Mrs C Thomas (Lay representative) For the v Miss D McGuire (Solicitor) — 2023

The claimant brought a constructive unfair dismissal claim after resigning with effect from 23 September 2022. The tribunal heard evidence about an incident on 21 June 2022 at HMP Brinsford, when the claimant obtained a gate pass to take recording equipment onto the prison site to replace CCTV equipment in the stores. The respondent investigated the incident, suspended the claimant on 23 June 2022, and later received a request from the prison's Head of Security and Intelligence that he should not return to Brinsford while the investigation remained ongoing.

Applying the constructive dismissal approach in Western Excavating and the five questions identified in Kaur v Leeds Teaching Hospitals NHS Trust, the tribunal held that there had been no fundamental breach of contract by the respondent. It accepted that there was a need to investigate the complaint raised by HMPPS and found that the respondent had tried, unsuccessfully, to have the exclusion decision reversed. The claimant was offered alternative work, accepted a new role on 26 July 2022, and then waited about four weeks before resigning on notice. The tribunal found that he had not identified the most recent act or omission that caused his resignation, and that by accepting the new role and waiting before resigning he had affirmed the contract.

The tribunal also found that transferring the claimant away from Brinsford was not, of itself, a repudiatory breach of contract, including in light of clause 2 of his contract which stated that if prison security clearance was refused or revoked it was unlikely he could continue to work on site and that notice could be given if he could not be deployed elsewhere. It therefore concluded that the claimant resigned and was not dismissed. His claim for constructive unfair dismissal was dismissed. The tribunal also recorded that the claimant raised no grievance about the matters relied upon in the claim.