In person, assisted by his father Mr B Newton For the v Respondent — 2020

At a preliminary hearing on 28 February 2020, Employment Judge N J Roper considered whether the claimant's claims should be struck out for having no reasonable prospect of success, or whether a deposit order should be made. The tribunal ultimately struck out the constructive dismissal and breach of contract claims under Rule 37(1)(a). It also recorded that any unlawful deduction from wages and accrued holiday pay claims, to the extent they had been recorded, were withdrawn by the claimant.

The tribunal found that Mr M W Newton had been employed as a Security Guard and, at the material time, was subject to an active final written warning dated 4 August 2018. That warning concerned seven misconduct matters, and the tribunal noted that it made clear that any further misconduct was likely to result in dismissal. In April 2019 Tesco also began redundancy consultation because it was reducing some of its security facility, while separately commencing disciplinary proceedings about allegations of extra breaks, eating behind the customer service desk, asking untrained colleagues to look after the desk, and using a phone behind the desk.

The tribunal accepted that the disciplinary hearing on 26 April 2019 had coincided with a redundancy consultation meeting, but it found that the claimant knew he was attending a disciplinary hearing, understood the allegations, knew dismissal was a possible outcome, and declined representation. He signed the minutes as accurate, asked for breaks which were granted, and then said he would like to hand in his resignation so that he would be employable in the future. He later confirmed the resignation in writing and declined the opportunity to retract it.

Applying section 95(1)(c) and section 98(4) ERA 1996 and the authorities on constructive dismissal and trust and confidence, including Western Excavating, Tullett Prebon, Omilaju and Kaur, the tribunal held that the respondent had followed a fair and reasonable disciplinary process and had not committed a fundamental breach of contract. It found that the resignation was voluntary and not a dismissal, so the constructive dismissal claim could not succeed and the breach of contract claim also failed.