Mr M Rahmani v Impact Services (Northern) Ltd: 6016110/2024

EMPLOYMENT TRIBUNALS

Case No 6016110/2024

Between

Mr M RahmaniClaimant

Impact Services (Northern) LtdRespondent

Before

Employment Judge Rhodes

In person for claimant

Date 13 August 2025

JUDGMENT

The complaint of unfair dismissal is not well-founded and is dismissed.

REASONS

[1]This was a complaint of unfair dismissal. The claimant alleged that he had been constructively dismissed by reason of four alleged breaches of contract by the respondent which individually or cumulatively amounted to a breach of the implied term of trust and confidence.

[2]The issues had been identified and agreed at a preliminary hearing before Employment Judge Allen on 10 June 2025. The liability issues are repeated below, although I have re-arranged the alleged breaches of contract into chronological order as it has been necessary to consider whether the last alleged act amounted to a ‘final straw’.

[3]The hearing took place by video as a reasonable adjustment for the claimant’s health conditions. We also took frequent breaks during the hearing. Issues Can the claimant prove that there was a dismissal?(1) The claimant relies upon the following things as either individually or collectively being a breach of contract. The Tribunal will need to decide what occurred:

a. In February 2024 the claimant was asked to contact them when on site and tried to do so but he could not and, on the day after, he was removed from all shifts until he obeyed, when he says he had evidence that he had tried to do so;

b. Things which were said to the claimant on 15 May 2024 and in the previous two days, by the site manager Mike, which the claimant says were racist and included being asked about PPE with excuses;

c. Instead of finding out what was going on, the respondent immediately removed the claimant from the site and from his other shifts; and/or

d. The claimant was asked to come to the office, which the claimant was scared to do because of events in June 2023.

(2) Did that breach the implied term of trust and confidence? The Tribunal will need to decide: (a) whether the respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and (b) whether the respondent had reasonable and proper cause for doing so.

(3) Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

(4) Did the claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.

(5) Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that he chose to keep the contract alive even after the breach. Documents and evidence

Issues

[4]Unfortunately, and frustratingly, the parties had been unable to agree upon a single hearing bundle. The claimant had disclosed his documents to the respondent’s representatives in December 2024 via a Google drive. The respondent’s representatives were unable to access the Google drive. At the preliminary hearing on 10 June 2025, the claimant agreed to re-send the documents as PDF documents but he did not do so, apparently because he was unable to.

[5]The parties really should have found a way around this. As noted by Judge Allen on 10 June 2025, the respondent is represented by one of the largest employer advisers in the country and Google drives are not an uncommon method of sharing documents. They ought to have been able to gain access to the Google drive in the seven months between disclosure and the hearing.

[6]This left us in the unsatisfactory position of having a respondent’s hearing bundle and a claimant’s hearing bundle. As unsatisfactory as that was, it was better to manage with two bundles than to jeopardise the hearing dates by delaying the start so that a single bundle could be prepared.

[7]There was one further preliminary disclosure issue. The claimant’s disclosure included some video and audio recordings. There were no transcripts or summaries of those recordings (agreed, or otherwise) and the claimant’s witness statement did not refer to them at all, so they had not been put into evidence. He told me that the combined length of the recordings was approximately 12 hours. I explained that there was no prospect of his playing those recordings during the hearing as that would effectively take up the entire time allocated for it. I did, however, permit the claimant to submit a short summary of what each of the recordings was and to make submissions about them.

[8]A further disclosure issue arose during the hearing. One of the respondent’s witnesses, Kathryn Lea, said at paragraph 24 of her statement that “the Claimant, Mr Rowlands and Mr Keenan all received a note on their personnel file”. These notes were not in the bundle and I asked Ms Lea to locate and disclose them. Having checked the relevant personnel files after the end of the first day, she said at the start of the second that she could not locate them and that it appeared that no such notes had in fact been put in the files.

[9]I heard evidence from the claimant and Peter Roberts (a pastor at the claimant’s church). The claimant had also submitted a statement from David Hughes (also a pastor at the claimant’s church) but he was on honeymoon and did not attend the hearing. Mr Roberts did not witness any of the events that led to the claimant’s resignation and gave evidence about what the claimant had told him about them, and the claimant’s reaction to them. Mr Hughes did not witness any of the events first-hand either.

[10]The claimant relied upon the attachment to his ET1 form as his witness statement. Bearing in mind that the burden of proving breaches of contract rested with the claimant, his statement did not contain much detail at all about the relevant events. In respect of the February 2024 issue, his statement contained no evidence at all.

[11]On the respondent’s side, I heard evidence from Kathryn Lea (HR Manager), Frank Jackson (Director) and Gordon Horne (a member of the respondent’s Control Room team).

Relevant law

[12]Section 95(1)(c) Employment Rights Act 1996 (‘ERA’), provides as follows: "Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) . .. , only if) – (a) …….. (b) …….. (c) 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".

[13]The classic expression of what is meant by such a dismissal is set out in Western Excavating (ECC) Ltd v Sharp

[1978] IRLR 27

in which Denning MR (as he then was) said at paragraph 15: "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."

[14]In cases concerning an alleged breach of the implied term of trust and confidence, Malik v BCCI SA 5 [1997] 3 All ER is authority for the proposition that a contract of employment contains an implied term that the employer: "would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee".

[15]In cases involving an alleged ‘final straw’ (namely, where an employee alleges that a series of incidents cumulatively amount to a repudiatory breach), the Tribunal must determine what, if anything, constituted the ‘last straw’ leading to the employee’s resignation. That analysis will be very fact-specific.

[16]In London Borough of Waltham Forrest v Omilaju

[2005] IRLR 35

, Lord Justice Prophet stated: "I see no need to characterise the final straw as unreasonable or blameworthy conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence."

[17]In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

;

[2019] ICR 1

Underhill LJ set out the following test: “In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation…)

(5) Did the employee resign in response (or partly in response) to that breach?”

[18]In cases where the claimant complains about the conduct of someone who is not employed by the respondent, the respondent will not generally be vicariously liable for that conduct. There are, however, some cases in which a respondent might be held vicariously liable for someone it does not employ and in Moores v BudeStratton Town Council

[2000] IRLR 676

, Lindsay J set out at paragraph 23 the factors that might give rise to such liability: As for determining whether a wrong-doer is on his own business, just as no single test is nowadays seen to be determinative of whether a person is an employee (as opposed, for example, to being self-employed or an independent contractor), so also no one test is determinative of a person being on his own business for the purposes of vicarious liability, very commonly a closely related question. Similar questions arise in both cases; was remuneration paid for the doing of what was done; was what was done, done for the benefit of the party sought vicariously to be made liable ("the propositus")? Was the act complained of reasonably incidental to the duties of the wrongdoer as cast upon him by the propositus? Was the propositus in a position of control, not only to order what was to be done but how it was to be done? Was the propositus in a position to select who should do the activity in the course of which the wrongful act occurred? Could the propositus suspend or stop that activity? Was what was done expressly or impliedly authorised by the propositus? Was it an unauthorised way of doing something which was authorised? Was it the performance of an act of a class the wrongdoer was not required to do at all or had been forbidden to do? No single question and answer is likely to be determinative but together the answers should provide a composite from which it can be adjudged whether vicarious liability exists.

[19]Although Lindsay J was in the minority, the factors identified above have subsequently been confirmed as being an accurate statement of the law (see, in particular, De Clare Johnson v MYA Consulting Ltd

UKEAT/0306/07

Findings of fact

[20]The claimant was employed by the respondent as a security officer from 3 July 2016 until he resigned with immediate effect on 30 May 2024. His role required him to act as a Security Guard on the respondent’s clients’ premises. His contract of employment contained the following express term: “Third Party Agreement Your employment with the Company may in some circumstances be conditional on the approval of third parties on whose premises you may be required to work. If the third party withdraws permission for you to be at their site, the Company will consider all alternative arrangements that can be made in order to allow your continued employment by the Company. If, however, in the sole opinion of the Company, no alternative arrangements can be made, the Company reserves the right to terminate your employment.”

[21]Kathryn Lea’s unchallenged evidence was that, over the course of the claimant’s employment, he had had to be removed from eight of the respondent’s clients’ premises following client complaints about his attitude and behaviour: Aldi Skelmersdale, Met Quarter, Aldi St Helens, Booker Haydock, Green Oaks, Penketh & White, St Joseph’s College and Stanlow. In one such incident, at the Penketh Volkerstevin site on 4 November 2022, the claimant was given a final written warning for falling asleep on shift.

[22]On 1 June 2023, the claimant and two of his colleagues (Dale Rowlands and Luke Keenan) had been involved in an altercation. Ms Lea heard raised voices coming from the three of them. She did not witness what had actually happened but subsequently investigated the incident and concluded that the incident could have been handled better by all concerned.

[23]The claimant and Mr Rowlands agreed to a mediation meeting to clear the air between them and move forward (Mr Keenan had resigned before the incident on 1 June 2023 and left the respondent shortly after it).

[24]The mediation meeting took place on 26 June 2023 and resulted in the claimant and Mr Rowlands shaking hands and agreeing to move on from the incident on 1 June 2023.

[25]The events of 1 June 2023 are not relied upon as an alleged breach of contract but they are relevant to the fourth alleged breach relied upon by the claimant (which I deal with later in these reasons).

[26]The first alleged breach relied upon by the claimant in the list of issues was an allegation that he had been removed from all shifts in February 2024 until he obeyed a request to contact the respondent, which he had tried to do. However, the claimant does not refer to this incident at all in either his ET1 form or his witness statement.

[27]The only evidence about this allegation was in the form of text messages in the claimant’s bundle but they did not support an allegation of breach of contract. Rather, they showed that, when a security guard is working alone at a client’s premises, the respondent requires the security guard to keep in hourly contact with the respondent’s control room via a mobile phone app. This seemed like a reasonable security measure.

[28]In the claimant’s case, he was unable to use the app because of a problem either with the app or his phone (it was not clear which). The respondent’s Control Room team was liaising with him to resolve the problem but it persisted with the result that respondent told the claimant that he could only be deployed to multi-manned sites until the issue was resolved, and cancelled his forthcoming single-manned shifts.

[29]The issue appears to have been resolved at some point shortly afterwards and the claimant continued to work for the respondent until the events in May 2024 that culminated in his resignation.

[30]On the night of 15 May 2024, the claimant was assigned to work as a Security Guard at the Aldi construction site in St Helen’s. This site was operated by a client of the respondent called CTM. In his witness statement, all the claimant says about the subsequent altercation with Mark Clynes, a Site Manager employed by CTM not by the respondent, is that he “experienced bullying, aggressive behaviour and racist remarks” from Mr Clynes. His witness statement contained no details about what that alleged behaviour was or the alleged racist remarks were.

[31]He gave a little more detail during cross-examination and said that Mr Clynes had shouted at him to come into his office and reprimanded him for not wearing the correct PPE. As for the racist remarks, he said that Mr Clynes had said something to the effect of “fucking foreigners coming over here” on 15 May 2024. The claimant said nothing at all in evidence about any alleged racist remarks in the previous two days.

[32]On the balance of probability, I find that Mr Clynes did not make that remark (or any racist remarks) for the following reasons.

[33]There is no evidence that the claimant made any complaint about alleged racist remarks by Mr Clynes in the two days leading up to 15 May 2024.

[34]In the immediate aftermath of the 15 May incident and on the same night, the claimant spoke to the respondent’s Mike Quigley. Mr Quigley’s note records the claimant as telling him that he had had an argument with Mr Clynes and that the claimant “thinks he is a racist”. It does not record the claimant telling Mr Quigley of any remark that Mr Clynes is alleged to have said. A remark about “fucking foreigners” would have caused the claimant to do more than think Mr Clynes was racist. During that conversation, the claimant agreed (reluctantly) to work the rest of that shift but asked to be removed from his shift the following night (16 May 2024).

[35]At 11.01pm the same night (ie again in the immediate aftermath), the claimant emailed Kathryn Lea “to inform you about an incident that occurred during my shift tonight”. He said that “over the past three nights, I have been subjected to Mark’s rude and aggressive behaviour”. There is no reference in that email to racism or to racist remarks. The claimant would surely have reported such a serious racial slur in a complaint about Mr Clynes less than an hour after it was allegedly made.

[36]The following day (16 May 2024) the claimant sent a series of text messages to Carlton Cooke of CTM in which he indicated that he intended to lodge a formal complaint about Mr Clynes’s “aggressive and bully behaviour”. There is no reference in those messages to racism or alleged racist remarks.

[37]In a text message to the respondent’s Control Room team (the date of which is unclear), the claimant said that Mr Clynes had spoken “aggressively and rude” to him. Again, no reference to racism.

[38]On 27 May 2024, the claimant emailed Kathryn Lea to “bring your attention to a few matters”. In that email, he complained about a parking ticket he had received whilst working at Aldi. He also referred to the incident with Mr Clynes but did not make any allegation of racism in general or alleged racist remarks in particular.

[39]In his resignation email of 30 May 2024, the claimant referred to Mr Clynes’s “bully’s attitude and humiliation behaviour” but did not make any allegation of racism in general or alleged racist remarks in particular.

[40]Pausing here, in the immediate aftermath of the events of 15 May 2024, the claimant was determined to pursue a complaint about Mr Clynes. In that context, if such an extremely offensive racial slur had been made, it is inconceivable that the claimant would have omitted any reference to it from his various communications. Further, the alleged slur was not referred to in the claimant’s ET1, his witness statement or at the preliminary hearing on 10 June 2025. It appears that the first reference to it was during the claimant’s cross-examination. For all these reasons, the allegation that Mr Clynes made this (or any) racial slur lacks credibility and I find that, on the balance of probabilities, he did not.

[41]As previously noted, the claimant’s account of the events of 15 May 2024 lacks any real detail. The most detailed account before me was that which Mr Clynes gave to the respondent in a series of emails between 16 and 20 May 2024 and which is summarised at paragraph 28 of Kathryn Lea’s statement, namely that, after he had challenged the claimant several times over the previous two weeks including on 15 May 2024. These issues included not wearing the correct safety footwear, sitting in the canteen watching movies and filling in his tax return, and not ensuring that the entrance door to the store was covered.

[42]The claimant did not take kindly to being challenged about these issues and argument ensued in which the claimant accused Mr Clynes of being racist for challenging him and said that he would report him.

[43]Mr Clynes reported these first to Carlton Cooke (another CTM manager), who in turn reported them to Mr Horne by email at 6.42am on 16 May 2024. In that email, Mr Cooke asked Mr Horne “please send alternative cover in future.”

[44]There was a dispute about Mr Cooke’s job title but not a great deal turned on this because I accepted Mr Horne’s evidence that Mr Cooke was the person from whom the respondent was accustomed to taking instructions in respect of all the respondent’s portfolio of Aldi sites in the region, not just the site at which the claimant was working on 15 May 2024. This is borne out by the fact that Mr Clynes reported the incident to Mr Cooke who in turn reported it to the respondent. If the respondent was accustomed to taking instructions from Mr Clynes, it is likely that Mr Clynes would have reported the matter direct to Mr Horne himself. Further, the claimant had texted Mr Cooke when he wanted to make a complaint to CTM about Mr Clynes. These communications, in which Mr Cooke was intermediary between the respondent, the claimant and Mr Clynes, would suggest that Mr Cooke was in a more senior position than Mr Clynes.

[45]Mr Horne interpreted Mr Cooke’s instruction to “send alternative cover in future” as an instruction not to deploy the claimant to any of the Aldi sites for which Mr Cooke was responsible, at least in the interim. I find that this was a reasonable interpretation. It should also be remembered that the claimant himself had told Mr Quigley that he wanted to be removed from his 16 May 2024 shift so he was unwilling to return to St Helen’s in the short-term in any event.

[46]This meant that, in the immediate short-term, there were no assignments available for the claimant. I accept Mr Horne’s evidence that all other shifts had already been assigned to other security guards for the remainder of the month – it is reasonable that the respondent would want to have shifts booked up reasonably far in advance. Further, the respondent was already constrained in its choice of assignments for the claimant because of the issues referred to above regarding his previous removal from other clients’ sites.

[47]The respondent’s Control Room made Kathryn Lea and others aware of the situation in an email at 6.46am on 16 May 2024.

[48]Kathryn Lea emailed Mr Clynes later the same morning to inform him that she was investigating the incident the previous night and asked Mr Clynes if there were any witnesses to the discussion or any CCTV evidence. He replied the same day to the effect that the relevant conversations with the claimant took place in Mr Clynes’s office where there is no CCTV coverage. He said that colleagues may have been in his office at various times when he had had to speak to the claimant over the previous few days, he could not specifically recall who.

[49]The following day, Kathryn Lea wrote to the claimant to inform him that CTM had requested his removal from site following Mr Clynes’s allegations. She informed him that he must not attend that site or contact the client pending the outcome of an investigation.

[50]She invited him to a meeting at head office in St Helen’s on 21 May 2024 to be held with her and Mr Rowlands. The purpose of the meeting was expressed in her letter to be as follows: “To investigate these matters further and to make more formal representations on your behalf I feel it would be beneficial to speak with you to discuss this matter in more detail. This will ensure that we can establish all the facts surrounding the matter and give you the opportunity to put forward your explanations and points of view.”

[51]She went on in that letter to say: “After this meeting I will contact our Client to discuss your situation with a view to persuading them to allow you back on site and continue to work there. After I have spoken to the appropriate parties, I will contact you to arrange a further meeting. I feel it is only fair to warn you at this stage, that if we are unable to persuade our client to allow you to continue to work on their site, and we have no alternative employment for which you can be considered, then your contract may be terminated. However, we will seek to avoid this if possible.”

[52]I do not find that there was anything particularly objectionable about the contents of the letter. It was a neutral statement of the position as it then stood, namely that the client had asked the respondent to remove the claimant from site following complaints about performance and conduct; that the respondent wanted to get his side of the story with a view to advocating on his behalf for a return to site; and that, if this could not be achieved and there was no other suitable work, his employment may be terminated. This appeared to be exactly the type of situation provided for by the ‘Third Party Agreement’ provision of the claimant’s contract of employment which is quoted above.

[53]There is nothing about that letter to indicate that the respondent had prejudged the issue and the clear hope expressed in the letter was that a solution could be reached which would result in the claimant’s return to site.

[54]The claimant emailed Kathryn Lea on 20 May 2024 to say that he was unable to attend the meeting because of his “critical health circumstances that created by your company and your clients for me at work environment.”

[55]Kathryn Lea agreed to rearrange the meeting for when he felt better and asked the claimant for a sick note in the meantime.

[56]The claimant then resigned by email to Kathryn Lea dated 30 May 2024. In full, his resignation email said: “I am writing in response to your recent emails regarding the significant upsetting issue caused by your client for me, CTM Management. I must express my deep disappointment and distress over the manner in which you and your company, IMPACT, have handled this matter. I kindly request that you cease any threatening behaviour towards me, as has been previously exhibited by your operations Director. I also urge you to stop attributing blame to me, rather than conducting a thorough investigation into the distressing incident caused by your client. I reported this incident promptly after the time of happen via e-mail (to which I received no response) and also communicated it to your control room (which was not followed up). Please understand that it is not my responsibility to investigate the incident caused by your client. Furthermore, I wish to make it clear that I cannot be compelled or pressured to attend a meeting that I am uncomfortable with, primarily due to the behaviour of your company's staff towards me. My past experiences with your meetings have left me feeling that they lack justice and respectful conduct. The way your company has handled these incident and other similar incidents, coupled with the bully's attitude and humiliation behaviour of your client, has had a significant impact on my health and well-being. It is noticeably clear to me that you are supporting your clients without conducting any investigation, which is deeply concerning. My health and well-being are of paramount importance, far more so than the financial gains of IMPACT and its clients that you worry about and because of that you close your eyes on justice. My aim is to seek justice and independent investigations to show the truth and uphold my rights in a justice manner. Considering these circumstances, I've decided to resign with immediate effect from IMPACT. You asked for the sick note, please find the attach file.”

[57]In view of my earlier findings about the purpose of inviting the claimant to the meeting on 21 May 2024, I do not consider that the claimant was justified in asserting that the respondent was seeking to attribute blame to him without investigating. Indeed, an investigation was already underway: Kathryn Lea had obtained Mr Clynes’s account and had made enquiries about whether there were other witnesses and/or CCTV footage. She then wanted to hear the claimant’s account of the events in question, with a view to seeking to persuade CTM to allow the claimant back on site.

[58]The last alleged breach of contract relied upon in this claim was being asked to attend the office (for the meeting on 21 May 2024) which the claimant says that he was scared to do because of the events of June 2023. However, the claimant had attended the office at least twice since June 2023 and had given no indication to the respondent that he was scared to do so. In the circumstances, I find that the invitation to attend the office was innocuous and that there was no reason for the respondent to suppose that the claimant would be scared to do so. In any event, I accept Kathryn Lea’s evidence to the effect that, if the claimant had asked for the meeting to be held elsewhere (which he did not) she would have accommodated this request, as she had done in June 2023 when the mediation took place at the respondent’s Stanlow site instead of head office.

Conclusions

[59]Applying these facts to the issues in the claim, I find as follows. Alleged breach of contract (1): In February 2024 the claimant was asked to contact them when on site and tried to do so but he could not and, on the day after, he was removed from all shifts until he obeyed, when he says he had evidence that he had tried to do so.

[60]There was no breach of contract here. It was a reasonable management instruction to comply with the respondent’s lone-working policy by regularly checking-in with the Control Room via the app and a reasonable response to the claimant’s inability to do so to restrict his shifts to multi-manned sites until such time as he was able t use the app.

[61]When viewed objectively, the respondent did not behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

[62]Further or alternatively, the respondent had reasonable and proper cause to act in the way it did, namely to ensure compliance with the lone-working policy.

[63]Even if I am wrong about this, and there was a breach of contract, the claimant waived the breach and affirmed the contract by continuing to work for the respondent for a further three months. Alleged breach of contract (2): Things which were said to the claimant on 15 May 2024 and in the previous two days, by the site manager Mike, which the claimant says were racist and included being asked about PPE with excuses.

[64]The claimant has not proved, on the balance of probabilities, that Mr Clynes said things that were racist to him on 15 May (for the reasons set out above). The claimant gave no evidence at all about alleged racist remarks made in the previous two days.

[65]In any event, Mr Clynes was not an employee of the respondent. There was no evidence before me that his relationship with the respondent would satisfy the Moores v Bude-Stratton Town Council test for vicarious liability. CTM was a client of the respondent. The respondent was not paying for CTM’s services and had no control over the appointment of Mr Clynes or how he carried out his duties. On that basis, whatever Mr Clynes may or may not have said to the claimant on 15 May 2024 cannot be imputed to the respondent and it is therefore not vicariously liable for any misconduct on Mr Clynes’s part (and I have not found that there was).

[66]For these reasons, therefore, there was no breach of contract by the respondent. Alleged breach (3) Instead of finding out what was going on, the respondent immediately removed the claimant from the site and from his other shifts.

[67]The respondent removed the claimant from the site where he had worked on 15 May 2024 as a result of the instruction from Mr Cooke of its client, CTM. It was a reasonable interpretation of that instruction that it applied to other sites in respect of which Mr Cooke was accustomed to give instructions to the respondent. The combined effect of the limited number of sites at which the claimant was permitted to work (because of previous incidents) and the lack of immediately available alternative work meant that there were no alternative shifts to which the claimant could be assigned in the short term.

[68]In complying with CTM’s instructions and removing the claimant from site, the respondent was acting in accordance with the ‘Third Party Agreement’ provision of the claimant’s contract of employment.

[69]Kathryn Lea had begun an investigation into the 15 May incident and wanted to hear the claimant’s account with a view to advocating on his behalf to CTM. The respondent had not prejudged the issue.

[70]When viewed objectively, the respondent did not behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

[71]Further or alternatively, the respondent had reasonable and proper cause to act in the way it did, namely complying with the client’s instructions whilst also seeking to obtain the claimant’s account with a view to persuading the client to allow the claimant to return to site. Alleged breach (4) The claimant was asked to come to the office, which the claimant was scared to do because of events in June 2023

[72]I repeat the findings at paragraph 55 above. This was an innocuous request.

[73]When viewed objectively, the respondent did not behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

[74]Further or alternatively, the respondent had reasonable and proper cause to act in the way it did, namely to seek to discuss the incident of 15 May 2024 with the claimant. ‘Last straw’ doctrine

[75]I have found that none of the alleged breaches, on their own, amounted to a fundamental breach of contract. I now consider whether the last alleged act which led the claimant to resign (being asked to attend the office) amounted to “the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer” (as per Omilaju).

[76]I find that it did not. The invitation to the office was innocuous. None of the respondent’s earlier alleged conduct was blameworthy. When viewed cumulatively, the respondent did not behave in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

[77]Further or alternatively, the respondent had reasonable and proper cause to act in the way it did, for the reasons addressed in relation to each of the alleged breaches.

[78]For these reasons, the claimant was not constructively dismissed and his claim therefore fails. Approved by: Employment Judge Rhodes 13 August 2025

Introduction

[1]Under Rule 68 of The Employment Tribunal Procedure Rules 2024 ("the Rules”), a judgment may be reconsidered "where it is necessary in the interests of justice to do so."

[2]It is an important public policy principle that there should be finality in litigation and that, as a general rule, proceedings which have concluded should not be re-opened and re-litigated. A reconsideration application is a limited exception to this rule. The interests of justice must be considered from the perspective of both sides to the litigation as well as the interests of the general public. In Flint v Eastern Electricity Board

[1975] ICR 395

, Phillips J said the following about the interests of justice: "… First of all, they are the interests of the employee. Plainly from his point of view it is highly desirable that the evidence should be given, because it follows, from what I have already said, that there is at least some, perhaps good, chance that if it is given his case will succeed. One also has to consider the interests of the employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one's sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have Case Number: 6016110/2024 to be applied either way because one day a case may arise the other way round. So, plainly, their interests have to be considered. But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that it should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry. It certainly seems to me, hard though it may seem in the instant case, that it would not be right that he should be allowed to have a second bite at the cherry in cases which are perfectly simple, perfectly straightforward, where the issues are perfectly clear and where the information that he now seeks leave at a further hearing to put before the tribunal has been in his possession and in his mind the whole time. It really seems to me to be a classic case where it is undesirable that there should be a review." (page 404E - 405A)

[3]The fact that a disappointed party may not have done justice to his/her case at the hearing is not a sufficient reason for granting a reconsideration of the final decision (Redding v EMI Leisure Ltd

EAT/262/81

). The claimant's application falls within this category.

[4]Further, in some respects, the claimant is now seeking to advance a case that was not within the scope of his pleaded claim. Each of the claimant's grounds is addressed below (using his headings). Orders sought

[5]The claimant seeks case management orders directed at disclosure of documents. It is not clear what the claimant means by the daily/occurrence log for May 2024 but the bundle contained documents relating to the May 2024 incident involving the CTM. The bundle also contained documents about the "all-Aldi/portfolio removal" and these issues were properly considered and addressed.

[6]The issue of 'bundle governance' was addressed at the outset of the hearing, as recorded at paragraphs 4 to 6 of the written reasons, and did not impact on the fairness of the proceedings. Continuous pattern

[7]A reduction in shifts was not pleaded as one of the alleged breaches of contract and the claimant's witness statement did not address this at all.

[8]The claimant's witness statement did not contain any evidence about the February 2024 incident despite being one of the four alleged breaches relied upon.

[9]The issue regarding "all Aldi" sites was properly considered and addressed at paragraphs 44 and 45 of the written reasons. The issue regarding being "told no work was available" was properly considered and addressed at paragraph 46.

[10]The claimant's statement did not address his contention that he only attended the office under financial duress following the June 2023 incident.

[11]The judgment addressed whether there was conduct which cumulatively may have amounted to a repudiatory breach and found that none of the respondent's conduct in relation to the four alleged breaches was blameworthy (paragraphs 75 and 76). Case Number: 6016110/2024 Ground A – 59-63 (February 2024: "check-in app and shift cancellation")

[12]As noted above, the claimant's statement did not address the February 2024 incident at all.

[13]In any event, there was no finding that the claimant "refused to comply". The relevant finding was that "he was unable to use the app because of a problem with the app or his phone" (paragraph 28). Ground B – 64-66 (CTM remarks/vicarious liability focus)

[14]These paragraphs of the judgment (64-66) deal specifically with the conclusions in relation to the first alleged breach of contract, namely the CTM's own conduct, and vicarious liability.

[15]The respondent's response to the May 2024 incident is dealt with separately (paragraph 43 to 58 and 67 to 77). Ground C – 67-71 (May 2024 scope: single-site letter vs blanket ban)

[16]The issue regarding "all Aldi" sites was properly considered and addressed at paragraphs 44 and 45 of the written reasons. Ground D – 67-71 (Alternative work existed: Veolia)

[17]The issue regarding being "told no work was available" was properly considered and addressed at paragraph 46. The Tribunal accepted Mr Horne's evidence that all other potentially available shifts had already been allocated to others and that, even though the claimant may not have been 'banned' from Veolia, there were no unallocated shifts available for him. Ground E – 67-71 (Pre-disclosure pressure; missing contemporaneous records)

[18]It is unclear what the claimant is referring to here by reference to paragraphs 67-71 of the written reasons but it appears to relate to case management disclosure issues. The Tribunal did not find that the respondent had made any "threats" to the claimant. Ground F – 72-74 (office attendance after the 2023 incident)

[19]The claimant was unaware that the personnel notes were not on file until it emerged during the course of the hearing and therefore this issue cannot have led to an "erosion of trust" resulting in, or contributing to, the claimant's resignation.

[20]The claimant's statement did not deal with "financial compulsion".

[21]The Tribunal found at paragraph 58 that, if the claimant had asked for an alternative venue for the meeting, the respondent would have accommodated this. Ground G – 75-77 (last-straw analysis)

[22]The Tribunal considered the "last-straw analysis" and concluded that none of the respondent's conduct was blameworthy, either individually or cumulatively. Alternatively, the respondent had reasonable and proper cause to behave as it did (paragraph 77). Case Number: 6016110/2024 Ground H – procedural omissions/unfairness affecting the safety of the outcome

[23]These are case management issues that were addressed at both the preliminary hearing on 10 June 2025 and at the outset of the final hearing.

[24]A fair hearing was still possible despite delays in complying with directions and the problems with the bundle. Neither party made an application to postpone the hearing.

[25]It would not have been proportionate to watch the claimant's video footage, which he said amounted to up to 12 hours, in the confines of a two-day hearing. In any event, the claimant submitted a summary of what he said that footage contained and none of went to the central issue of what the CTM was alleged to have said to the claimant. Rather, the footage appeared to be directed at establishing that the claimant was wearing PPE and carrying out his duties properly. The Tribunal did not need to make findings about whether he was or was not. Ground I – CTM site manager's racist conduct credibility finding unsafe; trauma-informed assessment required

[26]The claimant's statement did not address what the CTM's alleged racist remarks were. The only specifics were contained in a response to a question under cross-examination. The Tribunal was required to assess the credibility of that allegation (by reference to all the other evidence and documents) and it set out its reasoning in detail at paragraphs 33-42. In any event, even if the Tribunal was wrong about this, the respondent was not vicariously liable for things said and done by the CTM, for the reasons at paragraph 65. Ground J – unsupported finding of "bans from eight sites"

[27]This finding was not unsupported: it was made on the basis of the witness evidence of Kathryn Lea which the claimant did not challenge in cross-examination (paragraph 21). The claimant did not adduce any witness evidence of his own to gainsay this. Ground K – eight years' service: rationality of resignation and cumulative breach

[28]It was necessary for the Tribunal to make findings in relation to the four alleged breaches of contract (individually or cumulatively). Having found that the respondent did not breach the claimant's contract, it was not necessary for to Tribunal to go on to consider the claimant's motivation for resigning. Ground L – relevance and probative value of my photo/video evidence (May incident)

[29]This is addressed under Ground H above. It is also relevant to point out that the respondent was seeking CCTV footage as part of its investigation into the incident and the time for the claimant to have shared his footage would have been at the time of that investigation. It was not the Tribunal's function to determine whether or not the claimant was wearing PPE on the night in question. Ground M – objective loss evidence: P60 year-on-year drop (~£14,000)

[30]As noted several times above, the claimant did not adduce any evidence in his statement about the February 2024 incident or about any alleged reduction in shifts. In any event, an alleged reduction in shifts post-2023 was not one of the alleged breaches relied upon. Case Number: 6016110/2024 Ground N – uneven treatment of witness evidence (Peter & Dave vs respondent's witnesses)

[31]There was no uneven treatment. The respondent's witnesses each gave first-hand evidence about their own involvement in matters complained of by the claimant, whereas the claimant's witnesses could only give evidence about what the claimant told them. Their evidence was hearsay evidence.

[32]David Hughes was not available to attend on either day of the hearing because of his wedding and honeymoon. Whilst Mr Hughes's email of 18 July 2025 indicated that he would be willing to make arrangements to attend in person or by video after his return from honeymoon, the claimant did not make an application to postpone the hearing in light of his unavailability. Ground N1 – the respondent's witnesses were also not eye-witnesses

[33]The credibility of the claimant's limited account of his interaction with the CTM was assessed by reference to contemporaneous correspondence in the immediate aftermath of the alleged incident, not by reference to the respondent's witnesses. Date: 6 October 2025 Approved by