Mr P Bamford v W M Morrisons Supermarkets plc — 2021

The tribunal held that the claimant’s appeal succeeded and therefore the original dismissal on 11 May 2019 had no effect; the employment relationship was treated as continuing until the claimant’s resignation took effect on 22 July 2019. The remaining question was whether the claimant had been constructively dismissed under s.95(1)(c) ERA 1996 by reason of conduct that amounted to a repudiatory breach of the implied term of trust and confidence.

The claimant relied on the way the investigation and disciplinary process were handled, including alleged delay, lack of clarity in the allegations, the conduct of the disciplinary hearing, a pre-hearing telephone call by the dismissing manager to EH, and the absence of a written investigation report. The tribunal found the investigation was started promptly after the 19 April 2019 incident, that the claimant was not ambushed, and that the questioning of witnesses was fair. It accepted that the allegation wording could have been clearer, but found that the documents provided made it sufficiently clear what conduct was being investigated, particularly the incident with EH and the alleged comment to JC.

The tribunal found that RE’s telephone call to EH shortly before the disciplinary hearing was a mistake and not ideal, but rejected the suggestion that it was made to engineer dismissal. It also rejected the claim that RE had ulterior motives or had predetermined the outcome, and found that RE had considered the claimant’s length of service, disciplinary record, contrition and offer of mediation, even if those matters were not given the weight the claimant wanted. The tribunal accepted that the claimant’s mental health issues were taken into account during the hearing.

On the appeal, the tribunal found that the delay between the appeal and the outcome was 9 weeks rather than 11, and that the delay was unfortunate but not unreasonable in the circumstances, including the claimant’s holiday, the need for further investigation, and the fact that he had not chased for an outcome. Most importantly, the tribunal found that the claimant had already decided to leave before the appeal was concluded, as shown by his appeal letter, his statement at the appeal hearing, and the fact that he obtained new employment very quickly after dismissal. The tribunal concluded that he did not resign in response to any repudiatory breach, so the constructive dismissal claim failed and was dismissed.