- IN PERSON FOR THE v Ms A. Niaz-Dickinson — 2020

The claimant, a Principal Engineer and Quality Officer, resigned on 3 May 2019 after a period of performance management under the respondent's Managing Unsatisfactory Performance Policy. He brought claims for constructive unfair dismissal, automatic constructive unfair dismissal under s103A ERA 1996, whistleblowing detriment, direct age discrimination, and breach of contract. The tribunal heard from the claimant and four management witnesses, and found the respondent's evidence to be materially supported by contemporaneous documents.

On the whistleblowing case, the tribunal held that the April 2016 MMP actuator non-conformance email was about missing or unavailable test records, not information tending to show that anyone's health or safety was endangered. It also found no evidence that the alleged February 2017 disclosure to Mr Patel or the alleged February 2018 oral disclosure to Mr Lambourne had taken place. The detriment claim and the automatic unfair dismissal claim under s103A therefore failed. The tribunal also held that, even if any disclosure had been protected, it would not have found a causal link between any disclosure and the performance-management steps.

The age discrimination claim was dismissed because the claimant produced no primary facts from which an inference of age discrimination could properly be drawn. He relied on hypothetical younger comparators, but the tribunal found no evidence that the performance monitoring, warnings, or hearing were linked to age. It noted that the claimant had not put age-related allegations to the respondent's witnesses and that the performance concerns were genuinely held.

On constructive dismissal, the tribunal accepted Mr Lambourne's evidence that the claimant's performance concerns were real and were supported by documentary evidence and by other managers' assessments. It held that the respondent had reasonable and proper cause to begin and continue performance management, so there was no breach of the implied term of mutual trust and confidence. The tribunal also rejected the alleged express breaches of the performance policy, finding that the policy was not contractual and, in any event, that the steps complained of did not amount to contractual breaches. Applying the last-straw principles in Omilaju v Waltham Forest LBC, it held the alleged final incident was not a viable basis for resignation. The breach of contract claim about notice pay also failed because the claimant had been paid in accordance with the contract. All claims were dismissed and no remedy was awarded.