Employment Judge S PoveyIn person for claimantDate 21 October 2025
REASONS
[1]The Claimant was employed by the Respondent as a Customer Service Engineer. His employment commenced on 14 January 1977 until his resignation, effective from 15 January 2025. By a claim presented to the Employment Tribunal (‘the Tribunal’) on 4 April 2025, the Claimant complained of constructive unfair dismissal and unauthorised deductions form wages. The claim was resisted in full by the Respondent.[2]The final hearing was conducted in person over two days at Swansea Civil Justice Centre.[3]During the hearing, I heard evidence from the Claimant, his wife Fiona Hamilton, and his step-son, William Hyndman. For the Respondent, I heard evidence from its Managing Director, Alexander Ferguson.[4]The Claimant had also provided statements from former colleagues and a neighbour. The Respondent provided a statement from Jasmine Monk, its Financial Controller. However, none of those witnesses attended the final hearing and as such their evidence was not tested. I have afforded appropriate weight to their evidence, in light of the fact that it has not been attested to nor was it capable of being challenged. That impacts the amount of weight that can be attached to it.[5]Each witness I heard from confirmed and adopted their respective statements.[6]I was provided with a paginated and indexed bundle of documents (‘the Bundle’). I also received oral submissions from Mr Overs for the Respondent and written submissions from the Claimant. I have taken the relevant evidence and the submissions into account in reaching my decisions.[7]The Claimant is a litigant in person. He was supported throughout the hearing by Mr Hyndman who, with my permission, asked questions of Mr Ferguson on behalf of the Claimant. I took time to explain the process and procedures to them both, checked their understanding, encouraged them to ask questions and gave them guidance throughout. I was satisfied that the Claimant was able to fully engage in the process and present his claim to the best of his abilities.[8]I was grateful to the Claimant, Mr Hyndman and Mr Overs for the assistance they provided and the work they undoubtedly undertook both before and during the hearing. I was also grateful to all witnesses, including the Claimant, who attended and answered the questions asked of them to the best of their recollections.[9]At outset of hearing, I confirmed with the parties the issues for me to determine. During the hearing, the Claimant withdrew his complaint of unauthorised deductions from wages. That left the following issues to be decided: 9.1. Was the Claimant’s resignation a dismissal, which required determination of the following: 9.1.1. Did the Respondent fundamentally breach of the Claimant’s contract of employment? 9.1.2. Did the Claimant resign in response to that breach? 9.1.3. Prior to resigning, did the Claimant affirm or waive that breach?[10]In summary, the Claimant alleged that changes to arrangements for the delivery of parts for jobs he was required to undertake and how he was treated when he raised concerns and objections, whether individually or cumulatively, breached his contract of employment, including the implied term of mutual trust and confidence. If the Claimant was correct, then his resignation was, in law, a dismissal and an unfair one at that.[11]In contrast, the Respondent maintained that the changes to how parts were delivered did not breach the Claimant’s contract of employment, whether fundamentally or at all, whether of an express or implied term. If the Respondent was correct, there was no dismissal and there could be no complaint of unfair dismissal. The applicable law Constructive unfair dismissal
The applicable law
[12]An employee is dismissed where he “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” (per section 95(1)(c) of the Employment Rights Act 1996).[13]The phrase "constructive dismissal" is not referred to in the Employment Rights Act 1996, but is "a colloquial label for a repudiatory breach of contract by the employer which is accepted by the employee, bringing the contract to an end" (per Elsevier Ltd v Munro [2014] EWHC 2648 (QB)).[14]The fact that the Claimant disagreed with some or all of what the Respondent did or did not do is not enough to establish a breach of contract, still less a fundamental breach. What is required is evidence that the Respondent has committed a repudiatory breach of contract, classically described by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, CA, as follows If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.[15]Implied into every employment contract is the term of mutual trust and confidence between employer and employee, whereby 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. Due to the nature of the trust and confidence term, every breach of it goes to the root of the contract and is therefore repudiatory (per Morrow v Safeway Stores [2002] IRLR 9).[16]There are two questions to be asked when determining whether the implied term of mutual trust and confidence been breached (per Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) [1997] 3 All ER 1): 16.1. Was there ‘reasonable and proper cause’ for the conduct? 16.2. If not, was the conduct ‘calculated or likely to destroy or seriously damage trust and confidence’?[17]Whether or not the Respondent acted in a manner that fundamentally breached the Claimant’s contract of employment (such that he was entitled to resign and claim to have been dismissed) is to be judged objectively, having regard to the evidence. The fact that the Claimant believes his contract was breached does not mean that it was, no matter how strongly that view is held. Similarly, the fact that the Respondent did not intend to breach the contract of employment is irrelevant.[18]The Claimant must resign because of the breach and must not delay too long, as he will be deemed to have affirmed or waived the breach (that is, signalled his acceptance in law that the contract is continuing) and lose the right to claim constructive dismissal.
Findings of fact
[19]Many of the relevant facts in the case were not in dispute.[20]The Claimant undertook engineering work for the Respondent’s customers onsite (that is, at the customers’ premises). The Respondent operated a system whereby engineers, including the Claimant, would order the parts required for any given job and arrangements were then made for the engineer to receive those ordered parts.[21]Until the early 1990s, the Claimant lived and worked in the south east of England. So far as relevant, he would order and collect the parts for jobs from the Respondent’s factory in Kent. The Claimant then moved to Swansea and from 1992, to a property on Swansea Road in Waunarlwydd, Swansea. The Respondent funded the building of a storage shed on the Claimant’s property for the delivery and storage of ordered job parts. It also paid the Claimant £60 per month for storing the parts in the shed.[22]That arrangement continued until 2010, when the Respondent stopped paying the Claimant for storage but continued to deliver parts to the Claimant’s home every Friday for use on his jobs, which the Claimant would store in his work’s van, for use the following week.[23]Thereafter, and until January 2020, parts ordered by the Claimant were delivered to his home address on Fridays.[24]The Claimant raised a number of complaints with the Respondent from 2017 onwards about parts being left outside his home on Fridays (when he was at work) and being damaged by the weather or blocking his family’s access to the property.[25]In response to the complaints raised by the Claimant, from January 2020, the Respondent rented a self-storage unit close to the Claimant’s home, to which his ordered parts were delivered and stored for him to collect (‘the Hub’).[26]The Respondent entered into a licence agreement with a local self-storage company in respect of the Hub (at [237] – [238] of the Bundle). The rental began on 14 January 2020, on a monthly basis. There was reference to terms and conditions for terminating the agreement (although the actual terms were not in evidence). However, it was Mr Ferguson’s oral evidence that the Respondent was required to give one month’s notice to terminate the rental agreement.[27]There was a copy of the Claimant’s Statement of Main Terms of Employment evidence, from January 2023 (at [46] – [54] of the Bundle). It included the following (at [49]): Place of Work The nature of your work requires you to operate from your home address and involves visiting customers at their premises…[28]In March 2024, the Claimant was informed by the Respondent that it was closing the Hub for financial reasons. It proposed to recommence delivering parts to the Claimant’s home address. Access to the Hub was scheduled to finish in April 2024. The Claimant informed the Respondent that he would not accept delivery of parts to his home address (see, for example, the email exchange of 10 April 2024, at [195] of the Bundle).[29]On 9 May 2024, the Claimant tendered his resignation (at [128] – [130] of the Bundle). As detailed in his resignation email, and as confirmed in his oral evidence, the Claimant resigned because the Hub was closing and deliveries of parts would recommence to his home.[30]The Claimant met with the Respondent on 10 May 2024 (the minutes of the meeting were at [126] – [127] of the Bundle). It was confirmed to the Claimant that he would not be liable for any loss or damage to parts delivered to his home address. The Respondent stated that the Claimant had a contractual duty to accept the delivery of parts at home. The Claimant disagreed, sharing his belief that his contract had been varied by the use of the Hub for four years. The Respondent agreed to explore whether deliveries could come down to every six to seven weeks, rather than weekly.[31]On 15 May 2024, the Claimant retracted his resignation, which included the following (at [131] of the Bundle): …it is not for me to leave it is for the company to restore a satisfactory method of parts storage and collection. That process is ongoing and I hope we get there soon.[32]In his oral evidence, the Claimant accepted that, by withdrawing his resignation, he had accepted the possibility that the Hub would not be reinstated.[33]Also on 15 May 2024, the Claimant raised a grievance, regarding the closure of the Hub and the proposed return to parts deliveries to his home (at [132] – [133] of the Bundle). The Claimant’s desired outcome was as follows: I would like the company to reinstate the store/collection point asap and I would also like the method off [sic] parts collection and deliveries to me acknowledged in my contract of employment.[34]The grievance was considered by James Ross, the Respondent’s Head of Sales, at a hearing on 6 June 2024. The decision to remove the Hub was upheld and reference was made to a number of alternatives which were explored but proved either unworkable or did not have the agreement of the Claimant (per the grievance outcome letter, erroneously dated 3 June 2024, at [135] – [136] of the Bundle).[35]On 18 June 2024, the Claimant was informed that he was being suspended on full pay with immediate effect, pending investigations into a potential health and safety issue at a school where the Claimant had undertaken a job the previous day (as confirmed in the email of 19 June 2024, at [206] – [207] of the Bundle).[36]By a letter dated 25 June 2024, the Claimant appealed against the grievance outcome decision (at [137] – 139] of the Bundle). The grievance appeal was considered by Ms Monk, who held a hearing with the Claimant on 4 July 2024 (the minutes of which were at [142] – [143] of the Bundle). By a letter dated 19 July 2024, Ms Monk dismissed the appeal and upheld the grievance outcome decision (at [144] of the Bundle).[37]The Claimant was invited to a disciplinary hearing on 11 July 2024, to discuss allegations that he breached health and safety polices in respect of work undertaken at the school on 17 June 2024 and that he had failed to follow a reasonable instruction in May 2024 by refusing to receive the delivery of parts to his home address. The disciplinary hearing was conducted by Mr Ross. On 24 July 2024, he issued his decision letter, wherein the health and safety allegation was upheld (and the Claimant was issued with a final written warning) but the allegation of failure to follow a reasonable instruction was not upheld due to insufficient evidence (per [146] – 147] of the Bundle).[38]On 25 July 2024, all service engineers, including he Claimant, were issued with a new job description (at [216] of the Bundle). It included the following under ‘Key responsibilities’ (at [145]): Receive Kanban stock to your home address which is the address you operate form as per your contract[39]The Claimant’s suspension was also lifted with effect from the 25 July 2024. However, he was unable to return to work due to ill-health (per [214] – [215] of the Bundle).[40]The Claimant planned to return to work on 23 August 2024. Given his absence from work, the Claimant attended a welfare meeting on 20 August 2024 with Nikki Arter, the Respondent’s Customer Experience Manager. Following the meeting, Ms Arter emailed the Claimant, as follows (at [217] of the Bundle): As discussed at the meeting and the previous correspondence with you we would require you to receive parts at your home address for you to be able to carry out both servicing and repairs on behalf of [the Respondent]. This is part of your job role and is stated in your updated job description that has been sent to you. Without receiving these parts, you will be unable to perform your role as service engineer and this may lead to disciplinary action being taken against you.[41]The Claimant had a further period of ill-health absence on or around 2 September 2024.[42]The Claimant appealed against the disciplinary outcome. Following an investigation and an appeal hearing, the Claimant was informed on 6 September 2024 by Mr Ferguson that his appeal against the disciplinary decision had been unsuccessful (at [169] – [170] of the Bundle).[43]The Claimant was the subject of a further disciplinary process, with a hearing being held on 3 October 2024 (per [171] of the Bundle). That resulted in him being issued with another final written warning on 18 October 2024, which the Claimant appealed against (at [172]). There was little documentary and witness evidence regarding the second disciplinary process. However, what was apparent from the Claimant’s letter of appeal was that the final written warning related, in part, to his continued refusal to accept the delivery of parts to his home address.[44]On 21 October 2024, the Claimant emailed Mr Ferguson and Ms Arter, as follows (at [227] of the Bundle): Can you both please confirm to me that there will not be any other way considered of getting parts delivered to me other than Insisting that I return to the totally unacceptable method of having parts delivered to my home address with the inevitable poor service grief hassle and inconvenience that comes with it, this subject has had more than enough coverage with fact based emails, photos, and more anecdotal reports from myself and other colleagues in recent weeks months and years for It to be said that I haven't given good reason why I have not accepted deliveries to my house is not true all my reasons go back to before 2019 not May of this year and all have been well documented.[45]Ms Arter replied on 22 October 2024, as follows (at [226] – 227] of the Bundle): I can confirm that there is no other way of getting parts sent to you, we explored the suggested alternatives you suggested back in April and none of them were viable. As per your job description we require parts to be sent to your home address, so you can carry out your role as a service engineer the same as all other service engineers that work remotely. We will require you to order your Kanban stock for when you return to work next week when your fit to work note expires.[46]The Claimant responded on 23 October 2024, wherein he set out again his objections to the closure of the Hub, his belief that parts going to the Hub was now part of his contract of employment and his refusal to accept deliveries to his home address (at [225] – [226] of the Bundle). He conclude his email as follows: …I have now got to the point that my position within the service department has now become untenable, with the company failing to maintain the continuity of delivered service / Kanban parts to a storage / collection or DX depot public collection area as agreed in 2020 I can no longer continue in my work. How disappointing that I have felt the need to write this instead of being able to leave after 47 years on a high. I will in a separate email inform you that I will be resigning my untenable position and leaving the company.[47]As indicated, later on 23 October 2024, the Claimant sent the following email to Mr Ferguson (at [174] of the Bundle): A hard decision but made easy in the end I have made the decision to resign my position as service engineer and as per the company handbook I give you 12 weeks notice of leaving, my intended last working day should be 15th of January 2025 I'm sure accounts will sort it out. It has been after 47 years quite a journey not sure how it works from here. I look forward to Hearing from you.[48]On 25 October 2024, Mr Ferguson invited the Claimant to reconsider his decision to resign, as follows (at [228] of the Bundle): I have received your resignation and can confirm that your last day will be the 14th January 2025. We are concerned that you have made this decision in hast due to the ongoing issues with parts delivers. I note your email sent shortly after your resignation, I have gone through your comments in the letter, and we have previously answered all the items raised and the process has been exhausted on this. I would like to clarify for the avoidance of doubt that when we send out any engineer without a DBS check, the school is informed in advance, and they will then escort the staff member whilst on the premises. However, as you have raised concerns regarding DBS checks, if my explanation is not satisfactory, would you like to raise this as a grievance. If you do wish to reconsider your resignation, please contact me before the 30th October 2024 otherwise we will take your resignation as final.[49]The Claimant did not reconsider or retract his resignation and his employment ended with effect from 15 January 2025.[50]The Claimant claimed in his written and oral evidence that the reason he resigned was not limited to the removal of the Hub. He suggested that the disciplinary procedure and the final written warnings were also factors which informed his decision to resign in October 2023. However, the Claimant’s correspondence with the Respondent at the time (whether as part of his grievance, his appeal or his resignation) made little, if any, reference to the disciplinary proceedings or the final written warnings. Rather, what was clear was that it was the removal of the Hub which was at the heart of the Claimant’s decision to tender his resignation in May 2024 and to re-tender it in October 2024, the latter of which resulted in his employment ceasing.[51]As such, and based upon the contemporaneous evidence, I concluded that the reason for the Claimant’s resignation was the removal of the Hub and reintroduction of the delivery of parts to his home address. Analysis & conclusions[52]It was the Claimant’s case that the removal of the Hub constituted fundamental breaches of express and implied terms of his employment contract (whether individually or cumulatively). In particular, he argued that the introduction and operation of the Hub created an express term in his employment contract, which the Respondent breached by its unilateral decision to close the Hub.[53]In contrast, the Respondent’s case was that the use of the Huib was never a term of the Claimant’s contract, that it had always been a temporary measure and its removal could not, as a matter of law or practice, constitute a breach of contract. It also denied that it had acted in a manner which entitled the Claimant to treated the implied term of mutual trust and confidence as similarly breached.[54]Having regard to my findings of fact, I had to determine whether the alleged acts happened and, if they did, whether individually or cumulatively they constituted a fundamental breach of the Claimant’s contract of employment, such that his resignation was capable of being treated as a dismissal in law.[55]As noted about, from 1992 until 2019, the Respondent delivered parts to the Claimant’s home address and the Claimant accepted the delivery of those parts in order to undertake his role as an engineer (albeit not without complaints which started in or around 2017). The same arrangement was in place for other engineers and was not unique to the Claimant. That was because it was an aspect of the Respondent’s business model and, to that extent, it was wholly open to the Respondent to decide how to organise its business.[56]The Claimant’s contract required him to work from home and visit customers on site. Consistent with the contractual term, and evidenced by the custom and practice between 1992 and 2019, parts would be delivered to engineers homes for them to use on jobs. The contract envisaged engineers being based from home (as opposed to a specific site or installation). That necessitated a procedure for them to receive parts and load them onto their vans to undertake their work. To that extent, how the parts were provided to engineers went to the methods of working, which were not contractual in themselves. Rather, they were collateral instructions or procedures to engineers for how they were to carry out their duties. They were not the essential or core duties.[57]With effect from January 2020, the Respondent began delivering the Claimant’s parts to the Hub. However, there was no direct evidence that the introduction of the Hub was intended to be permanent or intended to be a contractual term. In reality, the Hub was a change of procedure to accommodate concerns and issues raised by the Claimant and which were accommodated by the Respondent. In time, however, the Respondent concluded that it was not financially viable to continue with the Hub.[58]The lease of the Hub did not suggest that it was a permanent arrangement. It was paid for on a monthly basis and could be terminated on giving a month’s notice.[59]To be fair to the Claimant, in his oral evidence, he also accepted, after considering the lease for the Hub, that its provision was never permanent.[60]There was a practice of delivering parts to engineers homes. The Claimant engaged in that for 27 years and it is still the practice now for the Respondent’s engineers. There was no express term that engineers had to have parts delivered to their homes because it was not part of their contract. Rather, it was an instruction from their employer (to accept the delivery of parts at home) in order for them to carry out their contractual duties as engineers.[61]It follows that the setting up of the Hub for the Claimant in 2019 (and which became operational at the start of 2020) did not vary any term of his contract of employment. It simply changed the method by which he received the parts he needed to undertake his duties. Similarly, it did not become a term of his contract. It was another example of a collateral instruction or procedure for how the Claimant was to undertake his duties, albeit one that he had asked for and was preferential to him.[62]As the Hub was never a contractual term and was never capable of being a contractual term (unless it was expressly incorporated into the Claimant’s contract by agreement, which it was not) and since it was collateral to the terms of the contract and pertained to how the Claimant’s duties were undertaken, the Respondent did not require the agreement of the Claimant to change or remove it.[63]What the Respondent was doing was changing how it required the Claimant to undertake his contractual duties. It was not seeking to change those contractual duties themselves. It was simply changing the procedure for getting parts to the Claimant so that he could use them in his duties as an engineer.[64]For the sake of completeness, I also considered whether there was a term implied into the Claimant’s contract of employment that he would only receive deliveries of parts via the Hub. That required me to be satisfied that such a term was either necessary to give the contract business efficacy, the term was so obvious that the parties must have intended it, it was normal custom and practice to include such terms in contracts of that kind or the intention to include such a term was demonstrated by the way in which the contract was performed.[65]In my judgment, none of those requirements were met on the facts of this case. It was clearly not necessary for the Claimant to have use of the Hub to give the contract business efficacy. He had been more than capable of undertaking his role and duties prior to 2020 and the Respondent’s own business model was premised upon the delivery of parts to its engineers. The contract was undoubtedly workable without the provision of the Hub, which was, at its highest, a convenience for the Claimant.[66]It could not be said that the term was so obvious that the parties must have intended it to be part of the contract of employment. It was not a term which was so obvious that it went without saying (per the so-called ‘officious bystander test’). It was never in the minds of the parties when the Claimant commence employment with the Respondent (that is, when the contract was agreed). Even when the Hub was introduced, it was the Respondent’s clear evidence, supported to some degree by the terms under which the Hub was leased, that its was never anything other than a temporary arrangement.[67]It was not custom and practice for the Respondent, still less within the trade or industry undertaken by the Respondent, for storage facilities like the Hub to be provided to engineers. In reality, it was custom and practice for parts to be delivered to engineers’ homes.[68]Finally, there was nothing in the conduct of the parties which sufficiently supported a conclusion that the provision of the Hub was an implied term of the Claimant’s contract of employment. Having regard to all the surrounding facts and circumstances, the Hub was provided as a temporary measure, in response to concerns raised by the Claimant. As found above, it went to how the Claimant undertook his contractual duties, rather than changing those duties themselves. Whatever the Claimant may have believed, the Respondent did not act in a manner which was consistent with the Hub being an implied term of his contract of employment. Neither the Hub nor anything similar had been provided to any other engineer, it was leased on a temporary, rolling basis and could be terminated at a month’s notice (which it duly was, for financial reasons). Even the Claimant accepted, in his oral evidence, that the removal of the Hub and the reinstatement of home deliveries was a return to the norm.[69]Drawing all those factors together, it followed that the removal of the Hub did not, in itself, constitute a breach of the Claimant’s contract of employment, still less a fundamental one.[70]Given that context, it could not be said that the Respondent, by removing the Hub, was acting without reasonable and proper cause. It manifestly was. As such, there was, in my judgment, no breach by the Respondent of the implied term of mutual trust and confidence. Conclusion: unfair dismissal51. For the reasons set out above, the Respondent did not breach the Claimant’s contract of employment, individually or cumulatively, whether fundamentally or at all. There was no breach of the implied term of mutual trust and confidence and no breaches of any other term of the Claimant’s employment contract.52. It followed that the Claimant was not permitted to treat his employment contract as repudiated and his resignation on 23 October 2024 was not, in law a dismissal. It was a resignation.53. As the Claimant was not dismissed, his complaint of unfair dismissal cannot succeed and it is dismissed. Affirmation and/or waiver54. As I have found that there were no breaches of contract, fundamental or otherwise, whether the Claimant affirmed and/or waived any breach falls away. Similarly it is immaterial to consider whether the Claimant resigned in response to any fundamental breaches of contract, as there were none (fundamental or otherwise). Approved by: