MR W VAUGHAN v Talbot Underwriting Services Limited — 2020

The claimant was employed as an Accounts Assistant and, for the first four years, his performance was generally assessed positively. After a period of additional workload and changing team arrangements, the tribunal accepted that he was doing unfamiliar work without always being given complete instructions. It also accepted that on 7 February 2019 B spoke to him in a bullying manner in front of colleagues, that his grievance about that incident was upheld, and that B was later disciplined for harassment, intimidation and bullying. His reporting line was changed to Ms Matute.

The tribunal found that, after the grievance and return from sickness absence, there was a change in attitude from Messrs Wachman and Callaghan which the claimant experienced as coldness. It accepted that they would have been aware in general terms of B's conduct and that no wellbeing support was offered to the claimant after the grievance, although the absence of a wellbeing check was not treated on its own as a separate breach. The tribunal concluded that this change of attitude, taken with the lack of support, contributed to the claimant's view that the respondent was unhappy with him and no longer wanted him to work there.

The tribunal rejected the claimant's case that the use of the TOM spreadsheet and the increased spreadsheet referrals were, by themselves, breaches of trust and confidence. It accepted that there were genuine performance concerns and that an informal process was initially pursued to help him remain in post. However, it found that the later decision to move to a formal capability process was, in the particular circumstances of this case, without reasonable cause and likely to destroy or seriously damage trust and confidence. That conclusion was driven by the claimant's clear evidence that he was demoralised, had been bullied, had said he would rather resign than go through a formal process, and had been persuaded not to resign on the basis that he would receive help and no formal process would follow.

The tribunal held that the claimant resigned in response to the decision to impose a formal process, coupled with his view that he was being pushed out, and that this amounted to constructive unfair dismissal. On Polkey, it found that a fair process would have given him more time to complete outstanding work, with further on-the-job assistance and training, but that it was more likely than not that either a fair formal process would have started within about two months, after which he would have resigned, or he would have resigned in any event on notice. It found no contributory fault on the claimant's part. Remedy was left to be settled or dealt with at a later hearing if necessary.