Mr D Jones v Cherry & White Ltd — 2021

Mr D Jones resigned with immediate effect on 13 November 2020 after about six years' employment as a technical sales manager. He relied on a series of alleged acts and omissions, including the handling of on-call bonus arrangements, pay reviews in 2018 and 2019, commission payments, flexible working over the COVID period, and the handling of a grievance against Mr Spindler. The tribunal applied the constructive dismissal test from Western Excavating and the implied term of trust and confidence identified in Mahmud v BCCI International, with the burden of proof on the claimant.

On the earlier financial and contractual issues, the tribunal found there was no contractual entitlement to an on-call bonus or to a pay rise, and no persuasive evidence that Mr Jones had been singled out or treated differently from others. It accepted that commission was governed by a deliberately vague arrangement that gave Mr Slim wide discretion, and found no evidence that the discretion was exercised to damage the employment relationship. The tribunal noted that Mr Jones accepted commission payments at the 1.5% rate for two years without complaint and only raised the issue in his resignation letter.

On flexible working, the tribunal found that from March 2020 the respondent had been very accommodating and allowed Mr Jones to vary his hours for around six months, but that he had no entitlement to demand continued flexible working and had not made a formal application under the Flexible Working Regulations. The tribunal accepted Ms Wood's evidence that the company needed him back on normal hours because of his managerial role and the operational needs of the business.

As to the grievance against Mr Spindler, the tribunal accepted that abusive language had been used in the Teams call, but found the matter was largely resolved after a verbal apology, with Mr Jones agreeing to move on and to withdraw the grievance on the basis of an apology and a note being kept on file. The tribunal found that the later refusal on 28 October 2020 to allow him to leave early was reasonable, particularly in light of his contractual duties and the company's need to manage staff attendance. It concluded that Mr Jones did not resign in response to any fundamental breach or cumulative breach by the respondent, but for reasons of his own, so the constructive unfair dismissal claim was dismissed.