Mr O’Callaghan, Counsel For the v Respondent — 2020

The claimant was employed as a Driver/Operative from 15 February 2014 and resigned on 28 February 2018. He said he had been bullied and harassed after a back injury on 20 September 2017, and he relied on the rejection of his final written warning appeal as the final straw. The tribunal considered constructive dismissal by reference to section 95(1)(c) ERA 1996, Western Excavating Ltd v Sharp, Malik v Bank of Credit and Commerce International SA, and London Borough of Waltham Forest v Omilaju.

On the facts found, the tribunal accepted that the respondent was entitled to ask for an accident account on the day of the incident, that the complaint about Darren Higgins was dealt with informally and was not taken further because no grievance was raised, and that the respondent was justified in investigating the claimant’s use of stillsons because its manual handling policy prohibited them. The tribunal also found that company sick pay was discretionary under the contract and that the respondent had reasonable and proper cause to refuse it after concluding, following investigation, that the accident resulted from the claimant’s own failure to follow procedures.

The tribunal found that the disciplinary process was justified in relation to the claimant’s refusal to sign the manual handling training record and his failure to attend work when requested during suspension. It accepted that the final written warning appeal was dealt with on the papers and that this breached the respondent’s own disciplinary policy and the ACAS code, but held that this procedural flaw was not enough, either alone or cumulatively with the earlier matters, to amount to a repudiatory breach of contract. The grievances raised on 29 January 2018 had not been rejected before resignation, because the claimant had not provided the further information requested by HR.

The tribunal therefore held that the matters complained of were either not made out or were not unreasonable, and that they did not individually or collectively destroy trust and confidence. It found that the effective cause of the resignation was the claimant’s perception that the respondent wanted to remove him, rather than any repudiatory breach by the respondent. The unlawful deduction claim also failed because the claimant did not prove entitlement to company sick pay or to the two call-out payments claimed.