Mr M MacDonald v Mr U Razzaq T/a Tay Pharmacy: 8002191/2025
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant was unfairly dismissed and the respondents are ordered to pay the claimant a monetary award of £6,344.50REASONS
[1]The claimant presented a claim of constructive unfair dismissal on the 8 September 2025, which was resisted. A three day final hearing took place between 14 and 16 January 2026. The claimant appeared on his own behalf and the respondents were represented by Ms Cho, counsel.The Hearing
[2]The claimant gave evidence on his own behalf. Evidence was given on his behalf by Jaquline McGregor (JM), his former line manager.[3]For the respondent, evidence was given by:a. Umar Razzaq -the respondent and the proprietor of the business;b. Roxsanne Fitzpatrick (RF) -Operations Manager for the Respondent;c. Evelyn Ingham (EI) -Pharmacy Dispenser for the Respondent; andd. Kelsey Gregan (KG) -Operations Support Manager.[4]The parties lodged a joint bundle of documents. The issues Constructive unfair dismissalThe issues
[5]The issue is whether the respondent breached a fundamental term of the claimant’s contract of employment, in response to which he resigned.[6]Two separate alleged breaches of contact are relied upon. The first term relied upon is that the claimant was entitled to use of the pharmacy delivery vehicle for the purposes of his commute to and from work. This is said to have been breached when he was advised in August 2025 from September 2025 that would no longer be the case, and that that the delivery vehicle would have to be left at the Pharmacy.[7]The issue is whether it was a term of the claimant’s contract that he was entitled to use the delivery vehicle to commute to work; and if so, has it been breached; and if so, was this a fundamental breach of his contract in response to which the claimant resigned.[8]The second and separate breach relied upon is said to be a breach of the duty of care regarding failure to adhere to and follow the ACAS code of practice with regard to the rules and regulations regarding grievance procedures. This relates to a grievance procedure which the claimant commenced in December 2024. There was reference to a grievance raised by EI in December 2024, however the claimant’s position was that he did not know that such a grievance had been raised until the disclosure of the documents for the tribunal hearing, and therefore how this grievance was dealt with could not form any part of the reason why he resigned.[9]The issue is whether the respondent failed to adhere to an ACAS code of practice in the conduct of the claimant’s grievance procedure; if so, did this amount to a fundamental breach of the implied term of mutual trust and confidence in the claimant’s contract of employment, in response to which he resigned.[10]The issue on remedy is what losses the claimant has suffered as a result of dismissal, it his claim succeeds. Holiday pay[11]The claimant confirmed that no claim for holiday pay is pursued. Findings in fact[12]The respondent is the proprietor of 13 pharmacies, which employ a total of around 130 staff, including around 15 delivery drivers. The pharmacies include Tay Pharmacy (Tay)which is situated in Luncarty on the outskirts of Perth, and Bertha Park (Bertha) in Perth.[13]The Claimant, whose date of birth is 2/11/1962 was employed by the Respondent as a Pharmacy Delivery Driver (PDD) from 3 November 2022 until 15 August 2025. He was contracted to work 22.5 hours per week, with a rate of pay of £12.50 per hour. It was agreed that his gross weekly wage was £281.25.The claimant was in receipt of a Nest pension at the rate of around £22 per month.[14]It was agreed that the claimant’s loss of earnings arising from the loss of his employment from 15 August 2025 until the date of the Tribunal hearing was £5,647.50.[15]The claimant resides in Errol, which sits approximately halfway between Dundee and Perth. Prior to commencing his employment with the respondent he had worked with Boots in Perth as a PDD for 3 years. The claimant does not own a car and does not have access to a car between the hours of around 8.30am to 4.30 pm. He travelled to and from work at Boots by bus from a bus stop very close to his home, which took him directly into Perth.[16]At some point prior to the beginning of September 2022, the claimant received a telephone call from the respondent, who asked him if he would be interested in coming to work with him as a PDD at Tay Pharmacy. Tay was a new business for the respondent, situated in Luncarty. The claimant responded indicating that he was interested.[17]On 3 September 2022, the claimant set the respondent a text message advising that the distance from his cottage to Luncarty was approximately 18 miles and expressing an interest in the job. The message stated: “The only issue is transport but if you are happy for me to take the van then would definitely be interested if you think it’s feasible then look forward to a meet.”[18]The respondent subsequently met the claimant in Starbucks for an interview. In the course of the interview, the claimant advised the respondent that he lived in Errol. The claimant told the respondent that he did not have a car and that he had travelled to Boots by bus and raised a question about how he was going to get back and forward from Errol to Luncarty.[19]There is no direct bus from the claimant’s house to Luncarty and travel from his home to Luncarty would necessitate waiting time and a change of bus in Perth, and a journey time of around 1.5 to 2 hours. The claimant did not consider it feasible to travel to Luncarty by public transport on account of the length of the journey.[20]The respondent told the claimant that he would give him the pharmacy delivery car to commute back and forward to work. The claimant accepted this and agreed to accept the PDD job at Tay Pharmacy.[21]The claimant was impressed with the respondent’s views of how important the role of PDD was to the business and this was a persuasive factor for him in taking the job.[22]The respondent can decide if a PDD can use the delivery vehicle to commute back and forward to work. Of the 15 drivers the respondent currently employs, some drivers do use the vehicle to commute. Those who use the vehicle to commute have hours of work which match the opening hours of the pharmacy where they work.[23]The claimant commenced his employment with the respondent on 3 November 2022. His hours of work were originally 9.30 am to 1.20pm. His line manager was JM. The claimant was not issued with a written contract of employment or any other documentation when his employment commenced.[24]The respondent opened another pharmacy at Bertha Park (Bertha). From January 2023, it was agreed that the claimant would cover Tay and Bertha. His start and finish times changed to 8.30am to 12. 30pm but his core number of working hours did not change and he worked overtime where required. Bertha generally only required between 1.5 and 2 hours work.[25]In the period up until January 2024, the claimant drove a variety of delivery vehicles in the conduct of his duties, some of which were hired vehicles. From January 2024, the respondent acquired a branded Tay Pharmacy vehicle which the claimant drove. The claimant used all of the delivery vehicles he drove to commute.[26]On one occasion, the claimant hired a car on behalf of the respondents to carry out deliveries. In June 2025, the claimant went on leave at fairly short notice and was asked to leave the delivery vehicle for another driver for his period of his leave, which he did.[27]On 28 October 2024, the claimant was issued with a written contract of employment by JM. The contract was signed and dated by respondent on 10 November 2022. It was signed by the claimant on 28 October 2024.[28]The contract did make any reference to the use of the company vehicle by the claimant.[29]The contract contained an Acceptance of Conditions clause which stated: “Acceptance of the offer of employment will be deemed to imply acceptance of these conditions. Any changes to the terms set out in this document will be advised to you in writing within one month of the change and implemented only following consultation.”[30]The final clause in the contract under the heading Rules and Procedures states: “This written statement of particulars of employment supersedes any previous agreement that may have been in place or entered into between the employee and the Company in connection with employment with the Company and is limited to the jurisdiction of the course of Scotland over any claim or matter arising under or in connection with it.”[31]In November 2024, the claimant was also issued with a staff handbook by JM, which contained a grievance policy. The grievance policy provides that if informal resolution of the grievance cannot be achieved, the following procedure will apply: i. You should send a written complaint to the pharmacist/manager outlining the nature of the alleged grievance. ii. You will be invited to a meeting so that your grievance can be discussed. iii. After the meeting, and any further investigation that may be necessary, you will be informed in writing of the outcome and your right of appeal. iv. If you lodge an appeal, a further meeting will be held. The appeal meeting will be held by a manager of a similar or higher level (where reasonably practicable). You will be informed in writing of the outcome of the appeal.[32]In November 2024, the respondent put in place a Delivery Driver Guide (the Guide). The claimant was provided with a copy of this by JM. This Guide prohibited personal use of company delivery vehicles and provided that any such use was restricted to exceptional circumstances, and only with prior managerial approval.[33]The Guide made provision for drivers who take vehicles home and provided: “You are permitted to drive the van between your normal place of residence and your places of work at the start and end of each working day. This normal commuting is not regarded as personal use and will not result in taxable benefit. In the event of an exceptional requirement such as a medical emergency, you should contact your line manager immediately and obtain authorisation before using the van for a personal journey.” Grievances[34]On 9 December 2024, EI raised a formal grievance against the claimant. She sent this to KG. The claimant was unaware of this until after he received the respondent’s Tribunal Productions.[35]KG decided to visit Bertha on 9 December 2024 as she was concerned about EI. On 9 December 2024, KG asked the claimant to attend a meeting to discuss the atmosphere at Bertha. The claimant agreed to do so but wanted his line manager present, and JM also attended the meeting. KG made suggestions at that meeting as to how matters might be dealt with. One of these was that the claimant no longer did the Berta deliveries and that he left the delivery vehicle at Bertha. The claimant refuted EI’s allegations against him. He also said that had not agreed with the respondent that he would leave the car at the pharmacy after his shift completed.[36]The claimant emailed KG on 9 December 2024, copying RF and the respondent. He recorded in that email that KG had suggested he would leave the delivery vehicle every day at 2pm and that the respondents would employ another driver, and that the claimant had explained this was not the agreement he had with the respondent when he offered him the job and realised the claimant did not live in Perth. The claimant stated that the respondent had agreed he could take vehicle home at end of shift. The claimant asked for a transcript of the meeting. This was not provided.[37]The claimant then raised a formal grievance on 11 December 2024. This was sent to JM at her work email address.[38]RF and the respondent discussed matters and concluded that if the grievances went further, RF would have to deal with them. The respondent decided that he would try to resolve matters informally with both parties. He contacted EI and the claimant separately by telephone on the 17 December 2024.[39]The claimant followed his conversation with the respondent on 17 December up with a text which included: “I continue covering Bertha till such time as further driver needed and no further talk of me leaving vehicle at Bertha daily.”[40]Both parties considered that their grievances had been resolved informally after the telephone call on the 17 December 2024. However, the claimant continued to experience difficulties which he emailed JM about. He did not however raise any other formal grievances.[41]The claimant continued to commute using the company delivery vehicle.[42]By 7 February 2025, the respondent formed the view that matters remained tense at Bertha and he conducted a face to face meeting with the claimant and EI in an attempt to resolve this. In the course of this, the claimant provided details for an alternative driver for Bertha. The respondent confirmed that the claimant could continue to use the vehicle for his commute.[43]In or around March 2024, another driver was recruited by the respondent to carry out the Bertha deliveries. He was paid millage for his travel, which was a cost to the respondent, sometimes in the region of £100 to £120 per week. Bertha was becoming busier and was providing services to a nursing home. This meant that on occasion there could be urgent deliveries at 4.30/5pm.[44]By some point shortly before 15 August 2025, the respondent decided that based on the needs of the business, the claimant should leave the delivery vehicle at Tay Pharmacy rather than use it to commute. He discussed this with RF.[45]On 15 August 2025, RF telephoned the claimant while he was out on deliveries and told him that she had spoked to the respondent, and with Bertha becoming busier the delivery vehicle needed to be left at Tay and she was giving him 4 weeks’ notice. The claimant, mistakenly took this as 4 weeks’ notice of termination of his employment.[46]The claimant asked her to put it in writing and terminated the call, hanging up the phone. RF tried to call back twice, unsuccessfully.[47]RF emailed the claimant at 11.21am stating: “As discussed on our phone call, With Bertha Park store becoming increasingly busy, especially with several new nursing home contracts starting soon we need the vehicle to be available for the Bertha Park driver in the afternoons to meet business needs. This is a reasonable request, as the vehicle is a delivery vehicle rather than a company car. Therefore, we require it to be left at Tay Pharmacy from Monday, 15th September. It seems our call was cut off earlier. If you have any questions, please don’t hesitate to give me a call.”[48]The claimant was still out on deliveries when the email was sent and he did not access it. When he returned to Tay, he told JM that he was resigning. The claimant considered that he could not continue to work for the respondent if he did not have the use of the delivery vehicle for commuting purposes as he did not own or have access to his own vehicle in order to travel back and forward to work; public transport was not an option for him due to the time and extent of the travel involved. He felt that there was no comeback from this and was not prepared to continue to work with the respondents. He did not look at the email from RF , or consider lodging a grievance before resigning.[49]The claimant emailed JM on the 15/8 at 13.55 stating: “Dear Jacqui as a result of a telephone conversation with Roxanne this morning and I quote. Hi Murdo I need to talk about the car I know it was agreed you would take car home with you but I have spoken to Umar and we need the car in the afternoon so I'm giving you 4 weeks’ notice, terminating your employment. It has become clear that this is a clear breach of my contract, already discussed in an earlier grievance I had raised with the company where I was assured matter would be resolved with the status quo in relation to the vehicle being sorted. This decision to terminate my employment along with other issues leaves me with no choice but to tender my resignation with immediate effect.”[50]FR emailed the claimant on 15 /8 /25 at 15.33 stating: “I just wanted to clarify following our phone conversation and my earlier email — there is no intention to terminate your contract in four weeks. The only change we are requesting is that the delivery vehicle be left at Tay Pharmacy at the end of each shift, as it is used for deliveries rather than as a company car. I’d encourage you to take the weekend to reflect on your decision to resign, as we value the contribution you make to the team. If there are any concerns or misunderstandings about this change, I’d be happy to sit down with you to talk them through. As discussed with Jackie, we will arrange for the car to be collected from your home address on Monday.”[51]The claimant did not retract his resignation.[52]The claimant returned the car to the respondents. He did not return to work after 15 August 2025, which was the last date of his employment.[53]The claimant was considered to be a good employee by the respondent.[54]On the 15 August 2025, RF wrote a statement of her recollection of what she said to the claimant in her telephone call, as she was concerned that there may be issues after her tele[hone call to him. She also asked KG, who shared on office with her, and who had been present when the telephone call to the claimant took place, to do the same. KG statement recorded that the telephone call was very short. Her statement included that RF told the claimant that they would like him to leave the delivery car at Tay Pharmacy at the end of his shifts. She said she appreciated this was new to him so he would have four weeks’ notice to sort things out. Post employment[55]The claimant made applications for around 3 or 4 posts at a Delivery Driver via the website Indeed in the period of around few weeks after his employment came to an end. He was not successful in any of these applications and did not receive a written record of his applications as a result of having applied via Indeed. The claimant then stopped applying for work, as he felt that the tribunal procedure took over. The claimant has applied for a post at a PDD with another pharmacy and his name is held on reserve in respect of this He is hopeful that he will obtain this post after the tribunal proceedings are completed. The claimant does not own a vehicle and therefore cannot undertake courier work.[56]As a result of stopping work, the claimant surrendered his Nest pension and achieved a surrender value of £1,644.17 after tax.[57]The claimant has not received state benefits. Note on Evidence[58]The Tribunal heard a considerable amount of evidence, some of which was not necessarily relevant to the issues which it has had to determine. The Tribunal has sought only to deal with matters relevant to its determination.[59]The Tribunal generally found all of the witnesses to be in the main reasonably credible and reliable. It formed the view that, in the main. such differences as there were in the evidence of the witnesses were explained by the fact that there were genuine differences between witnesses recollections or interpretations of matters, or a lack of recall, as opposed to a deliberate intention to mislead to the Tribunal.[60]The Tribunal formed a generally favourable impression of the claimant’s credibility and reliability, with an exception as to what was said on 15 August 2025, which is dealt below. The claimant gave his evidence in a clear and measured manner, and made appropriate concessions, for example accepting that he has only raised one formal grievance and that it had been dealt with in the telephone call of 17 December 2025, and as to the number of jobs he had applied for.[61]JM was a credible and reliable witness and, in any event, the Tribunal did not understand her evidence to be controversial. It was mainly confined to documents she gave to and received from the claimant, what the claimant told her, and her attendance at the meeting on 9 December 2024.[62]KG gave evidence about her involvement in the meeting of 9 December 2024 and EI’s grievance email. She said that she told the claimant EI had raised a grievance, which the claimant disputed. Nothing however turns on this as EI’s grievance did not form part of the claim. KG also gave a statement as to what she heard RF say on 15 August 2025, dealt with below.[63]RF gave evidence about a number of matters. There was a dispute as to what was said by her on the telephone call to the claimant on 15 August 2025, which is dealt with below.[64]EI gave evidence about the grievance she raised and how it was dealt with and the meeting in February 2025. Nothing material turned on her evidence.[65]The respondent gave evidence on a number of matters including operational aspects of his business and how the grievances were dealt with. He also gave evidence as to the discussions which took place between himself and the claimant prior to the claimant accepting the offer of employment and starting to work for him.[66]It was the claimant’s evidence that he was working for Boots for 3 years prior to November 2022. He was approached by the respondent asking if he would be interested in the job of PDD at Tay. They had a telephone conversation followed by an interview in Starbucks. In the course of their discussions, the claimant told the respondent that he did not own a car and travelled to work at Boots by public transport; he told that he lived in Errol and he questioned how he would get from Errol to Luncarty. The claimant’s evidence was that the respondent said that he would give him the delivery vehicle to commute back and forward to work. The claimant accepted this and took up the job offer.[67]The respondent’s recall of what happened was less clear than the claimant’s. The respondent’s position in the ET3 what was that it was verbally agreed between the parties that subject to business operational needs the claimant was permitted temporarily to use the delivery vehicle to commute between his home and work until the claimant secured his own transportation.[68]The respondent could not recall any conversation prior to the text messages, which the respondent had produced, sent by the claimant providing details of the distance between his home and Luncarty, and he could not recall if he had approached the claimant or of the claimant had applied for the job. The respondent accepted that he had agreed that the claimant could use the delivery vehicle to commute back and forward to work. He agreed that he knew the claimant had worked in Boots and that the claimant had told him he did not have a car and used public transport to travel to work at Boots. The respondent said there was a discussion at the interview about the claimant taking the vehicle. He said the claimant asked if he could take the vehicle, and as a gesture of good will or a favour to the claimant he agreed to this; it was mutually beneficial to both parties .It was the respondent’s evidence in cross examination was that it was his intention this was a temporary arrangement; he accepted that he did not think about how long the ‘temporary’ agreement would remain in place or that this had been agreed. He accepted in cross that he did not have a time limit in mind; he said that was not necessary due to the fact it was a new business.[69]On balance, given the respondent’s candid acceptable as to a lack of recall about certain matters, and his acceptance that some matters had not been discussed ( i.e. that he did not agree that the claimants use of the delivery vehicle was a temporary arrangement), and the claimant’s generally credible and reliable evidence, the tribunal preferred the claimant’s version of how the job came about and what was discussed and agreed at the interview with the respondent. In any event, it was not actually suggested by the respondent that there was any time limit or contingency suggested by him or agreed to by the claimant about the use of the delivery vehicle to commute when he accepted the job.[70]The most direct conflict in the witness evidence arose out of what was said in the telephone call of 15 August 2025. The claimant’s evidence was to the effect that RF told him he had 4 weeks’ notice of termination of his employment during the call of 15 August 2025. RF denied saying that the claimant had 4 weeks’ notice of termination of employment; she said it was 4 weeks’ notice to return the car. Both witnesses’ versions of what was said on the telephone call are supported by contemporaneous evidence. The claimant emailed JM on 15 August 2025 stating that he had been given 4 weeks’ notice of termination of employment. RF emailed the claimant on 15 August 2025, both before and after his resignation email, in terms which suggested this is not what she has said. Further, both she and KG recorded what they recall being said in the telephone call shortly after the call took place, in anticipation of an issue arising. KG’s statement was that the language used by RF was that she was giving him 4 weeks’ notice to sort things out.[71]On balance, the Tribunal was persuaded that there was a genuine misunderstanding between RF and the claimant as to what was conveyed on that telephone call and that RF did not say to the claimant that she was giving notice of termination of employment. Rather, the Tribunal concluded that she said that she that she was giving him 4 weeks’ notice. The Tribunal was satisfied that, on balance, she intended this to be notice of the requirement to leave the car at Tay , which the claimant took to be 4 weeks’ notice of termination of employment. In reaching this conclusion, the Tribunal takes into account that there was no plausible reason why the respondent would want to dispense with the claimant’s services. He was clearly considered to be a good employee by the respondent. The evidence of both the respondent and RF about their discussion prior to the telephone call on 15 August 2025 did not include any consideration of dismissing the claimant. The respondent’s concerns were all based on the needs of the business and the extra cost which was being incurred by the employment of another driver who did not have the use if the delivery vehicle. Submissions[72]Both parties made oral submissions and Ms Cho also produced skeletal arguments. In the interests of brevity these are not set out here, but are dealt with below where relevant.Consideration
[73]Section 95 of the Employment Rights Act 1996 (the ERA) provides:(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, 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 contract for a fixed term and that term expires 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.[74]The Tribunal understands the claimant’s case to be that this was a dismissal under section 95 (1) (c) of the Employment Rights Act 1996 (the ERA); what is commonly referred to as a constrictive dismissal. It was the claimant’s case in his ET1 that he was relying upon two separate breaches of contract, firstly with regard to the use of the delivery vehicle, and secondly, with regard to a breach of the duty of care regarding a failure to adhere to the ACAS code of practise with regard to the rules and regulations of regarding the grievance procedure.[75]It was the claimant's evidence that in the course of a telephone call on 15 August 2025 he was given 4 weeks’ notice of termination of his employment, however for the reasons given above the tribunal did not accept that that had been said further, and in any event, the case contended for by the claimant was that it was a breach of his contract term with regard to the use of the delivery vehicle, which caused him to resign, not that he was dismissed for no reason and with no procedure, on 4 weeks’ notice.[76]In considering a claim of constructive dismissal, the Tribunal reminded itself that in order to succeed in a constructive dismissal claim the employee must establish that:• there was a fundamental breach of contract on the part of the employer that repudiated the contract of employment• the employer’s breach caused the employee to resign, and• the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[77]The Tribunal is dealing with two alleged separate breaches of contract, and began by considered the first breach relied upon. That is a breach of what was said to be the implied term that the claimant had the use of the delivery vehicle to commute to work.[78]In considering this, the first question for the Tribunal is whether there was it a term in the claimant’s contract of employment to the effect that he had the use of the delivery vehicle to commute to work?[79]Ms Cho made submissions as to how a term can be implied, submitting that there was no basis for such a term to be implied on the basis of business efficacy; that it was so obvious that parties must have intended it; that it represented the custom and practise in the employment and was ‘reasonably certain and notorious’; or that the conduct all the parties demonstrated an intention to include the term.[80]Notwithstanding the claimant's position in the ET1 that there was an implied term in his contract, the Tribunal heard evidence from both the claimant and respondent as to an express agreement which was made about the claimant’s use of the delivery vehicle in order to commute when his employment commenced.[81]For the reasons which are given above in the Note on Evidence, the Tribunal was satisfied that it had been agreed between the claimant and the respondent at interview that the claimant would have the use of the respondent’s delivery vehicle to commute back and forward to work. The Tribunal was satisfied that it was an express term, agreed orally between the parties, that the claimant had the use of the delivery vehicle to commute to work, and that such an express term had been agreed without any limitation as to time, or subject to any contingency.[82]Ms Cho was asked to comment on the proposition that there was an express term, as opposed to implied term, of the contract to the effect that the claimant had the use of the delivery vehicle to commute. Her position on this was that such an express term was inconsistent with the acceptance clause and the Rules and Procedure clause of the written contract which the claimant signed.[83]Express terms may be oral or written. If the express terms of a contract are partly written and partly oral, then the oral terms and written terms must be read together.[84]The claimant did sign a contract with an Acceptance clause and Rules and Procedure clause as set out in the findings in fact. The purpose of these clauses was to ensure that the claimant accepted the written terms and conditions and that the terms of the written contact superseded any earlier agreement that may have been entered into.[85]The Tribunal considered the reality of the contractual dealings between the parties in order to satisfy itself that that the written contract did represent the whole bargain. Inconsistencies in the way the contact was performed in practise are likely to suggest that the clauses relied upon by the respondents are not conclusive.[86]In considering this matter, the Tribunal take into account a number of factors. Firstly, it was satisfied that there was an express oral agreement when the claimant commenced employment that he had the use of the delivery vehicle to commute to work. The written contract was silent on the use of the delivery vehicle for commuting purposes. By that time the contract was signed in October 2024, the claimant had been using the delivery vehicle to commute to work since November 2022, and he continued to use it without interruption after he signed the contract, up until August 2025. In cross examination, Mr Cho drew attention to the fact that on one occasion the claimant hired a vehicle on behalf of the respondents and that on another he left the vehicle at the pharmacy while he went on holiday. The Tribunal did not consider that anything turned on either of those matters. The vehicle was hired by the claimant for the respondent, and the claimant did not use the vehicle to commute while he was on holiday.[87]Having regard to these matters, the Tribunal was not satisfied that the acceptance clause and rules and procedure clause was conclusive of the position contended for by the respondent. When the written agreement was looked at in the context of what was actually negotiated , and how it operated in practice, it was clear that it did not reflect the entire bargain between the parties, and it was therefore permissible to look beyond the terms of the written agreement signed in 2024 when determining the question of whether it was a term in the claimant’s contact of employment that he had the use of the delivery vehicle to commute to work. For the reasons given above, the Tribunal was satisfied that there was an oral agreement that the claimant had the use of the delivery vehicle to commute, which was reached when the claimant commenced working, which operated throughout his employment , and it was satisfied that the claimant’s being given use of the delivery vehicle in order to commute to work was a term of his contract of employment.[88]The Tribunal then considered if that term had been breached. A breach can be actual or anticipatory. The Tribunal satisfied that RF’s telephone call on 15 August and her follow up emails clearly indicate that from 15 September 2025, the claimant would no longer have the use of the delivery vehicle to commute. Indeed it was not suggested otherwise by the respondents.[89]Where the employer indicates that the employee’s contract is to be breached, the employee is not obliged to wait and see if the employer caries out the threat and the Tribunal was satisfied that there had been an anticipatory breach of the claimant’s contract when RF advised the claimant on 15 August 2025, on 4 weeks’ notice, that that he would no longer have the use of the vehicle to commute.[90]The question then was whether this breach amounted to a fundamental breach of contract. The Tribunal notes that Ms Cho made submissions on whether the respondents acted without reasonable and proper cause. Such submissions are relevant to consideration of an alleged breach of the implied term of mutual trust and confidence; however, the Tribunal is dealing here with the alleged breach of an express term of the contract. Generally, the employer’s motives or reasons for acting are irrelevant. The key question as to whether a breach is fundamental is one of fact. Relevant to the Tribunal’s consideration of this is the effect the breach had on the claimant. The Tribunal was satisfied that the effect on the claimant was very considerable. He did not have access to private transport and his commute to work by public transport would take an estimated 1.5 to 2 hours each way which he did not consider feasible. The Tribunal was satisfied that having regard to this, the claimant being told he no longer had the vehicle for commuting purposes from 15 September 2025, amounted to a fundamental anticipatory breach of contract.[91]The question then is: did the claimant resign in response to that breach?[92]The main thrust of the claimant’s case was that it was the respondent withdrawing his use of the delivery vehicle for commuting purposes which caused him to resign. This was the basis on which he presented his claim of unfair dismissal, as opposed to on the basis that he was dismissed for no reason, and with no procedure, on 4 weeks’ notice.[93]As referred to by Ms Cho in her submissions, when it was put to the claimant in cross examination that he had been given 4 weeks’ notice of the need to make different transport arrangements, he denied that being said, and said if it had it may have been a different ball game. The Tribunal take that into account in assessing the reason why the claimant resigned. That statement has to be weighed against the claimant’s evidence to the effect that even if he had seen the two emails RF sent he would still have resigned; that even after he saw these emails he did nothing to try to retract his resignation; and that his evidence was that reason for his resignation was that he could not continue to work without the use of the vehicle to commute. Given the difficulties of the claimant’s travelling to work by public transport, it was plausible that the claimant did consider that to be the case. On balance, the Tribunal was satisfied that the reason the claimant resigned was because he was told that he would no longer have the use of the delivery vehicle to commute from September 2025. The Tribunal therefore concluded that the claimant resigned in response to what was a fundamental breach of contract. Second alleged breach[94]In light of the conclusion above, it was unnecessary to consider the second and separate alleged breach of contract. In any event , even if there had been a fundamental breach of contract on the part of the respondent in how the claimant’s grievance was handled, the claimant had acquiesced in that breach in that he had continued to work with the respondents from December 2024 or at the latest February 2025, when the grievance was dealt with till august 2025.Remedy
[95]In light of the Tribunal’s conclusion that the claim succeeds, it went on to consider remedy.[96]The remedy sought is compensation.[97]The claimant is entitled to a basic and compensatory award (section 118 (a) and (b) of the ERA). The basic award is calculated on the basis of the claimant’s age (1.5 weeks’ pay for each year worked over the age of 41) and full years length of service, counted backwards from the date of the commencement of his employment. The claimant had worked from 22 November 2022 till August 2025, which is 2 full years of service. He was 62 years old at the date of dismissal and is therefore entitled to one and a half weeks pay for every full year worked.[98]It was agreed that the claimant’s gross weekly pay was £281.25. The basic award is calculated on the basis of gross pay and is therefore: £281.25 x 2 x 1.5 =£843.75[99]The compensatory award is calculated under section 123 of the ERA and is based on net pay. There was no clear agreement on the claimants net weekly wage, however the parties did agree that the claimants net loss of income from the date of dismissal up until the employment Tribunal hearing was £5, 647.50. The claimant did not seek any future losses.[100]The respondents raised in their ET3 that the claimant had failed to mitigate his loss and they lodged job advertisements. The claimant was taken to these, but the claimant volunteered in cross examination that these advertisements were for courier jobs, which he could not take as he did not have his own vehicle. The claimant accepted that he only applied for around three jobs to date; he thereafter stopped applying as he felt the tribunal process took over.[101]The Tribunal considered what steps the claimant should reasonably have taken to mitigate his loss. That was to continue to apply for jobs in the period up until the date of the Tribunal hearing. The Tribunal had no evidence however of what jobs might have been available, which the claimant could have applied for. The onus of showing the claimant has failed to mitigate his loss rests with the respondent, and although the claimant was asked about what jobs he applied for in cross examination, no submissions were made on failure to mitigate.[102]The claimant did not seek any future losses, and the Tribunal, taking a broadbrush approach as it is entitled to do, concluded that had the claimant continued to apply for jobs it was likely that he would have secured one by the time of the Tribunal hearing. On that basis, it therefore made a compensatory award of the agreed figure of £5,647.50.[103]The claimant provided details of the pension which he had to draw as a result of the dismissal and the values of that, however, the Tribunal was unable to conclude that the claimant having drawn this pension gave rise to a loss which the Tribunal was able to quantify and attribute to his dismissal.[104]The Tribunal also made an award of loss of statutory rights of £400.[105]Both sides suggested there should be an adjustment of the compensatory award on the basis of a failure to comply with the ACAS code. On the claimant’s case, this was on the basis that the respondents had not followed the ACAS code in their conduct of the grievance procedure. The uplift applies if there is a failure to apply the code to a disciplinary situation, and therefore any failure in the conduct of an earlier grievance hearing was not relevant to the Tribunal’s assessment of the compensatory award here.[106]Ms Cho submitted that the award should be reduced by 25% as the claimant did not lodge a grievance.[107]Section 207A of the Trade Union and Labour Relations Consolidation Act 1992 ( TULCR) provides; (1)This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2. (2)If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a)the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b)the employer has failed to comply with that Code in relation to that matter, and (c)that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%. (3)If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a)the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b)the employee has failed to comply with that Code in relation to that matter, and (c)that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the employee by no more than 25%.[108]Schedule 2 A of TULCRA includes a claim to a Tribunal of unfair dismissal under section 111 of the ERA, which includes a claim of constructive unfair dismissal.[109]Section 32 of the ACAS Code provides that an employee should let an employer know of the nature of their grievance[110]The Tribunal was satisfied that a complaint to an Employment Tribunal under section 111 of the ERA was a claim to which the ACAS code applied . It was satisfied that the claimant had not lodged a grievance before resigning ( indeed it was not suggested otherwise by the claimant). The Tribunal then considered it that failure was unseasonable.[111]The claimant acted in a hasty manner in submitting his resignation. He cut off his telephone call to RF, and tendered his resignation before reading the email which she sent, having been asked to ‘put it in writing’ by the claimant. The Tribunal was satisfied on the basis of from the speed of his resignation that the claimant did not contemplate raising a grievance. The Tribunal was satisfied that the claimant’s failure to contemplate raising a grievance, in circumstances where he had asked the respondents to put their position in writing, but did not consider this before resigning, where he was aware of the existence of a grievance policy, was unreasonable.[112]The Tribunal then considered whether it that it was just and equitable to make a reduction to the compensatory award. In considering this it takes into account that there was no attempt on the part of the claimant to comply with the ACAS code. It also takes into account however, that the claimant , albeit erroneously, thought that he was being told his employment was coming to an end. Albeit that was not the reason why the Tribunal found the claimant resigned, it considered that that was a circumstance which mitigated the blameworthiness of the failure to comply with the ASCAS and taking that into account it was satisfied that it was just and equitable to reduce the compensatory award by 10%. The total award is calculated as follows: Basic award - £843.75 Compensatory award - £5,667.50- 10% =£5,100.75 Loss of Statutory Rights - £400 Total - £6,344.50[113]The claimant did not receive benefits and the recoupment regulations do not apply.