects upheld were that Mr Donald did not know the Claimant stress was work related; that his reduction in hours relative to the position of the Sous Chef and this person retaining duties such as stock checks could have been more clearly communicated. It was agreed that holiday accrual would continue as it had with Marstons). Sick pay and holiday accrual no longer form part of the Claimant complaints to the Tribunal, the Claimant accepting that they were resolved.

[18]On 13 February 2024 the Claimant received the outcome of his grievance and on 19 February 2024 he resigned. He did not exercise his right of appeal. Law Protected disclosures and detriment

[19]Under section 43A of the Employment Rights Act 1996 (‘the Act) a protected disclosure is a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. Section 43B(1) provides that 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,

(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, or is likely to be deliberately concealed.

[20]Under Section 43C(1) a qualifying disclosure becomes a protected disclosure if it is made to the employer, among others.

[21]Under section 47B of the Act, 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 has made a protected disclosure.

[22]Under section 48(2) of the Act, it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

[23]Under section 103A of the Act, an employee is to be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[24]The statutory framework and case law concerning protected disclosures was helpfully summarised by HHJ Eady QC in Parsons v Airplus International Limited

UKEAT/0111/17

from paragraph 23: “[23] As to whether or not a disclosure is a protected disclosure, the following points can be made - This is a matter to be determined objectively; see paragraph 80 of Beatt v Croydon Health Services NHS Trust

[2017] IRLR 748

CA. More than one communication might need to be considered together to answer the question whether a protected disclosure has been made; Norbrook Laboratories (GB) Ltd v Shaw

[2014] ICR 540

EAT. The disclosure has to be of information, not simply the making of an accusation or statement of opinion; Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] ICR 325

EAT. That said, an accusation or statement of opinion may include or be made alongside a disclosure of information: the answer will be fact sensitive but the question for the ET is clear: has there been a disclosure of information; Kilraine v London Borough of Wandsworth

[2016] IRLR 422

EAT. 25. [24] “As for the words “in the public interest”, inserted into section 43B(1) of the ERA by the [Enterprise and Regulatory Reform Act] 2013 Act, this phrase was intended to reverse the effect of Parkins v Sodexho Ltd

[2002] IRLR 109

EAT, in which it was held that a breach of legal obligation owed by an employer to an employee under their own contract could constitute a protected disclosure. The public interest requirement does not mean, however, that a disclosure ceases to qualify for protection simply because it may also be made in the worker’s own self-interest; see Chesterton Global Ltd (t/a Chestertons) and Anor v Nurmohamed

[2017] IRLR 837

CA. 26. [25] “More generally, in Chesterton, Underhill LJ offered the following guidance. First, as to the approach that has to be taken in general: “[27] …The tribunal has to ask(a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and

(b) whether, if so, that belief was reasonable. 27. [28] “Second, and hardly moving much further from the obvious, element (b) in that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured… All that matters is that the tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking - that is indeed often difficult to avoid - but only that that view is not as such determinative. 28. [29] “Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable. 29. [30] “Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at paragraph 17 above, the new ss49(6A) and 103(6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker’s motivation - the phrase “in the belief” is not the same as “motivated by the belief”; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it.”

[30]Where the disclosure relates to something that is in the worker’s own interest: (again per Underhill LJ in Chesterton) [37] “… Where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. Mr Reade’s example of doctors’ hours is particularly obvious, but there may be other kinds of case where it may reasonably be thought that such a disclosure was in the public interest. The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case …”

[31]Chesterton Global Ltd (t/a Chestertons) and Anor v Nurmohamed [2017] EWCA Civ IDS 1077 suggested that the following four factors might be relevant – the numbers in the group whose interest the disclosure served; the nature of the interest affected and the extent to which they are affected by the wrongdoing disclosed; the nature of the wrongdoing disclosed; and the identity of the alleged wrongdoer.

[32]The statutory framework and case law concerning protected disclosures was also summarised by HHJ Tayler in Martin v London Borough of Southwark (1) and the Governing Body of Evelina School

UKEAT/0239/20/JOJ

. He referred to the dicta of HHJ Auerbach in Williams v Michelle Brown AM

UKEAT/0044/19

/00 at para 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 is 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.”

[33]Dismissal as Detriment: S47B(2) of the Act states that that the right not to be subjected to a detriment on the ground of a protected disclosure does not apply where the worker is an employee and the detriment amounts to dismissal. This was confirmed by the Court of Appeal in Melia v Magna Kansei Limited

[2005] EWCA Civ 1547

. Chadwick LJ stated at paragraph 15: “Parliament did not intend to confer a right under Part V of the 1996 Act for the protection of whistleblowers in circumstances where the worker (being an employee) would have a right under Part X of that Act in relation to the same loss or detriment.”

[34]Detriment otherwise is to be interpreted widely: see Warburton v the Chief Constable of Northamptonshire Police

[2022] EAT 42

: it is not necessary to establish any physical or economic consequence. Although the test is framed by reference to a reasonable worker, it is not a wholly objective test. It is enough that a reasonable worker might take such a view. This means that the answer to the question cannot be found only in the view taken by the ET itself. The ET might be of one view, and be perfectly reasonable in that view, but if a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances, it was to his detriment, the test is satisfied. It should not, therefore, be particularly difficult to establish a detriment for these purposes.

[35]In Osipov v Timis [2017] EAT, Simler P summarised the proper approach to inference drawing and the burden of proof when considering causation as follows (at paragraph 115): “(a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made. (b) By virtue of s.48(2) ERA 1996, the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them … (c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.”

[36]As a result, the burden remains on the Claimant to prove facts from which an inference can be drawn that the protected disclosure was a cause of the detrimental treatment. At that point, the burden shifts to the employer to show the ground on which the detrimental act was done. Constructive dismissal

[37]In accordance with s95 of the Act, an employee will be considered dismissed where, among other things: the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[38]This is commonly termed constructive dismissal. The ‘test’ was articulated In Western Excavating (ECC) Ltd v Sharp [1978] Q.B. 761, Lord Denning M.R. stated: An employee is entitled to treat himself as constructively dismissed 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.

[39]There must be a breach of contract by the employer, which is sufficiently serious to justify the employee resigning (a repudiatory breach). The employee must resign, at least in part, in response to the breach, and must not delay too long before doing so (or will be deemed to have accepted the breach and affirmed the contract).

[40]The breach may be of an express or implied term of the contract. Guidance was given as to the implied term of trust and confidence by the House of Lords in Malik v Bank of Credit and Commerce International SA (in compulsory liquidation)

1997 ICR 606

, HL: The duty is that neither party will, 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. Application of law to facts

[41]I begin by dealing with the Claimant’s asserted protected disclosures in chronological order and the associated detriments he claims. I go on to consider whether he was constructively dismissed; whether there was a repudiatory breach of contract by the Respondent which played a part in his decision to resign. If the principle reason for the constructive dismissal was that the Claimant had made one or more protected disclosures, his dismissal will have been automatically unfair. If that was not the case, I will go on to consider whether other matters referenced by the Claimant in his resignation letter amount to a repudiatory breach of contract. Protected disclosures PID 1

[42]On 31 August 2024 the C sent an email to Alan Trapp and Kevin Donald: Dear Allan and Kevin, I am concerned with recent events in the White Hart over the last month. It’s becoming increasing difficult to deliver everything safely and with the high standards I expect of myself and my kitchen. It seems to operate the kitchen safely, for example taking in the delivery whilst cooking breakfast is impossible. We have lost one chef and two more have said they don’t want to return from holiday, siting the stress of trying to deliver whilst understaffed in the kitchen. The reduction in hours for the kitchen seems unsustainable and is causing myself high levels of stress and anxiety. Could we please arrange for the three of us to have a sit down meeting to discuss a way forward.

[43]The Claimant’s evidence was that he had spoken to Marek, his Sous Chef when he returned from Poland on 30 August. Marek had raised the stress he felt when he had to take deliveries at the same time as cooking breakfast. Marek had told the Claimant he did not want to continue working at the White Hart. The Claimant had said he would raise the matter with Mr Donald.

[44]Mr Trapp’s evidence was that he wondered what had made the Claimant email when he did, having just returned from two weeks in Poland. He considered that the Claimant may have been made aware of the matters identified in the recent audit and those raised by Miss Spence on her visit on 22 August. Mr Trapp did not consider that the Claimant was making a protected disclosure. In that event, he would have directed the Claimant to the Whistleblowing policy.

[45]As to whether this was a PID, I find that this was a disclosure of information; the Claimant raises that taking deliveries whilst cooking breakfast was impossible, that the kitchen was understaffed, and this was causing high levels of stress.

[46]Did the Claimant believe the disclosure was in the public interest? The Claimant’s case is that his disclosures raised food safety and hygiene risks that could endanger customers and staff. There is no mention of such issues in the email. I do not find that these matters were raised, or that the Claimant believed the disclosure was made in the public interest. Rather I find that it was sent due to the concerns that his deputy, Marek, had expressed. He wanted more than one person in the kitchen to cook breakfast on delivery days. It was a staffing issue, a matter that only the Claimant and those working for him would be affected by. There was no evidence that the Claimant, at the time, believed there were broader implications.

[47]In the event that I am wrong as to the Claimant’s belief, I find that any belief that this email was sent in the public interest was not reasonably held. The Claimant requested a meeting to discuss staffing of the kitchen. This was an issue between the staff and the employer, a private workplace matter. In the absence of any suggestion in the email of any negative impact on customers or any food safety issues, any belief that the public interest was engaged was not reasonably held.

[48]Finally, there is no suggestion, on a fair reading of the email, of a belief that it tended to show a failing in one of the relevant areas set out at s43B, which include endangerment of health or safety.

[49]This email was not a protected disclosure. PID 2

[50]The Claimant also relies on his email sent on 3 September 2023 to Kevin Donald: Dear Kevin, Further to your email, let me pick up your points in turn; Food Safety Action Plan It is very disappointing personally to fail the audit, it would be very helpful to have another training audit as I wasn’t present for the last one. (And the team working have limited English.) Under Marstons there were daily kitchen checks by the duty manager, this was very helpful in maintaining high standards when I was away is there a similar procedure in Youngs or could we implement one? Food Stock Items Running Out. As you say last week was busier than expected, and we have been having issues with suppliers. (Four items were missing from the last delivery!) The main issue with items being unavailable is the hours given to produce the dishes. With a fresh food menu, its not just about items being in stock but having the time to prepare them. Could we discuss a base rota rather than a percentage, this is how things worked at M&B. This would help massively in keeping all items in stock. Rotas As I said above I think we need to agree a base rota, there is a minimum staffing needed to operate. Also the costs will fluctuate with my work pattern, I’m sure we can deliver a reasonable cost averaged over each period. The current workload in the kitchen is causing high levels of stress across the kitchen team, and has already caused one team member to quit. Two of the others have said they are considering leaving. Menu This is something I need some support with, previously this was all done by head office. It still required a lot of work to implement a menu change, with the current issues with the team I have available I struggle to see how I can fit this in, I’m also not 100% clear on the implementation. Some help from an area chef would be very welcome. Recruitment Could you please confirm current applicants and their expected pay rates.

[51]The Claimant confirmed in evidence that this was in reply to an email from Kevin Donald sent on 1 September in which Mr Donald asked the Claimant about the four areas given in the headings above. A food safety action plan was required because the training audit had identified, among other things, out of date food, which had been re-labelled. When it was put to the Claimant that his email did not reference safety or customers or hygiene standards, such that no-one reading the email would gain the impression that he was talking about hazards to customers, the Claimant replied; “in my mind I disagree”. He acknowledged that he was not aware of the term ‘whistleblowing’ at the time he wrote the email; he said he was raising matters which needed to be resolved.

[52]Although the email was not sent to Mr Trapp at the time, he set out in his statement his reading of the email (because Mr Donald is not a witness, having left the Respondent’s employment). Mr Trapp noted the same headings were used as in the email from Mr Donald, and although the Claimant made suggestions for improvement, the email in Mr Trapp’s view did not raise any new information. The concerns related to the internal management of the kitchen.

[53]Given that the email responds directly to matters raised by Mr Donald, I do not find that it contained a disclosure of information. The email requests support from Mr Donald with daily food checks, an internal operational matter. The Claimant accepted in evidence that food stocks running out were not relevant to his asserted PID. His evidence was that his suggestion for a base rota, a minimum number of staff, was a safety issue. He said a minimum number of staff was needed for the kitchen to operate safely. However the email does not use the word safe/safely. This may have been implicit to the Claimant, but no such concerns can be ascertained on an objective reading. For example, a minimum number of staff could be to reduce individual workload, and in turn stress. There is no necessary connection to safety.

[54]I find that this email related to the day to day running of the kitchen and did not disclose any information or raise safety matters. I do not need to go on to consider the Claimant’s beliefs about the public interest or relevant failings, in view of this finding. The email was not a protected disclosure. PID 3

[55]As requested by the Claimant in his email of 31 August, a meeting was held between the Claimant, Mr Donald and Mr Trapp on 12 September 2023. The Claimant says that at this meeting he said that it was not possible to deliver food in accordance with health and safety requirements.

[56]The Claimant gave additional evidence in chief. He stated that he said at the meeting they talked about his concern about deliveries. He had said that it was impossible [to cook breakfast and take deliveries]. There was a discussion about additional staff hours, but that was not written down. It was left to Mr Donald and the Claimant to find a solution as Mr Donald managed the labour budget.

[57]Mr Trapp sent 2 emails by way of follow up and as a record of what took place, one to Mr Donald on 12 September and a second on 15 September to the Claimant and Mr Donald. Neither of these reference the Claimant making a statement along the lines he asserts. There is a section in the email of 15 September relating to working hours and the kitchen. This includes a comparison with similar Young’s businesses, and gives the number of staff hours in the kitchen and volume (in £s) of food sales. I find these emails more reliable than the memory of witnesses as they were sent very close in time to the meeting in question.

[58]Mr Trapp’s evidence was that the Claimant’s concerns about his team’s capability to meet the Respondent’s standards were discussed during the meeting. He also says that the Claimant raised concerns about being able to deliver with the manpower that the budget allowed for. Mr Trapp did not recall the Claimant making reference to health and safety requirements. His understanding from the meeting was that the Claimant was completing all the compliance checks in view of the matters identified by the training audit and by Miss Spence, which were taking a time, but not that the Claimant considered health or safety or food hygiene standards were being compromised.

[59]The Claimant did not respond to Mr Trapp’s email. There is nothing within the evidence that leads me to find that the Claimant said the words he now relies on. Even when he gave additional evidence in chief, he did not reference those words, but that he had said “it” was impossible. I understood this as a reference to one chef cooking and taking deliveries. I do not find that concerns about health and safety were raised. I find that the Claimant may have felt he implicitly raised health and safety because to his mind this was linked to understaffing. In reaching this conclusion I have taken into account that the Claimant maintained he raised safety issues in his email of 3 September, but that is not apparent on an objective reading of the words written. As such, I do not find that the Claimant made a protected disclosure at the meeting on 12 September. PID 4

[60]The Claimant went on sick leave from 18 September 2023 until 11 January 2024, with his first day back at work (in view of his shift pattern) being 18 January 2024.

[61]Immediately prior to his absence, it had come to light that burgers were having some of the meat sliced off, and hence were smaller than the advertised size. This was first raised by Mr Donald with Miss Spence on 15 September 2024. There was a further report of this practice in December 2023. On each occasion, the kitchen assistant had said that they were following an instruction from the Claimant. As such, an investigation meeting was held by Mr Donald, with the Claimant, on his return to work on 18 January.

[62]The Claimant’s case is that during this meeting he said that there were health and safety problems with the kitchen, for example everything was dirty, scallops had been frozen, raw and cooked foods had been stored incorrectly. The Claimant sent photos to Mr Trapp (included in the bundle) of these things. He says this was a PID.

[63]These matters were not referenced in the note of the meeting. However, the note is two sides of A4 and the meeting lasted 50 minutes. As, such, I do not find the note to be a full reflection of the matters discussed.

[64]I find that there was a discussion about the state of the kitchen between the Claimant and Mr Donald, because in his email to Mr Trapp, about the same matters (below as PID 5), the Claimant says that he asked Mr Donald for staff hours to sort out the kitchen, and only three were offered. The Claimant also says that when he said that food had been frozen in contravention of the food safety policy, Mr Donald’s reply was that he had been told to do that.

[65]Mr Donald did not give a witness statement or attend the Tribunal. In view of the Claimant’s obvious concern as to the state of the kitchen, as reflected in his email to Mr Trapp of the same date, along with evidence of a conversation about the matters with Mr Donald, I find that the Claimant did raise the matters with Mr Donald as he asserts. I find that the matters raised orally were substantially similar to those set out in the email to Mr Trapp (below). This is because I accept that the Claimant was shocked by the state of the kitchen on his return to work on 18 January 2024.

[66]I am satisfied that this was a disclosure of information, as it is apparent from what the Claimant reports to Mr Trapp, that Mr Donald had little or no idea about food safety and the associated policy. I find that the Claimant raised that freezing certain foods, and the way cooked and uncooked food was frozen next to each other, was unsafe. I make this finding in view of Mr Donald’s response to the Claimant, as reported in the Claimant’s contemporaneous email to Mr Trapp.

[67]This was food that would be served to customers of the pub. I am satisfied that the Claimant believed the disclosure was made in the public interest given his reference (in his email raising the same concern) to the need to discard food. He is saying that the affected food could not be served to customers. In his statement he says that if these matters were not addressed customers’ health could be put at risk. I am satisfied that this belief was reasonable given the inherent health risks in serving meat that has been frozen as a raw meat dish, and cooked food that is likely to have been in contact with bacteria from raw meat.

[68]As to whether the Claimant believed that his email tended to show a relevant failure, I find he did. He has, within his Particulars of Claim, set out the food safety laws that he says were breached by these practices. He says in his statement that as a chef he had responsibility for hygiene and Health and Ssfety standards and he had an obligation to raise these matters. In view of my finding as to why the Claimant believed the disclosure was in the public interest, I am further satisfied that the Claimant genuinely believed that the disclosure tended to show both a failure to comply with a legal obligation and that the health of the public would be endangered if action were not taken. Further, I find his belief was reasonably held because it is self-evident that selling food that has been incorrectly stored carries a real risk to the health of anyone who may consume it. Food safety laws are in place to mitigate against such risks.

[69]I find that the Claimant made a protected disclosure to Mr Donald verbally on 18 January 2024. PID 5

[70]Next the Claimant relies on his email to Mr Trapp of 18 January 2024 about the same matters. This reads: Dear Alan I have returned to work today and I’m very concerned by the standards in the kitchen in my absence. General cleaning standards are very poor with insufficient materials to rectify. I asked Kevin for staff hours to sort out he offered three which is insufficient. The freezers were very untidy and had items frozen in house in contravention of the food safety policy. Kevin said he had been told to do so, i have never experienced freezing of cheese, milk and fresh scallops. Raw meat stored on top of cooked. They were also serving beef carpaccio defrosted from frozen meat. I have attached photos as I want to be clear these are not my standards Moving forward the kitchen requires a deep clean, which will require significant staff hours and materials. We also need to discard a significant amount of food that has been frozen and stored in correctly, this will have an obvious effect on food stock. I would an opportunity to discuss this with at your earliest convenience.

[71]Mr Trapp’s reply was that these were issues for the Claimant to resolve with Mr Donald as General Manager. They were day to day issues, resolvable in-house. Mr Trapp had made a similar point to Mr Donald after the meeting on 12 September. His follow up email to Mr Donald included: “I am unsure if you really needed me there to hold that meeting, Dawid works for you, this [sic] issues could have/should have been resolved without my intervention.” Mr Trapp mentions in his statement that Mr Donald’s performance was not at a level he would have liked, and I find that Mr Trapp’s response here was in the context of a concern that too much reliance was being placed on him first by Mr Donald, and in turn by the Claimant.

[72]In evidence Mr Trapp made clear that the Claimant was not being held responsible for the issues he raised, but that as Head Chef it was for him to resolve them. I find that Mr Trapp’s email did not in any way seek to blame the Claimant, but made the point that as Head Chef, resolving them was within his remit.

[73]Under cross examination it was put to the Claimant that he did not have customers in mind, and sent the email because he was concerned that he would be blamed. The Claimant’s response was that his reference to needed in discard food meant that he was thinking about customers. I accept his evidence here. He also says in his email that a raw beef dish was being served from frozen beef which had been defrosted. I accept the Claimant’s evidence to the effect that food safety, and hence customer safety concerns were inherent in the matters raised, and were so obvious or would have been so obvious to fellow professionals that these things did not need to be explicitly stated. On an objective reading of the email, it is expressing specific concerns about food safety, in an establishment which serves food to members of the public.

[74]This was a disclosure of information, and indeed the Responent accepts that. It is specific: photos of the offending items were attached. I am satisfied that the Claimant believed the disclosure was made in the public interest and tended to show relevant failings, and that both these beliefs were reasonable, for the reasons I have given in relation to PID 4.

[75]I find that the Claimant’s email of 18 January 2024 to Mr Trapp was a PID. PID 6

[76]Finally, the Claimant relies on a disclosure he says he made at the grievance investigation meeting with Mr Trapp and Sam Barry on 26 January 2024. He says he raised that it was not possible to deliver food in accordance with health and safety requirements.

[77]The note of the meeting records: Point 8 regarding lack of cleanliness in kitchen, not being given hours to clean it. DM says when he returned to work, kitchen was disgusting, no deep cleaning done in 4 months, oil in canopy, frozen meat next to raw meat, says he sent some photos of this to AT. Says there was an issue when he froze a small amount of food. He was told off for freezing fresh food as not Young’s standards. Says this is double standards. He was told it was because an Agency Chef was there, but he says that was a Head Chef. IS clarifies points around expectations around freezing food. Saw frozen cheese. Says he raised his concerns. Was treated differently to when he did it. Says he sent the photos to AT and was shocked that he replied that it was up to him and KD to sort out. Says it was perfect when he left.

[78]Mr Trapp says that in response to his question about what had caused the Claimant’s sickness absence, the Claimant replied he felt pressure to deliver with fewer staff. This is reflected in the meeting note which reads: AT asks what made him go sick. DM says the pressure put on him to deliver with less people. Talks about the pressures put on him to deliver menu with fewer people. He asked to deliver a smaller menu wasn’t allowed.”

[79]Mr Trapp did not recall the Claimant making the disclosure he now asserts. There is no reference to it anywhere in the meeting note.

[80]There is no evidence that at the time the Claimant challenged the accuracy of the meeting note. His grievance was about not being given enough hours by Mr Donald to get the kitchen cleaned. There is no evidence upon which I can find that the Claimant made the statement he now relies on as a PID in that meeting. I do not find that the Claimant said these words and accordingly I do not find that a PID was made. Detriments

[81]Having found that two protected disclosures were made on 18 January 2024, I move to consider whether the Claimant was subjected to one or more detriments as a consequence. ‘Detriment’ is a broad concept. If a reasonable worker might regard the treatment as a detriment, and the claimant genuinely does so, that is sufficient to establish there has been a detriment. There does not necessarily need to be any physical or economic consequences. An unjustified sense of grievance cannot amount to a detriment (Derbyshire v St Helen’s MBC

[2007] ICR 841

). That said, as noted above, it is for the Claimant to prove facts from which an inference can be drawn that the protected disclosure was a cause of the detrimental treatment. Detriment 1 – reduction in working hours which were less than the Sous Chef

[82]The Claimant, in his statement, says that he was given 30 hours/week (on his return to work on 18 January 2024) and his junior Sous Chef had around 50 hours.

[83]The Claimant accepted in evidence that it is customary in the hospitality industry to place staff on short working hours when there is a drop in trade, particularly in the period after Christmas. Indeed the Claimant was still working under the terms and conditions of his contract with Marstons, which expressly provided for this. (the Young’s contract contained and equivalent provision).

[84]Prior to the Claimant’s return, and hence his PIDs made on 18 January, Mr Donald wrote the Claimant on 10 January to say that due to low levels of trade, the Respondent was exercising its contractual right to reduce his hours. It was anticipated he would work 40 rather than 80 hours/week.

[85]The grievance investigation notes record that the Sous Chef was on a salaried 48 hour contract. Mr Donald had therefore made the decision to continue to give him those hours, and reduce the hours of the remainder of the team, including the Claimant.

[86]I can see why the Claimant considered this a detriment given his seniority. Equally I appreciate the Respondent’s reason for not reducing the hours of the Sous Chef. The Claimant had been offered a salaried contract previously and declined it. However, this detriment complaint falls away at the causation stage, because the decision to reduce the Claimant’s hours, and maintain those of the Sous Chef, had been made before he made his PIDs. As such, he cannot demonstrate that the reason for the potentially detrimental treatment was the PIDs. Detriment 2 – demotion – the Sous Chef continued to be responsible for stock checks and stored food

[87]It is accepted by the Respondent that these responsibilities were given to the Sous Chef whilst the Claimant was on sick leave. The Respondent says these responsibilities had to be allocated to someone in the Claimant’s absence.

[88]The Claimant says he perceived the decision to leave those duties with the Sous Chef as a punishment and that it was done to prevent him raising further food safety problems.

[89]Mr Trapp in his statement says that it was expected that the Claimant would gradually resume those duties following his return. However, the plan had been that the Sous Chef would continue with these duties initially, to allow the Claimant a period of adjustment following his return. It was acknowledged in the grievance outcome letter that this was not clearly communicated to the Claimant.

[90]This decision must have been made prior to the Claimant’s return on 18 January, as he was informed of it on that date. Therefore I do not find that the Claimant has proved facts from which it can be inferred that his PIDs of 18 January 2024 had any bearing on this decision. Detriment 3 – the Claimant was given notice to move to different accommodation

[91]The Claimant says in his statement that he received an email from Mr Donald on 19 January informing him that his accommodation was to change. The reason for this had been explained fully to the Claimant in the grievance outcome. In his statement he says he disagrees with the Respondent’s view and continues to believe this decision was a whistleblowing detriment.

[92]The evidence was that there was a fire alarm panel outside the Claimant’s accommodation, which adjoined the pub. There was another such panel in a different part of the building. A Fire Risk Assessment, carried out by an external company, had advised that the alarms needed to be linked, such that if one sounded it could be heard throughout the building. This could not be done for some technical reason. It was therefore determined that there needed to be someone in the Claimant’s flat on a more permanent basis, so that if that alarm sounded, the person could ensure that the other alarm was also activated and alarms could be heard throughout the building.

[93]This was not discussed with the Claimant at the time of the fire report as the Claimant was off sick. However, a further fire safety inspection in December, which noted the requirement for a written fire evacuation plan, led Mr Donald to conclude that there was a definite need for the Claimant’s accommodation to be occupied on a full time basis.

[94]This plan was reviewed by HR, in terms of whether the Martson’s contract, which the Claimant continued to work under, permitted a change in accommodation. The view was taken that it did, and there is an email dated 5 January 2024 from Sam Barritt of HR to Mr Trapp, advising on how to proceed. The advice was that the Claimant was spoken to verbally and explain why the move was needed, and then give written notice of at least a week if possible.

[95]I therefore find that the decision to move the Claimant’s accommodation was made before the Claimant made protected disclosures on 18 January 2024, such that this cannot be an associated detriment. Detriment 4 – disciplinary for absence

[96]The Claimant says that from 18 January 2024 he was put under disciplinary investigation for his absence. He also asserts that this was due to whistleblowing. I understand his position to be that if he had not blown the whistle, he would not have been disciplined for his absence.

[97]The evidence was that from 15 September 2023, there was concern that the Claimant had told staff to reduce the size of burgers by slicing meat off as summarised above. The Respondent had asked the Claimant to attend a video meeting on 11 October 2023 to discuss issues with stock control. The Claimant said he was unable to attend on health grounds. As such, the disciplinary investigation meeting was held on the date of his return, 18 January 2024.

[98]I find that as the disciplinary investigation meeting had been planned since October, this was unrelated to the PIDs the Claimant made on 18 January 2024. Further, on the Claimant’s case, he raised the PID during the investigation meeting,

[99]In summary, I do not find the Claimant was subjected to detriments because he made PIDs on 18 January 2024. Automatically unfair dismissal

[100]Was the reason, or primary reason for the Claimant’s dismissal that he had made protected disclosures on 18 January 2024? In other words, did the Respondent commit a repudiatory breach of contract because of the disclosures and did the Claimant resign in response?

[101]The Claimant resigned, asserting constructive dismissal, a month later, after receiving the outcome of the grievance he raised about Mr Donald.

[102]The events between the Claimant’s PIDs and his resignation were: 19.01.24 – email from Mr Trapp in response to Claimant’s PID saying that these were matters for him and Mr Donald to resolve 19.01.24 – email from Mr Donald giving the Claimant 2 weeks’ notice to move accommodation 19.01.24 – the Claimant was sent notes of the disciplinary investigation meeting which took place on 18.01.24 19.01.24 – the Claimant raised a formal grievance against Mr Donald 19.02.24 – the Claimant self-certified as sick due to work stress 20.01.24 – Mr Trapp emailed the Claimant to say he would arrange a time the following week to hear his grievance 22.01.24 – invite to grievance investigation meeting 26.01.24 – grievance investigation meeting and notes sent to the Claimant the same day 08.02 24 – the Respondent investigated the Claimant’s holiday pay accrual complaint and a decision is taken to honour the Marston’s contract terms (which are more favourable to the Claimant) 13.02.24 – grievance outcome letter sent to the Claimant 15.02.24 – Food Alert Audit Report 19.02.24 – the Claimant resigns, citing constructive dismissal

[103]In his resignation letter the Claimant begins by referencing the grievance outcome and his ‘multiple reports’ of breaches of food safety and hygiene regulations. He said that after the TUPE transfer, many valuable staff members were lost. They were replaced with inexperienced, unqualified agency workers. Standards dropped to an unacceptable level and as Head Chef he had a duty to report that to management. The company’s breach of its legal obligations was a serious risk to customers. The Claimant refers to his three emails that are cited in this claim as PIDs and says he believed the company was in breach of its legal obligations relating to food safety and health and safety. After he raised those concerns, he was put under significant pressure to resolve them, which was not his job. There was a shortage of qualified staff. The pressure caused him stress, anxiety and depression and he went off sick as a consequence. The company blamed him for their wrongdoing. His holiday and sick pay had been incorrectly calculated. He was assigned fewer hours than his junior Sous Chef. He was moved from his accommodation. His previous accommodation was assigned to the junior Sous Chef. Management gossiped with staff and customers saying that he had left and moved back to Poland. He was branded a troublemaker. The staff shortage meant he was required to work twice as hard. He was put under disciplinary investigation for his absence. In his view it was because he had blown the whistle.

[104]Further the Claimant said the grievance outcome letter only partially upheld his grievances, it did not resolve the main issues (these are not stated) and the company breached his contract so seriously that he had no option but to constructively resign. He could not put customers at further risk. He was not going to be responsible for someone becoming seriously ill.

[105]It is not apparent from this letter, save in so far as his grievance was only partially upheld, that events post his PIDs were the main cause of his resignation. In so far as the Claimant cites the accommodation move, the timing of that decision has already been covered. The Claimant says he felt blamed for the matters he raised. I can appreciate why Mr Trapp’s response that these were issues to be address with Mr Donald, was not the response the Claimant was hoping for or anticipating. I accept he raised serious issues on 18 January 2024. I do not find that Mr Trapp’s email amounted to a breach of the implied term of trust and confidence. Whilst the Claimant felt he was being required to sort out a concern that was not of his making, I find that this was appropriate as he was ultimately responsible for the kitchen. Further, Mr Trapp did not say anything that suggested or implied that the Claimant was to blame. Rather he considered that the state of the kitchen and associated food waste was a matter that was capable of being resolved locally. I accept that Claimant was upset by this response. However genuine his strength of feeling, that is insufficient for me to find a breach. I need to make an objective assessment. Objectively, Mr Trapp’s email was not an unreasonable response given that Mr Trapp had oversight of 13 establishments. There is no evidence that the email was calculated to seriously damage or destroy mutual trust and confidence because I accept Mr Trapp’s evidence that it was not his intention to blame the Claimant. Nor do I find it was objectively likely to do so. Mr Donald and the Claimant together were responsible for ensuring the kitchen was in a fit state to serve food to customers.

[106]As for the Claimant’s grievances not being upheld, the Claimant has not put forward a positive case that this was due to his whistleblowing. He says the grievance outcome admitted there were issues with food safety and hygiene standards. In fact, the letter said that provision was made for the necessary cleaning, and that being without a Head Chef for a period had likely contributed to the fall in standards. This acknowledgement that standards had fallen in the kitchen is a reflection of the facts. It does not blame the Claimant, but makes the point that the lack of the oversight of a Head Chef was likely a contributory factor. The grievance was dealt with in a timely manner and the outcome was balanced. I do not find that the Respondent’s response breached the implied term of trust and confidence. Indeed, if an employer’s failure to uphold grievances breached this implied term, any employee whose grievance was not upheld would be entitled to resign. Rather, I find that the Respondent investigated the Claimant’s grievances and had reasons and evidence to support the position set out in the outcome letter.

[107]There is no evidence upon which I can find that anything done by the Respondent after the Claimant’s PIDs of 18 January 2024 amounted to a repudiatory breach of contract entitling the Claimant to resign in response. I do not find he was automatically unfairly dismissed. Constructive dismissal

[108]As noted above, for an employee to treat himself as constructively dismissed, there must have been a significant breach of contract by the Respondent, sometimes described as a fundamental breach. It may be conduct indicating the Respondent no longer considers itself bound by the terms of the contract. It may be conduct that destroys or seriously damages mutual trust and confidence. As such, the requirement is for something much more significant than unfavourable treatment. The Claimant must resign in response. If there is too much delay, Claimant will be deemed to have accepted the breach. The Claimant relies on breach of the implied term of trust and confidence.

[109]The Claimant says in his resignation letter that the Respondent, by failing to resolve the issues he raised, and by its conduct in the matters he considered detriments (above), breached his contract and left him with no option but to resign.

[110]The Claimant first raised an issue about staffing levels in the kitchen on 31 August. He requested a meeting and a meeting took place on 12 September. The Claimant, I find, was not going to get agreement to two members of staff being on breakfast duty, because the Respondent did not consider this necessary given staffing levels in equivalent establishments. His concerns were discussed and some extra staff hours for the kitchen were agreed. The Claimant’s other concerns such as annual leave accrual were also discussed, and Mr Trapp took this up with payroll thereafter. The email of 15 September from Mr Trapp to the Claimant notes that the Claimant considered his contract had been broken with regard to holiday pay. If that was the case, and the Claimant was to resign in response, he would have needed to resign at that time. His holiday pay accrual was subsequently resolved, with Youngs agreeing to calculate it in the same way Marstons had done.

[111]I find that this meeting sought to resolve, in so far as possible, the concerns the Claimant raised at that time.

[112]The fact the Respondent did not agree to all the Claimant’s requests in relation to staffing, which appears to be the basis upon which he says the kitchen could not be run to his standards, does not mean that there was a breach of contract by the Respondent. Nor does the fact that a number of staff left and had to be replaced with agency staff constitute a breach because the Respondent had difficulty in recruiting. I accepted the Respondent’s evidence that it had reasonable and proper cause to employ agency staff.

[113]In his resignation letter, the Claimant begins by referencing his ‘multiple reports’ of breaches of food safety and hygiene regulations. I have found that he made no such reports prior to 18 January 2024. I understand his position was that this should have been implicit from his emails of 31 August and 3 September, but an objective reading of those does not give such an interpretation. As such, there was no failure by the Respondent to respond and no breach of the implied term of trust and confidence. Indeed, the Respondent has provided evidence of satisfactory or good audit reports in September 2023 and March 2024 in relation to food hygiene.

[114]The Claimant says he was put under pressure to resolve the concerns he raised, which was not his job. It is apparent from Mr Trapp’s email of 15 September to the Claimant, following the meeting on 12th, that the Claimant and Mr Donald needed to work together to manage staffing of the kitchen. The Claimant was given advice with regard to creating recipes, namely to use a digital recipe tool, which would assist. The Claimant had been used to a different way of working with Marstons, and Mr Trapp acknowledged that there were challenges on both sides since the TUPE transfer. Youngs, for example, had to adapt to the Claimant’s unusual working pattern. Equally, the Claimant needed to play a role, as Head Chef, in ensuring that the kitchen continued to be run satisfactorily, including in his absence. It is apparent that the Claimant did not consider he was responsible for what happened in his absence. However I do not find that the Respondent, by expecting the Claimant to delegate tasks such that the kitchen remained compliant with standards in his absence, acted unreasonably. Expecting the Head Chef to take overall responsibility for the running of the kitchen was not a breach of contract. Rather, it accorded with the Claimant’s contractual duties.

[115]The Claimant further relies on matters he pleaded as detriments. As to the reduction in his hours, this was in line with his contract. Contractual differences between the Claimant and his junior Sous Chef explain why the decision was taken to reduce the Claimant’s hours and the hours of other staff, but not the Sous Chef. So whilst I can see why the Claimant considers that on the surface, this appeared unfair, as it was in accordance with his contract, I find no breach. Nor do I find that the disparity between the Claimant and the Sous Chef here was without reasonable and proper cause. I find that it was due to the different contractual arrangements. As such, I do not find that it breached the implied term of trust and confidence. Had the Claimant opted for a salary rather than hourly pay when this was offered, the disparity may well have been avoided.

[116]As to the Claimant’s perceived demotion, in that the Sous Chef was to continue to undertake some of the Claimant’s duties that he had been doing in the Claimant’s absence, it was explained in the grievance outcome that the plan had been for this to continue initially, to allow the Claimant a period of adjustment when he returned to work after 4 months sick leave. It was accepted by the Respondent that this could have been communicated more clearly at the time. So I find that the Respondent had reasonable and proper cause. Whilst I can understand Claimant’s perception, I do not find that temporarily reducing the Claimant’s workload after a significant period of sickness absence, was a breach of the implied term of trust and confidence, given the Respondent’s explanation as set out in the grievance outcome. The outcome letter was received before the Claimant’s resignation.

[117]As to the accommodation move, the contract did not give Claimant the right to particular accommodation, but accommodation generally. However, given the Claimant’s understandable strength of feeling that this was done to undermine him and his seniority, I have considered whether the requirement for him to move accommodation, was without reasonable and proper cause, notwithstanding the contractual term.

[118]I accepted the Respondent’s evidence that the building’s fire alarm system and fire evacuation plan required someone to be living in the Claimant’s accommodation the majority of the time. Compliance with fire regulations is essential. The review of compliance had been carried out by an external company and the Respondent was required to make changes to mitigate the risks identified. As Mr Trapp said, there was a risk that the entire pub would need to close if fire regulations were not complied with. The Claimant has not sought to challenge the Respondent’s method of implementation of the fire risk assessment. He has talked about access to the fire panel, and said he would happily have given access. He has not addressed the point, which was that in order to be compliant with fire regulations, there needed to be someone available at all times to operate the fire panel if the alarm there sounded, so that the alarm could be heard throughout the building. I find that the Respondent had reasonable and proper cause for requiring the Claimant to move accommodation, given his working pattern. As such, I do not need to determine whether this amounted to a breach of the implied term. This is in line with the formulation in Malik.

[119]Finally, the disciplinary investigation was not for the Claimant’s absence, as noted above. Investigating potential misconduct again is something that the Respondent had reasonable and proper cause to do, given reports from more than one source that the burger size was being reduced and that this was on the instruction of the Claimant. The reason the Respondent took this seriously was due to its legal duties not to misrepresent the weight of meat on menus. Employers are necessarily permitted to investigate genuine concerns of potential misconduct without facing a finding of breach of mutual trust and confidence. Otherwise all employees subjected to such investigation could resign and be considered constructively dismissed.

[120]In conclusion, I do not find that the Respondent, without reasonable and proper cause, acted in a manner calculated or likely to destroy or seriously damage trust and confidence. I do not find that the Claimant was constructively dismissed.