Mr S Ward (1) and Mr B Sullivan (2) v Ann’s Cottage Warehouse Ltd — 2019

The tribunal heard the two claims together and found that both Mr Ward and Mr Sullivan resigned because of the sense of injustice they felt after receiving final written warnings, not because they were leaving to take new jobs. The relevant events arose from a works social gathering on 19 September 2018, when employees viewed images on a phone relating to a colleague, Ms X, on a swingers website. The tribunal accepted that Messrs Ward and Sullivan were involved in the incident and that complaints were made by other staff the following day.

The tribunal held that the company made procedural errors in the disciplinary process, but that those errors were not, taken together, a fundamental breach of contract. The decisive issue was the company’s treatment of Mr Andrew Nuttall, who had also been involved in the incident. The tribunal found that he was not dealt with in the same way as the claimants, that the company did not properly investigate his role before the claimants’ appeals were decided, and that the note of his interview was not disclosed to them until after the appeal outcomes. On the balance of probability, the tribunal found that the company wanted to suppress or minimise Mr Nuttall’s involvement while showing no comparable clemency to the claimants.

The tribunal concluded that this amounted to a repudiatory breach of the implied term of trust and confidence and therefore to constructive dismissal. It also found that the claimants did not affirm their contracts by waiting about ten days after their appeal outcomes before resigning. The tribunal rejected any suggestion of a conscious dismissal by the employer, so the claims succeeded as unfair constructive dismissal claims.

On remedy, the tribunal applied a 75% reduction for contributory conduct under the Employment Rights Act 1996. It found that the claimants, as managers, were blameworthy in failing to stop the incident and that their conduct substantially contributed to their dismissals. After reduction, Mr Ward received £2,730.50 basic award and £918.39 compensatory award, totalling £3,648.89. Mr Sullivan received £1,135.81 basic award and £432.00 compensatory award, totalling £1,567.81. The tribunal recorded that the Recoupment Regulations did not apply.