Mr Forbes-Browne v MJW Asbestos Removal and Reinsulation Services Ltd: 6020136/2024

EMPLOYMENT TRIBUNALS

Case No 6020136/2024

Between

Mr Forbes-BrowneClaimant

MJW Asbestos Removal and Reinsulation Services LtdRespondent

Before

Employment Judge Ost

In person for claimant

Date 23 July 2026

JUDGMENT

After consideration of the evidence provided and hearing from the parties the judgment of the Tribunal is as follows: Unfair Dismissal

[1]The complaint of unfair dismissal is not well founded and is dismissed.

REASONS

[2]The Respondent is a business which provides specialist asbestos removal and re-insulation services on domestic and commercial sites. The Claimant was employed by the Respondent as a thermal engineer asbestos operative from 18 May 2022. This was the Claimant’s second period of employment with the Respondent.

[3]The case focuses on the events of 16 August 2024 when the Claimant says he was assaulted by a work colleague and after meetings with his managers and with the client he left site. The Respondent says that the Claimant resigned. The Claimant says he did not resign but needed time off work after being assaulted. During the weeks following the Respondent processed the Claimant’s P45 form and sent that to him indicating the Claimant’s employment had ended.

[4]On 28 November 2024 the Claimant presented his first claim form which was allocated the claim number 6020136/2024 which contained complaints of: 4.1. Unfair Dismissal; and 4.2. Other payments

[5]The Claimant also submitted a second claim form containing similar content which was allocated the claim number 6004830/2025 but within that claim form the Claimant alleged complaints of unfair dismissal, unauthorised deductions from wages, failure to pay holiday pay, a claim for redundancy pay and ‘other payments’.

[6]After a delay in the claim form being sent to the Respondent, the Respondent submitted a response form dated 24 March 2025. After receiving the other form it submitted another response form with similar content on 23 April 2025. In both response forms the Respondent indicated that it resisted all complaints.

[7]Claim numbers 6020136/2024 and 6004830/2025 were consolidated and listed for a preliminary hearing.

[8]A preliminary hearing took place on 16 December 2025 before Employment Judge V Butler. At that hearing: 8.1. The Claimant confirmed that the only claim he wished to advance was a complaint of unfair dismissal. 8.2. Employment Judge V Butler dismissed claim number 6004830/2025 upon withdrawal by the Claimant.

[9]Therefore the only complaint to be determined at hearing was a complaint of unfair dismissal.

[10]The Claimant attended to represent himself. Mr Sanderson with support from Mr Terzza (who are both managers for the Respondent) attended to represent the Respondent.

[11]The parties cooperated in the production of a bundle which did not contain page numbers but contained ‘items’ numbered 1-3 followed by ‘appendices’ listed from A to Q. The Tribunal checked that both parties had the same bundle of documents. The Claimant produced additional pages of medical records which he said had been sent to the Respondent and to the Tribunal but had not been included in the bundle. The Tribunal had no record of those documents being provided and the Respondent said that it had not received those documents. However, after having the chance to review the additional documents which were similar in content to other medical record documents provided by the Claimant, the Respondent agreed to include these documents which were accepted into evidence and labelled as Appendix R. The Respondent also provided an audio file of the meeting on 16 August 2024 which was the basis for the documentary transcript included in the bundle at Appendix E.

[12]The Tribunal considered the documentary evidence provided in the bundle except for the letter from Stephenson’s Solicitors to the Respondent dated 10 April 2025 (which had been included at Appendix O of the bundle). The Tribunal did not take this into account as suggested by the Respondent because that appeared to be a ‘without prejudice’ settlement proposal which the Tribunal did not take into account. The Tribunal explained the public policy behind the exclusion of genuine settlement communication conducted on a without prejudice basis. The Tribunal explained that both parties could agree to waive privilege but the Claimant had not done so. On that basis the parties agreed that it was correct that the settlement correspondence should not be considered.

The hearing

[13]This was a hearing in which all parties attended in person. The hearing took place in public. (No members of the public attended on the first day, but three members of the public observed the hearing on the morning of the second day.)

[14]The Tribunal explained the need to ensure that each person was able to participate fully by understanding what was happening, what was being said by other and by being understood themselves. The Tribunal checked with each participant whether there were any barriers to their full participation and therefore whether any adjustments were requested.

[15]The Tribunal had noted in advance that within the case papers there was reference to the Claimant experiencing dyslexia and anxiety. It also noted a specific adjustment recorded by Employment Judge V Butler within her case management orders that the Claimant would need to have documents read aloud.

[16]The Tribunal noted the content of relevant parts of the Equal Treatment Bench book. Having done so, the Tribunal reassured all parties that: 16.1. They could seek clarification at any stage by asking for a question to be repeated or rephrased to check their understanding. 16.2. They could take their time when considering responses. 16.3. They could inform the judge if they were struggling to maintain concentration or if they need a break for any reason. 16.4. They would not be not expected to rely on memory alone for details of dates, times, locations etc and the bundle of evidential documents and their witness statements would be available on the witness table for referral. 16.5. They would not be expected to absorb new documents or specific pieces of information within the bundle of documents under any time pressure.

[17]The Claimant asked if he could use a copy of the bundle which he had marked up with highlighting and underlining to help him access factual elements within the documents. The Tribunal queried whether the Claimant had made any notes within the bundle and the Claimant confirmed that he had not done. The Tribunal asked whether the Respondent was content to agree that the Claimant could use the highted bundle whilst being cross examined. Mr Sanderson agreed to this on behalf of the Respondent.

[18]The Tribunal asked Mr Sanderson and Mr Terzza if they would prefer to read aloud the paragraphs of their statements so that the Claimant could listen to those paragraphs before questions were asked on those sections in cross examination, or, whether they would prefer the Judge to read the paragraphs. Both Mr Sanderson and Mr Terzza confirmed they would prefer the Judge to read the paragraphs. That is what happened.

[19]The Claimant did not identify any other barriers or other adjustments which would be helpful to ensure his full participation.

[20]The Tribunal checked whether there were any barriers to participation and/or any adjustments were needed for anyone within the Respondent’s party. Mr Sanderson and Mr Terzza confirmed that no adjustments were needed.

[21]The Tribunal heard witness evidence from the Claimant.

[22]The Tribunal heard from the following witnesses for the Respondent: 22.1. Mr Adam Sanderson – General Manager 22.2. Mr Hadley Terzza – Operations and Contracts Manager

[23]Each witness provided a prepared witness statement. The Tribunal took time to read the statement in advance. Each witness was cross examined by the other party and the Tribunal also asked questions.

[24]During the Claimant’s cross examination of Mr Sanderson and Mr Terzza, the Claimant struggled to put his questions at multiple points and sometimes became frustrated with himself. On these occasions the Tribunal reassured the Claimant that many persons representing themselves find it difficult to phrase cross examination questions, he was doing fine and he did not need to be frustrated with himself. With the Respondent’s agreement, the Tribunal explored what questions the Claimant was seeking to put to the witnesses and then it helped him to phrase his intended questions in a way that was fair to the witnesses and allowed them to respond.

[25]At the conclusion of the evidence each party was given the opportunity to make oral submissions.

[26]The Claimant made short submissions in which he adopted his witness statement, he thanked the Tribunal for hearing his case, he said that the assault which he had alleged took place on 16 August 2024 had indeed taken place.

[27]The Respondent’s submissions were in summary that the Claimant had resigned verbally and it was normal for this to happen in their industry. The Respondent explained its reasoning for believing that the Claimant had resigned. The Respondent also highlighted that the Claimant’s evidence had been inconsistent and changed over the course of two days, and, it was inconsistent with various other people and documentary evidence notably about whether he had been encouraged/allowed to go to A&E on 16 August 2024 and also on whether he had said that he had been punched/hit in the face.

The Issues

[28]The issues to be decided by the Tribunal in order to determine the complaints were discussed and identified by the Judge and read aloud to the parties and then also provided in writing.

[29]They issues were as follows: 1. Unfair dismissal1.1 Was the claimant dismissed? The claimant says he was dismissed. The respondent says the claimant resigned

1.2 What was the reason or principal reason for dismissal? The respondent says the reason for any dismissal was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.

1.3 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:1.3.1 there were reasonable grounds for that belief;

1.3.2 at the time the belief was formed the respondent had carried out a reasonable investigation;

1.3.3 the respondent otherwise acted in a procedurally fair manner;

1.3.4 dismissal was within the range of reasonable responses. 2. Remedy for unfair dismissal

2.1 The claimant does not wish to be reinstated or re-engaged by the respondent.

2.2 If there is a compensatory award, how much should it be? The Tribunal will decide:2.2.1 What financial losses has the dismissal caused the claimant?

2.2.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

2.2.3 If not, for what period of loss should the claimant be compensated?

2.2.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

2.2.5 If so, should the claimant’s compensation be reduced? By how much?

2.2.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

2.2.7 Did the respondent or the claimant unreasonably fail to comply with it?

2.2.8 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

2.2.9 If the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct?

2.2.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

2.2.11 Does the statutory cap apply?

2.3 What basic award is payable to the claimant, if any?

2.4 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? The Relevant Facts

[30]The relevant facts are as follows in the paragraphs below. Where the Tribunal had to resolve a conflict of evidence, it did so on the balance of probabilities and it has indicted how it resolved that conflict at the relevant point. Assessment of reliability

[31]The Tribunal found each of Mr Terzza and Mr Sanderson to be generally credible and reliable witnesses throughout. Their accounts were consistent with the documentary evidence and notably they were each consistent with the transcript of the meeting with Seddons. They appeared to give answers honestly even where an answer was not helpful to them.

[32]The Claimant also appeared to be trying to give honest answers. However, the Claimant’s account of what was said and done did not always stand up to scrutiny. Most obviously, the Claimant’s recollection of the events on 16 August 2024 was shown to be inaccurate on multiple issues.

[33]The Claimant insisted to the Tribunal on several occasions that on 16 August 2024 he had not said that he had been hit on the head by Westcarr; he claimed that he had only said that Mr Westcarr had tried to hit him on the head. Mr Terzza and Mr Sanderson said that had said that he had been hit on the head by Westcarr and this was reflected in notes made including Mr Terzza’s investigation report of the incident. The Tribunal also saw email evidence from a manager from Seddons, Christopher Stanton, who sent an internal report regarding the incident by email at 2pm on the same day in which he recorded that the Claimant “claims that he was punched in the face multiple times and kicked in the groin”. Mr Stanton was subsequently also contacted by the Police about the incident and he was asked to provide an account of what happened. Within his email response to the Police on 31 January 2025 Mr Stanton said “The operative who claimed to be the victim of assault stated that he had been punched repeatedly in the face”. In reexamination the Claimant’s account changed again, this time to say that Mr Westcarr had his hand around the Claimant’s throat.

[34]The Claimant also gave evidence that Mr Terzza and Mr Sanderson forced him to stay at the meeting with Seddons rather than go to hospital. However, the evidence from the transcript of the meeting supported Mr Terzza and Mr Sanderson’s evidence that they did suggest to the Claimant that he go to an hospital. When challenged on this the Claimant changed his account to say that they “forced” him to stay because “they didn’t say to me that I must go to casualty”. This flow of ‘logic’ from the Claimant and his description of being ‘forced to stay’ caused the Tribunal to have concerns about the Claimant’s interpretation and description of events. The Claimant gave evidence just a couple of questions later that he felt he needed to stay to make sure the meeting with Seddons. This lack of consistency also caused concerns for the Tribunal over the reliability of the Claimant’s description.

[35]A significant dispute of evidence arose between the parties regarding whether on 16 August 2024 the Claimant had or had not claimed that he had been punched in the face/hit in the head multiple times. The Respondent asserted strongly that he did say that. The Claimant asserted equally strongly that he did not say that he only said that the colleague had tried to hit in the head but was unsuccessful. The evidence was relevant because one of the elements of evidence which led the Respondent not to believe the Claimant’s claim to have been assaulted, was that the he claimed to have been punched in the face several times by a large and physically strong young man but there was no marks.) When the Respondent explored this issue in cross examination, the Tribunal noted that within the transcript of the meeting with Seddons, Mr Terzza was recorded near the beginning stating: “Gary is telling us that he’s been just correct me if I’m wrong Gary, Adams as my witness. We’ve been told that he’s been kicked in the groin region, and he’s been punched in the face a few times.”

[36]In that cross examination the Claimant was asked if Mr Terzza invited the Claimant to correct him if he was wrong, and Mr Terzza’s summary was wrong, then why didn’t the Claimant correct Mr Terzza to say that he hadn’t actually been punched in the face. The Claimant said that he was sure that he did correct it but that wasn’t in the transcript. The Tribunal double checked whether the Claimant was suggesting that the transcript was wrong. The Claimant confirmed that it was wrong and he was sure that he had corrected Mr Terzza. The Tribunal therefore agreed to listen to the recording around the relevant point (0:43). The Tribunal clearly heard the passage and noted with agreement from all parties that there was no indication of any correction or disagreement by the Claimant during or after this section. The Claimant then changed his account to say that he would have been shaking his head at that point which is why it wasn’t heard.

[37]The Tribunal considered this explanation but noted that it was different to the previous account. It also noted that shaking one’s head at a description would not “correct” any particular element. Futhermore, there was nothing within the transcript or recording to suggest that Mr Terzza thought that the Claimant had corrected him as requested or had indicated any disagreement. Also, later in the script people continue to rely on the fact that there are no marks visible on the Claimant’s face. The Claimant doesn’t indicate that he hadn’t been hit, or, that he had already said or indicated that the punches didn’t make contact.

[38]As a result of the Claimant’s strong assertion that he had orally corrected Mr Terzza on that issue on 16 August 2024 when the recording showed that he didn’t do so, the Tribunal finds that the Claimant’s recollection and evidence of what was said and done on 16 August 2024 was not reliable. The Tribunal reached the conclusion that that Mr Terzza and Mr Sanderson’s were more likely to be reliable and accurate in their recollection of what was said and done on 16 August 2024 than the Claimant, especially when their recollection was corroborated by documentary evidence. The factual findings which the Tribunal has made below reflect that assessment of reliability. Facts

[39]Both parties agreed that in the weeks and months leading up to 16 August 2024 the Claimant had been dissatisfied with his rate of pay at the Respondent. The Claimant received a message from another organisation offering him “2 weeks work in Nottingham, £210 a day”. In response the Claimant wrote to the representative who had approached him to say: “Cant lie, I wanna take the job I wanna take the job for the money. Just wish you could tell me you had work for me all the way up to Christmas. I would leave MjW for more money” [sic]

[40]On 8 August 2024 the Claimant sent that exchange to Mr Terzza with the message: “I’ve Gotta let you see what’s going on really and truthfully I’m not happy. [sic]”

[41]Prior to 13 August 2024 there was friction between the Claimant and a new worker, Andrew Westcarr, whom the Claimant was training. It is relevant for context of what follows to note that both the Claimant and Mr Westcarr are black men.

[42]On 13 August 2024 the Claimant sent a WhatsApp message to Mr Westcarr containing an image of a black man in chains with a ring around his neck.

[43]Mr Westcarr was unhappy about receiving this message and he sent it on to Mr Terzza on 14 August 2024. Mr Terzza spoke to Mr Westcarr about it. Mr Westcarr said that the Claimant had been trying to stir up racial divisions by suggesting that the Respondent was treating the two of them like slaves because they were black men. Mr Westcarr told Mr Terzza that he wasn’t sure what he wanted to do about the Claimant’s message and image but said to Mr Terzza that he was prepared to keep working with the Claimant in the meantime.

[44]On 15 August 2024 Mr Terzza informed Mr Sanderson about the WhatsApp message and image. They believed that a disciplinary investigation was required and that the sending of the image could amount to serious or gross misconduct. They were considering what to do but had not reached a conclusion on this before the events of 16 August 2024 occurred.

[45]Separately on 15 August 2024 the Claimant informed a manager at Seddons that he was planning to leave the Respondent’s employment at the end of the week and the Claimant request copies of work related certificates.

[46]On Friday 16 August 2024 at approximately 9:15am, the Claimant telephoned Mr Terzza and reported that he had been assaulted by Mr Westcarr.

[47]Mr Terzza and Mr Sanderson attended the site at the University of Derby and spoke to all of the Respondent’s workers at the site. None of the workers backed up the Claimant’s allegation of a physical assault by Mr Westcarr. The Claimant did not exhibit any visible signs that he had been punched in the face or around the head.

[48]Mr Terzza and Mr Sanderson also spoke to the Claimant. The Claimant was initially subdued and Mr Westcarr appeared calm. Mr Terzza and Mr Sanderson formed the view that an assault had not taken place and they told the Claimant this. The Claimant then became agitated. During the course of that conversation, the Claimant said to Mr Terzza and Mr Sanderson 48.1. “If you don’t get rid of [Mr Westcarr], I am leaving MJW for good”. 48.2. When Mr Terzza and Mr Sanderson suggested that they should all return to the Respondent’s offices to discuss matters further he replied along the lines of “Nah I’m done. Where is your loyalty? If you don’t believe me, I’m finished with MJW.” 48.3. When he asked what he intended to do next, he said: “Nah I’m done with you all”. 48.4. As he was preparing to leave, the Claimant said: “I didn’t want it to end like this”.

[49]The Claimant gave evidence in answer to questions from the Tribunal that he was just talking about being ‘done for the day’ and ‘not wanting his day to end like this’. However this would not explain the statement that he would leave MJW for good, his reference to loyalty or his statement that if he was not believed then he was finished with the Respondent. The Claimant also denied saying he wanted Mr Westcarr sacked and said he just wanted him disciplined. However the Tribunal found that to inconsistent with the Claimant’s view of the gravity of the incident around the same time given that he reported the incident to the Police for prosecution.

[50]Mr Terzza and Mr Sanderson understood the Claimant’s words to be a resignation. This view was formed in the particular context of the Claimant’s stated dissatisfaction with his pay rate, his active exploration of other working opportunities, and the Claimant’s statement to Mr Terzza that “really and truthfully I’m not happy”.

[51]Neither Mr Sanderson or Mr Terzza confirmed or recorded their understanding of the Claimant’s resignation in writing. That would not be an automatic action in their industry.

[52]Mr Terzza and Mr Sanderson accompanied the Claimant to his car and asked for the Claimant’s security pass for the University of Derby which the Claimant gave up. (The security pass was handed in at the end of each working day.)

[53]However, the Claimant then said that he wished to make a complaint to the client contractor, Seddons, because the alleged assault took place on their site. Mr Terzza and Mr Sanderson accompanied the Claimant to undertake a meeting with Seddons’ managers at the site. They thought the Claimant was doing this because after resigning the Claimant would not be able to follow an internal process with the Respondent.

[54]In the meeting with Seddons managers the Claimant said very little. Mr Terzza explained what had happened to lead to the meeting and summarised what he had been told about the incident between Mr Westcarr and the Claimant, inviting the Claimant to correct him if he was wrong.

[55]As stated above, the Claimant did not correct Mr Terzza. In sharp contrast, Mr Westcarr said to the meeting that there had been an oral argument between himself and the Claimant that morning. The argument occurred because the Claimant was putting pressure on him to support the Clamant in a tribunal claim against the Respondent based on the allegation that the Respondent mistreated people who shared the Claimant’s and Mr Westcarr’s colour. Mr Westcarr was refusing to do so because he didn’t believe that was true and it was this which led to an oral argument but not to a physical altercation.

[56]At the end of the meeting with Seddons managers the Claimant left and went to A&E.

[57]Later the same day Mr Bradley of Seddons told Mr Sanderson that the Claimant had told him in advance that 16 August 2024 would be his last day with the Respondent.

[58]At 5:30pm on 16 August 2024 the Claimant sent a What’s App message to Mr Terzza which attached an image of a hospital prescription and in which the Claimant wrote: “Didn’t want any of this I’ll have you all know. My hearty don’t work like your own. Bless no weekend work due to end ache [emoji]. Just checking to see how this this all works out in the accident book??? NOT HOW I HOPED FOR MY END. Needing Air. Just wanted to get my job done and go home safe [emojis]”.

[59]Mr Terzza told Mr Sanderson about the message. Mr Sanderson thought that the Claimant may have changed his mind about resigning because he seemed to have ‘changed tack’ with this message.

[60]At 11:23am on 19 August 2024 the Claimant sent a What’s App message to Mr Terzza in which the Claimant wrote: “Morning Hadley Please can you let me know what plans there are for me and work? As needing 5 days to assess and heal what damage is done to my lower regions, as for much discomfort. Also I’m needing Anthony’s full name. Thank you I’ve been advised by Acas to contact the Police due to you not doing so, on my behalf as the victim …. To say that you’re impartial to outcome’s Regards, Gary Forbes-Browne”

[61]The Tribunal accepted the Claimant’s evidence in cross examination that he was called on 19 August 2024 by a work colleague, Lucas Cich, who told him that everyone was saying that he had resigned and left the Respondent’s employment.

[62]The Claimant also telephoned Mr Terzza that morning. The Claimant said that he would “need a couple of weeks to get his head together before returning to work”. Mr Terzza told the Claimant that the Respondent believed that he had resigned and if he wanted to return to work for the Respondent then he would need to reapply for a role.

[63]Whilst conducting cross examination of Mr Terzza, the Claimant said that he “refused outright to reapply for his role”. The Claimant explained this by saying that he wouldn’t do so because “I never said that I was resigning in writing”.

[64]The Tribunal accepted Mr Sanderson’s evidence in answer to questions from the Tribunal that he didn’t want the Claimant to return to work because of the issues with Mr Westcarr and because he believed that the Claimant had tried to discredit the Respondent with Seddons.

[65]During the week commencing 27 August 2024, Mr Sanderson instructed the Respondent’s accountants to produce a P45 to the Claimant. He intended that this would be dated 16 August 2024 but did not specify this so it was dated at the end of the previous week, 25 August 2024, and issued to the Claimant on 27 August 2024.

[66]Despite the P45 being sent to the Claimant on 27 August 2024, the Claimant continued to send fit notes to the Respondent for several weeks beginning 27 August 2024. The Law Unfair Dismissal

The Law

[67]The test for the complaint of unfair dismissal in so far as is relevant is found in s.98 Employment Rights Act 1996 (“ERA 1996”) which provides as follows:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— … (b) relates to the conduct of the employee, … … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[68]Section 95 of the ERA 1996 provides the circumstances in which an employee is held to be ‘dismissed’ for the purposes of that part of the ERA 1996 as follows: 95 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) the contract under which he is employed is terminated by the employer (whether with or without notice), (b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or (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.

(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if— (a) the employer gives notice to the employee to terminate his contract of employment, and (b) at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire; and the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given.

[69]The burden of proof is on the claimant to establish that they were dismissed. The treatment of ambiguous or unambiguous words of resignation or dismissal

[70]In many cases it is clear and obvious that there has been either a dismissal or a resignation. However, in some cases it is not clear and obvious whether a dismissal or a resignation took place. In such cases the Tribunal has to determine whether the employee resigned or the employer dismissed the employee.

[71]The leading authority about ambiguous resignations/dismissals is the recent case of Omar v Epping Forest District Citizens Advice

[2023] EAT 132

[72]The EAT in this case reviewed the authorities and provided the following principles should be applied to decide if ambiguous words amounted to the termination of employment and, if so, with or without notice at paragraph 97 of that judgment. It included the following elements of guidance: 72.1. A notice of resignation or dismissal, once given, cannot unilaterally be retracted. 72.2. Words of dismissal or resignation, or words that potentially constitute words of dismissal or resignation, must be construed objectively (reasonably and impartially) in all the circumstances of the case. They must be construed in accordance with normal rules of contractual interpretation. 72.3. The subjective uncommunicated intentions of the speaking party are not relevant. The subjective understanding of the recipient is relevant but not determinative. 72.4. What must be apparent to the reasonable bystander in the position of the recipient of the words is that: 72.4.1. the speaker used words that constitute words of immediate dismissal or resignation (if the dismissal or resignation is ‘summary’) or immediate notice of dismissal or resignation (if the dismissal or resignation is ‘on notice’) – it is not sufficient if the party merely expresses an intention to dismiss or resign in future; and, 72.4.2. the dismissal or resignation was ‘seriously meant’, or ‘really intended’ or ‘conscious and rational’. The alternative formulations are equally valid. 72.4.3. What they are all getting at is whether the speaker of the words appeared genuinely to intend to resign/dismiss and also to be ‘in their right mind’ when doing so. 72.4.4. Consequently, the point of view that is most relevant is that of the recipient of the words of termination. 72.5. In the vast majority of cases where words are used that objectively constitute words of dismissal or resignation, there will be no doubt that they were ‘really intended’ and the analysis will stop there. A Tribunal will not be in error if it only considers the objective meaning of the words and does not go on to consider whether they were ‘really intended’ unless one of the parties has expressly raised a case to that effect to the Tribunal or the circumstances of the case are such that fairness requires the Tribunal to raise the issue of its own motion. 72.6. The point in time at which the objective assessment must be carried out is the time at which the words are uttered. The question is whether the words reasonably appear to have been ‘really intended’ at the time they are said. 72.7. However, evidence as to what happened afterwards is admissible insofar as it is relevant and casts light, objectively, on whether the resignation/dismissal was ‘really intended’ at the time. 72.8. The difference between a case where resignation/dismissal was not ‘really intended’ at the time and one where there has been an impermissible change of mind is likely to be a fine one. It is a question of fact for the Tribunal in each case which side of the line the case falls. 72.9. The same rules apply to written words of resignation / dismissal as to spoken words. The analysis – application of facts to law to determine the issues Was the claimant dismissed?

[73]The Tribunal assessed the facts found in the light of the case of Omar (above).

[74]The Tribunal considered the words which it found that the Claimant had used and construed them objectively (reasonably and impartially) in all the circumstances of the case and in accordance with normal rules of contractual interpretation at the time when they were made.

[75]The wider context was that the Claimant had recently stated to Mr Terzza that he was really and truthfully unhappy in the Respondent’s employment, and separately, he told Mr Bradley on Thursday 15 August 2024 that he would be finishing with the Respondent at the end of that week.

[76]The Tribunal was satisfied that the Claimant’s words on Friday 16 August 2024, within the immediate context of the escalated dispute between the Claimant and Mr Westcarr in which they were used, would indicate to a reasonable bystander that the Claimant had made a decision to end his relationship with the Respondent. The Claimant indicated that the Respondent had a choice to make between employing Mr Westcarr and himself and if the Respondent didn’t remove Mr Westcarr then the Claimant would be “leaving [the Respondent] for good”. He then said that it Mr Terzza and Mr Sanderson didn’t believe him about what happened with Mr Westcarr then he was finished. When Mr Terzza and Mr Sanderson indicated that they weren’t going to remove Mr Westcarr from employment and they didn’t believe the Claimant’s version of events, he responded with “I’m done with you all” and, as he prepared to leave, he said: “I didn’t want it to end like this”.

[77]The Tribunal did not consider it realistic to expect or require a person in the Claimant’s position to use more formal contractual language to communicate his resignation. People use different forms of language and the Tribunal was satisfied that the Claimant had communicated in his own words his view that he was ‘done’ with everyone at the Respondent and his employment relationship with the Respondent had ended even though the Claimant hadn’t wanted it to end like this. The fact that the Claimant was describing the end as having taken place indicates that he had resigned with immediate effect.

[78]Whilst these words were spoken at a time when the Claimant was (in Mr Sanderson’s words) ‘agitated’ and (in the Claimant’s words) ‘emotionally compromised’, this does not mean that the resignation cannot have been meant. The Tribunal assessed the intention carefully.

[79]The Tribunal noted that the Claimant made these statements approximately an hour after the argument with Mr Westcarr so they were not said in the heat of the immediate aftermath of the incident. The Claimant was describeda s being subdued suggesting that he had not lost control of himself. The Tribunal also noted that the Claimant did not make a single statement indicating that his relationship with the Respondent was at an end but he made several comments across several points in the conversation indicating the end of his relationship and he briefly explained his rationale for doing so. The Claimant had previously said to Mr Terzza that he was already really and truthfully unhappy with the Respondent prior to this incident so his decision to resign following the incident with Mr Westcarr did not appear to be a strange or impulsive decision to the Respondent. It appeared to be a continuation and escalation from the existing unhappiness which the Claimant had expressed. The Claimant remained on site with Mr Terzza and Mr Sanderson for a further one and a half hours after these statements in order to hold the meeting with Seddons’ managers but the Claimant did not do anything in that time to retract that communication, to say that he’d spoken in haste, or to suggest that his words weren’t seriously meant.

[80]The Respondent reasonably understood the Claimant’s words to be an immediate resignation in this context. The evidence of Mr Cich’s subsequent communication with the Claimant that people at work were saying that the Claimant had resigned and left shows this was how the event had been interpreted. The Tribunal noted the guidance within Omar (above) that the point of view that is most relevant is what the recipient of the words understood as an indicator of the reasonable bystander (but it is not determinative of that issue). The Tribunal was satisfied that Mr Terzza and Mr Sanderson both clearly understood that the Claimant had resigned.

[81]The Tribunal was satisfied that in the morning of 16 August 2024 the Claimant means the words he had said: he really intended to resign and he really was done with the Respondent. The Tribunal determined that the Claimant may have started to change him mind later that same day. After the Claimant had finished at A&E at the end of 16 August 2024, he sent a message which started by saying the he didn’t want any of this. However, the Claimant did not seek to withdraw his resignation at this point and he didn’t say that he hadn’t meant what he had said.

[82]The Claimant’s communication three days later on 19 August 2024 did indicate that the Claimant wanted an ongoing working relationship. However, the Tribunal determined that this was because the Claimant had changed his mind rather than because he didn’t resign or because he hadn’t intend to resign. Whilst the Claimant may have regretted his decision on the 16 August and changed his mind, it was three days after his oral resignation. The Tribunal notes the guidance in Omar (above) that the giver of notice cannot change their mind unless the other party agrees. If the Claimant did want to withdraw his oral resignation by this point, then he did not actually ask for agreement to do this. It is unlikely that Mr Sanderson would have agreed to this. There was no such request and no such agreement.

[83]The Claimant’s evidence was that he was told on 19 August 2024 that if he wanted to restart working for the Respondent then he would need to reapply for a role but he “refused outright to reapply for his role”. The Claimant’s description of the reason for his refusal to reapply was revealing. He said that he wouldn’t do so because “I never said that I was resigning in writing” [underlining is the Tribunal’s emphasis]. The clarification that he hadn’t resigned in writing implicitly suggests that the resignation was given orally otherwise the clarification is meaningless; the Claimant would just have said “I never said that I was resigning”.

[84]The Tribunal considered the subsequent actions to assess what they indicate about the intention to resign. It noted that on 19 August 2024 the claimant wrote to Mr Terzza “Please can you let me know what plans there are for me and work? As needing 5 days to assess and heal what damage is done to my lower regions, as for much discomfort.” At face value this may indicate that the Claimant didn’t believe he had resigned because he was acting as if he was still employed. However, the Tribunal also considered that this could equally be a case of the Claimant indirectly exploring with the Respondent whether he could come back to work by asking what the Respondent’s ‘plans’ were without having to ask for his job back. It was evident from the Claimant’s own evidence that he was a proud man and he did not want to ask for his job back or reapply for it even when he was told by Mr Terzza that he could do so.

[85]Taking all of the above into account the Tribunal determines that the Claimant did intend to resign on the morning of 16 August 2024 when he said to Mr Terzza and Mr Sanderson, “I’m done with you all” and, as he prepared to leave, “I didn’t want it to end like this”. The Tribunal is satisfied that Claimant’s resignation was ‘seriously meant’, ‘really intended’ and a ‘conscious and rational’ decision at the time when it was communicated to Mr Terzza and Mr Sanderson.

[86]The Claimant did not provide evidence or submit that he resigned in response to a repudiatory breach of contract so as to entitle him to resign (i.e. what is known as a ‘constructive dismissal’) and therefore the Tribunal has no basis on which it could assess and possibly find that a constructive dismissal occurred within the meaning of section 95(1)(c) of ERA 1996.

[87]Having found that the Claimant was not dismissed, there can be no unfair dismissal. Accordingly, the complaint of unfair dismissal is not well founded and must be dismissed. Approved by: