Joszef Katona v Westfield Europe Ltd — 2023

Joszef Katona worked for Westfield Europe Ltd from 13 May 2011 until he resigned on 20 September 2021. He brought an unfair dismissal claim on the basis that he had been constructively dismissed, relying on a series of matters said to amount, alone or cumulatively, to breaches of contract and trust and confidence. The tribunal identified the relevant issues as the holiday and TOIL dispute in September 2019, furlough decisions from November 2020 and January 2021, the handling of his workstation and home-working arrangements, bonus pay, the decision to place him on a performance improvement plan, the alleged "pay cheque" comment, sick pay, and the grievance process.

The tribunal rejected the allegation that any of those matters, taken individually, amounted to a fundamental breach. It found that the September 2019 holiday and TOIL events did not show an improper reprimand or a false and misleading record being knowingly placed on file. It found the November and December 2020 furlough decision was a legitimate business decision taken on reasonable grounds, and that the delay in the workstation assessment and equipment was not unreasonable in the pandemic context. It also found no fundamental breach in the January and February 2021 furlough and workload discussions, the bonus decision, the use of the PIP process, or the decision not to extend company sick pay.

On the specific disputed comment at the 28 May 2021 meeting, the tribunal preferred the respondent's evidence and found that Ms Ladous did not say that the claimant would not get a "pay cheque". It accepted that the claimant genuinely believed he had been mistreated, but found that this did not make the comment proved or the respondent's conduct repudiatory. The tribunal also found that the grievance investigation by Dawn Thwaites and the appeal by Amanda Beattie were both conducted conscientiously, fairly, and in good faith, notwithstanding some matters that could have been handled differently.

Applying the constructive dismissal authorities, including Western Excavating, Malik, Kaur and Omilaju, the tribunal held that the high threshold for a repudiatory breach was not met and that this was not a last straw case. It concluded that, even viewed cumulatively from September 2019 to September 2021, the respondent's conduct did not amount to a fundamental breach of contract. The claim was therefore dismissed and no award was made.