Mr M Desforges-Grey v Glass World (Cardiff) Limited — 2019

The tribunal found that the claimant, a glazier with over 23 years' service, was not dismissed or resigning before 16 October 2018. After concerns about the tower scaffold, alleged absence on 3 October 2018, and alleged relationship issues with colleagues, the respondent held disciplinary meetings on 9 and 12 October 2018. It decided not to dismiss at that stage, instead issuing a final written warning and requiring the claimant to move from external glazing work to the factory under a contractual clause allowing work in other departments from time to time.

The tribunal rejected the respondent's case that the claimant had resigned on 12 or 15 October 2018. It found that the claimant was left to consider his position over the weekend, then sent in a sickness statement, which was consistent with continuing the employment relationship. The tribunal held that the respondent's letter of 16 October 2018 amounted to a dismissal. On the reason for dismissal, it found that the reason was conduct. Applying British Home Stores v Burchell and s.98(4) ERA 1996, it held that the respondent had a genuine belief in misconduct but did not have reasonable grounds for dismissing without further investigation, particularly because the respondent had already decided not to dismiss for the earlier alleged misconduct and had insufficiently investigated the later absence and sickness issues.

The tribunal also held that the sanction of dismissal was unfair in any event, because a reasonable employer would not have dismissed on the basis of the matters relied on without further investigation. In the alternative, it found that the proposed permanent move to factory work amounted to a termination under Hogg v Dover College because the contract clause referred to working in other departments from time to time, there was no indication that the move was temporary or subject to review, and no indication of what would happen if the claimant refused. The tribunal said that, if the claimant had resigned, the respondent's actions would have amounted to a repudiatory breach of trust and confidence and a constructive unfair dismissal under Western Excavating.

The tribunal upheld the breach of contract claim because, having found a dismissal, the claimant was entitled to notice and could not be summarily dismissed. Remedy was not fixed at this stage. The tribunal said no Polkey reduction should be made, but that both the basic and compensatory awards for unfair dismissal should be reduced by 50% for contributory conduct arising from the 3 October events and the claimant's conduct on 15 October 2018 and in relation to the sickness issue.