Mr F McBride v Greene King Retail Services Ltd: 8000961/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000961/2025Venue GlasgowHearing 1 and 2 October 2025
Between
Mr F McBrideClaimantGreene King Retail Services LimitedRespondent
Before
Employment Judge L DohertyMr A Crammond (instructed by Counsel) for respondentDate 8 October 2025
JUDGMENT
[1]the claim of unfair dismissal is dismissed; and[2]the claim of breach of contract of dismissed.
REASONS
[1]The claimant presented a claim of unfair dismissal on 22 April 2025. The respondent’s position is that the claimant was not dismissed, but resigned from his employment. A two day final hearing was fixed to deal with merits and remedy. The claimant appeared on his own behalf. Mr Crammond, Counsel, appeared for the respondents. Preliminary issues[2]The first preliminary issue arose out of a reference to a Protected Conversation by the parties in the ET1 and in the ET3. The Tribunal heard the parties’ submissions on the effect of Section 111 (A) of the Employment Rights Act 1996 (the ERA). The Tribunal was satisfied that the effect of that provision is that evidence about that protected conversation was not admissible in relation to the Tribunal’s consideration of the unfair dismissal[3]This evidence is however admissible in so far as it relates to the claimant’s breach of contract claim (dealt with below). The parties had waived the right to confidentiality on the grounds on a without prejudice discussions and communication.[4]Reasons for this decision were provided orally.[5]The second issue arose from the claimant’s inclusion of a breach of contract claim on the grounds that he had been wrongfully dismissed. This claim was set out in an email sent by the claimant on 30 June 2025. It was Mr Cramond’s position that any attempt to include this amounted to an amendment to the[6]Following the decision in Galilee v Commissioners of Police of the Metropolis (2018) ICR 643, consideration of this was held over subject to time bar, and was dealt with after evidence had ben heard.
The issues
[7]It was agreed that the effective date of termination of employment was 31 December 2024.[8]The issues were:(1) Had the claimant resigned ?(2) If he had resigned, had that resignation been rescinded?(3) If he had not resigned or if his resignation had been rescinded , had the claimant been unfairly dismissed in terms of under Section 98 of the ERA?[9]In the event the tribunal finds the claimant was unfairly dismissed, it would have to deal with remedy.
The hearing
[10]The claimant gave evidence on his own behalf.[11]For the respondents, evidence was given by;a. Mr Craig Buchanan (CB) - an ex-employee of the respondents;b. Mr Alex Ashston (AA). – the claimant’s line manager; andc. Ms J Jankiewicz (JJ) - HR Group Reward Director.[12]The parties produced a joint bundle of documents. Findings in fact[13]From the evidence before it, the Tribunal found the following facts relevant to the issues that had to be determined.[14]The respondents are a large company operating in the licenced trade sector. They have around 40,000 employees in total with a mix of salaried and hourly paid employees.[15]The clamant, whose date of birth is 12 November 1958, was employed by the respondents from 3 May 2004 until 31 December 2024 in the role of project surveyor. In Scotland, where the claimant worked, this was a hybrid role involving investment and surveying elements. In England, this role is confined to surveying elements.[16]When the claimant commenced his employment, he was issued with a contract of employment by Belhaven Brewery setting out his terms and conditions of employment. The contract provided for three months’ notice. Claimant’s resignation[17]On 9 July 2024 the claimant had a work catch up meeting with his line manager, AA. In the course of that meeting the claimant indicated that he intended to leave the business. He knew that a colleague, Racheal, was relocating from England to cover an element of his role and he wanted to give notice which allowed suitable arrangements to be it in place for his succession.[18]The following day, on 10 July 2024, the claimant emailed AA as follows: “Hi Alex, following our conversation late yesterday, I write to formalise my intention to leave Belhaven Greene King no later than December 31st 2024, therefore complying in advance of my required minimum 12 week notice period. I am sure this advance notice will help the team resource to cover my current area of responsibility, and with that, enable me to give assistance to the new resource to get their feet under the table before I depart.”[19]AA responded the following day: “On behalf of everyone at Greene King and Belhaven, thank you for your contribution and efforts over a fantastic career. You will be missed. This is an initial acknowledgment, and we will tie in over the coming weeks and months with more detailed plans leading up to the 31st Dec.”[20]A letter was sent by the respondents on 25 July 2024 formally accepting the claimant’s resignation. New Terms and Conditions of Employment[21]In 2024 the respondents were running what they called an HR Ready Project. One of the purposes of this was to bring about a harmonisation of the Terms and Conditions of Employment (T&Cs) across their employees. The process of issuing the new T&Cs to employees was run by an HR administrative team. This involved checking which employees had signed the new T&Cs; manually uploading details of employees who had not signed into an automated DocuSign system; and reminders being sent to employees who had signed from DocuSign.[22]The claimant was sent new T&Cs on 16 July 2024 via an email from a Docu Sign email address. He responded the same day advising that he was serving notice and would no longer be employed as at the date of implementation of the new T&Cs and should not be required to sign them. A response was issued advising the claimant that the contract had been voided.[23]A reminder email asking the claimant to sign the new T&C’s was sent to the claimant on 4 September 2024. He responded the following day advising that he would no longer be an employee at the end of the calendar year and therefore to was unnecessary for him to approve the change in his T&Cs.[24]The claimant however did sign the new T&Cs on 12 September. These were returned to HR. At some point HR advised AA that the claimant had signed the new T&Cs.[25]The new T&Cs took effect from 1 November 2025. By that point all of the respondents salaried workforce had signed them.[26]The new T&Cs issued to the claimant provided for continuity of employment from the claimant’s start of employment date; his salary remained unchanged; from April 2025 normal working hours were stated to be 35 per week. The claimant’s job did not change on signature of the new T&Cs after 1 November 2024.[27]The T&Cs contained the following at clause 27: “This Agreement constitutes the entire Agreement between the Parties and supersedes all prior Agreements, understandings, negotiations and discussions, whether oral or written.” Events post signature of the T&Cs[28]On 13 September 2024, following a Team’s meeting in which there had been mention of voluntary redundancies, the claimant emailed AA stating: “Alex, didn't want to bring this on the call, I go one will be pretty ticked off if there is a voluntary redundancy offer irrespective of enhanced or otherwise. I did what I thought was the right thing to give you and the team advance notice to assist in procurement and a colleague in relocating to Scotland. My original plan was to serve notice at the end of September giving 3 months, not nearly 6 as I did. Pretty gutted to think had I not tendered my advance notice, opportunities may have been different.”[29]There were no redundancies in the claimant’s department.[30]At some point towards the end of September, the claimant had a discission at a work social event with CB, in which he advised him he had signed the new T&Cs. CB was at that point was on Garden leave from his employment with the respondents. CB was not in a position within the respondents organisation to accept a rescission of the claimant’s resignation.[31]On 11 December 2024, the claimant emailed external consultants who worked with the respondents about a business matter. In that email, he referenced his ‘departure in a couple of weeks’. Protected Conversation[32]On 16 December 2024, the claimant emailed AA asking for an informal protected conversation.[33]Following this, a discussion took place between the claimant and AA on 17 December 2024. AA took handwritten notes from the discussion. In the course of that discussion, the claimant indicated that he had signed a new contract and that he did not consider that he had resigned under that contract. The claimant proposed 2 compromises which involved a payment to him. One involved his immediate departure with a payment; the other involved him working for a time limited period and then receiving a payment. The third scenario involved the claimant remaining at work and becoming a poor performer and having to seek medical advice.[34]AA told the claimant that he did not agree with his proposals and offered to set up a meeting with HR. He asked the claimant to put his suggestions to him so they could consider how to go forward.[35]The claimant emailed AA on 27 December 2024. His email included two proposed options in the following terms: “Option 1 As you alluded to on the call, you were preparing to catch up with me over the festive period for lunch and uplift my GK kit, which indicated to me that there was sufficient plans in place to cover for my original departure date at the end of December. I am more than happy to proceed with handing over my laptop phone car etc as discussed however, I would expect the GK to honour the current agreement by offering an ex-gratia severance payment commensurate with my period of service in line with my contract. This may be the simplest less complicated clean option. Option 2. This is the option I attempted to discuss on the call, though it may have not been totally clear and may not suit. Once again, I am offering to help in a smooth transition of me departing via an agreed fixed term period to help the new Surveyor aspect of my role, giving my replacement personal and professional support therefore giving a head start to their career furthermore, still provide assistance and guidance to my recently relocated colleague who now covers the investment aspect of my role. Similar to Option 1, at the end of an agreed fixed term period I would expect GK to honour the agreement by offering an ex-gratia severance payment commensurate with my service, and in line with my contract.”[36]AA took advice from HR. He emailed the claimant on 31 December 2024 stating: “I am writing to confirm your resignation from your employment dated 10 July 2024 and Greene King’s subsequent acceptance of it on 25 July 2024. As no mutual agreement has been made to alter these terms, your final working day with Greene King/Belhaven will be 31 December 2024 as previously communicated.” Termination of employment[37]The claimant’s employment terminated on 31 December 2024.[38]One of the claimant’s colleagues was permitted to work beyond his retiral date. Remedy - findings[39]The claimant’s salary from employment was £62,027.35 gross per year. He received pension contributions of £50 per week. He had a company car. He had private health care.[40]Since his employment has come to an end, the claimant has not applied for work. He was offered a job at some point by Severino Designs but did not take it as he did not consider it financially viable. The claimant has an open offer of employment at his same salary level as he enjoyed with the respondents from a firm of consultants but had not taken this up. He has been approached by an Architectural Practice , but has not taken up their offer. He is currently working as a minor works manager without pay. Time Bar – findings[41]The claimant presented his ET1 within the statutory 3 month time limit applicable to unfair dismissal and breach of contract claims. The claimant had the benefit of advice from a friend who was an HR consultant. He was also able to obtain advice from his daughter, who is a law graduate from time to time. He was aware time limits applied to bringing an Employment Tribunal[42]The claimant had difficulty in uploading is ET1 into the Tribunal portal. In the ET1 which was presented, box 8 is ticked stating that the claimant was claiming unfair dismissal. No other box is ticked.[43]The paper apart to the ET1 contained, among other things, the following: “My current contract is clearly a valid GK agreement signed by me, with the written document issued following my acceptance therefore, base my case on this legal document. I believe GK have breached the agreement between us by terminating my employment without any discussion on 31 December.”[44]In box 9.2 of the ET1, the claimant stated that the compensation he was claiming was, amongst other things, notice pay.[45]The claimant emailed the Tribunal on 30 June 2025 with his response to the respondent’s ET3 in that he set out as one of his heads of claim; wrongful dismissal (breach of contract). The claimant set out a claim for notice pay of 12 weeks’ pay. The claimant also detailed under the heading Remedy, amounts claimed as holiday pay and expenses. Submissions[46]Both parties made oral submissions and Mr Crammond referred to a number of cases. In the interests of brevity, these are not rehearsed here, but are referred to below where relevant. Note on Evidence[47]There was not a great deal of factual dispute in matters which were relevant to the issues the Tribunal had to determine.[48]While the Tribunal did not form the impression that that the claimant set out to deliberately mislead, it did from the impression that from time to time his sense of injustice coloured his interpretation of matters.[49]The tribunal found all of the respondent’s witnesses to be credible, and with the exception of CB, reliable.[50]CB was frank in his evidence that he could remember nothing of the conversation which the claimant put to him took place in late September, or any other conversation in which the claimant had discussed the fact that he had signed the new T&Cs. He did however give credible evidence to the effect that he was not in a position within the company to accept the claimant’s recission of his resignation.[51]The Tribunal found AA’s evidence to be credible and reliable. His credibility as to the conversation on 17 December 2024 was enhanced in that it was consistent with his contemporaneous notes. There was not in any event anything material which was relevant between the evidence of claimant and AA as to what was said. The one conflict which did arise was around whether AA had threated the claimant and his family that if the claimant remained working, the respondents would make life very challenging for him and his family. It was the claimant’s evidence that in response to this statement from AA he stated that if he remained he would become a poor performer and may have to and seek medical intervention. AA denied this. This was not a conflict however which it was necessary for the tribunal to resolve, as untimely for reasons which are dealt with below, it was satisfied that regardless of any proposals the claimant put forward, or how they came about, the respondents did not accept the claimant’s proposals and his resignation stood.[52]JJ ‘s evidence was confined to matters connected to HR Ready and the issue of the new T&Cs and was credible and reliable. Consideration Amendment
Consideration
[53]The first matter which the Tribunal dealt with was the inclusion of the breach of contract claim in respect of failure to give notice, which was said to amount to an amendment by the respondents and objected to.[54]The Tribunal have a broad discretion under Rule 30 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2024 (the Rues) to allow amendments at any stage of the proceedings. The Tribunal’s discretion must be exercised in accordance with the overriding objective in Rule 3 of dealing with cases fairly and justly.[55]The first matter the Tribunal considered was whether amendment was necessary or appropriate. Whether a formal amendment is required depends on whether the ET1 sufficiently particularises the essential complaint that the claimant seeks to make, in this case a claim of breach of contract in respect of failure to give notice. In considering whether the ET1 contains this complaint, reference must be made to the ET1 as a whole. That includes not just the fact that the box at question 8 indicating whether that claim of breach of contract is advanced has not been ticked, but also the contents of the papers apart to the ET1 setting out details of the claim and the information at box 9.2 indicating a claim for notice pay is being made.[56]The Tribunal was satisfied that, read as a whole, the ET1 did set out this claim for breach of contract. The details of the claim include reference to a valid agreement between the claimant and respondent; written documentation; a legal document which the claimant bases his claim on; and an allegation of breach of the agreement by termination of the employment without discussion on 31 December 2024. In addition, the compensation claimed section of the ET1 identifies a claim notice pay .[57]The Tribunal was satisfied that there was sufficient in the ET1 to identify claim of breach of contract by failure to give notice, and that the claimant’s email of 30 June did not amount to an amendment to the claim to include a breach of contract claim in respect of failure to give notice, but simply set out further particulars of it. There was no prejudice to the respondents in answering those particulars as they were able to lead evidence and make submissions on those at the hearing, and therefore the further particulars are allowed in so far as they dealt with a claim of breach of contract in failing to give notice.[58]In so far as the claimant’s email of 30 June 2024 sought to include a claim of unpaid holiday pay or unpaid expenses, the Tribunal was satisfied this did amount to an amendment. There is no notice of either of these claims in the ET1.[59]Following Galilee consideration of whether this claim was time barred was held over for consideration until evidence had been heard.[60]The time limit which applies to claims of this type is set out in 7 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 (the Order) and the relevant provisions of the working Time Regulations. Section 7 provides: 7. Subject to article 8B, an employment tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented—(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or (ba) where the period within which a complaint must be presented in accordance with paragraph (a) or (b) is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (a) or (b),(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.[61]The Working Time Regulations contain a provision in materially the same terms.[62]This is therefore a two stage test. The first part involves the Tribunal in considering whether it was not reasonably practicable for the claim to be lodged in time. The burden of proof rests with the claimant to establish this.[63]The claimant accepted that he was aware of the existence of time limits in bringing to claims in the Tribunal. He also accepted that he had the benefit of advice from an HR advisor, a friend, and also from time to time his daughter who is a law graduate. The claimant may have had difficulty in uploading documents into the Tribunal portal as he explained in his submissions, and this may have caused an oversight on his part in what was ultimately submitted. Such difficulties however or oversight did not meet the test of ‘not reasonably practicable’ in circumstances where the claimant was able to upload his claim in time in respect of the other elements of claim before the Tribunal.[64]The Tribunal was not satisfied that time should be extended on the grounds of reasonable practicability. The result of this is that the claims for holiday payment of and expenses are time barred. There is prejudice to the respondents in allowing such claims in any event as they have not answered them. In the circumstances the application to amend in so far as it relates to holiday pay and payment of expenses is refused. Unfair dismissal claim[65]The right not to be unfairly dismissed is contained in Section 94 of the ERA.[66]Section 95 of the ERA sets out what is meant by dismissal. It states: 95(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.[67]In considering the unfair dismissal claim, the Tribunal reminded itself that it must exclude from its consideration the evidence it had heard and findings made about the Protected Conversation.[68]It is not accepted by the respondents that they dismissed the claimant; it is their position that he resigned. The burden of proof rests with the claimant to show that he was dismissed under Section 95 of the ERA.[69]Whether there has been a resignation or dismissal is a mixed question of fact and law.[70]Both parties agree that the claimant’s employment terminated on 31 December 2024. The issue for the Tribunal is whether that termination was brought about by resignation or by dismissal. The claimant accepts that he tendered his resignation to the respondents in July as confirmed in his email to AA of 10 July 2024. The Tribunal was in any event satisfied that this email was a statement of the claimant’s resignation from his employment with the respondents. It was sent by the claimant following a discussion with his line manager in which he had discussed that he was leaving at the end of the year. The email states that the claimant is ‘formalising his intention to leave… no later than 31 December.’ This was not a statement of intent to leave at some unidentified point, but a formalisation by the claimant that he was resigning from his employment at the latest by 31 December 2024 , giving more that his contractual notice.[71]That resignation was accepted by the respondents by AA on 11 July 2024 and again in a letter of 23 July 2024. AA’s email confirms the date of termination was 31 December 2024, as does his letter of 23 July 2024. There was no suggestion from the claimant at the time that this was not an accurate reflection of his resignation date. The claimant confirmed on 16 July 2024 to HR that he was serving notice to leave GK.[72]As is confirmed in Riordan v War Office 1958 WLR 1046, referred to by Mr Crammond, a resignation once given cannot be revoked or varied unilaterally. This statement of the law reaffirmed in Harris and Russell v Slingsby 1973 NIRC 454, again as referred to by Mr Crammond.[73]The Tribunal considered whether there had been a revocation or variation of the notice of termination, either be an express verbal or written agreement or if it could be implied by conduct, or by a mixture of both writing and conduct. (Butcher v Surry County Council UKEAT/0022/19/LA, at paragraph 38, referred to by Mr Crammond).[74]There was no basis on which to conclude that there had been an express written agreement to waive the claimant’s resignation. Nor is there any basis on which to conclude that there was any express oral agreement to waive or vary the claimant’s notice of termination. The claimant telling CB that he had signed the new T&Cs could not have any impact on his resignation. It was simply a piece of information communicated to CB by the claimant, and CB was in no position to make any decision about any aspect of the claimant’s employment[75]What the claimant does rely on is the fact that on at least two occasions he was sent new T&Cs by the respondent’s HR department and his signature of these. The claimant returned the new T&C’s advising he was servicing notice on the first occasion (16 July 2024) . He also did this in September 2024, however he subsequently signed and returned the new T&Cs. The Tribunal considered if as suggested by the claimant, this meant that he could no longer be taken to have resigned from the company.[76]The Tribunal was not satisfied that anything turned in the fact that the T&Cs had been sent to the claimant on two occasions. The T&Cs had been sent to the claimant twice as part of an HR administrative exercises.[77]The Tribunal was satisfied that the new T&Cs were simply a statement of the new terms and conditions under which the claimant continued in the same employment. In reaching this conclusion it takes into account that the claimant’s continuity of employment was preserved in terms of the contract, his salary remained the same, and he continued to be employed to do the same job , before and after 1 November 2024 when the new T&Cs took effect. Further, the Tribunal accepted that the issue of the new T&Cs was a harmonisation exercise on the part of the respondents of the T&C’s applying across the workforce. This was not a case where it could be concluded that the issue of the new T&Cs meant that employees were being dismissed from their employment and re-employed in a different role under a new contract. The fact that the new T&Cs referred to hours of work in April 2024 could not be read as an acceptance by the respondents of the claimant’s withdrawal of his resignation, or a variation of it. The Entire Agreement Clause ( clause 27) relied upon by the claimant, referred to the terms and condition under which the claimant was employed from 1 November 2024. Employment under that contract continued until the date of his resignation on 31 December. It could not be read as constituting a waiver on the part of the respondents of the resignation given by the claimant in July 2024.[78]In addition, the claimant did not approach his line manager AA, who had accepted his resignation, indicating that he wished to vary or revoke it. He confirmed in email correspondence to HR and to external consultants that he was leaving the business. There was no basis on which the Tribunal could conclude that there had been an agreement, either express or implied by the conduct of the parties to waive the claimant’s resignation.[79]The Tribunal concluded that the claimant’s employment had been terminated by his resignation, and he not by dismissal by the respondents under section 95 of the ERA. The effect of this conclusion is that the claim for unfair dismissal fails and is dismissed. Breach of contract claim[80]The success of the claimant’s breach of contract claim is contingent on it being established that he was dismissed without notice, in breach of his contract of employment. The Tribunal having found that the claimant was not dismissed, this claim must fail and is dismissed.