Case 2301465/2019 · Employment Tribunal
Mr Paul Swan v Berendsen Hospitality Limited, t/a Elis — 2020
- Case reference
- 2301465/2019
- Decision date
- 13 January 2020
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Jones QC
- Venue
- Croydon
Parties
2 namedClaimant
Mr Paul Swan
Respondent
Key findings
Tribunal's reasoningMr Swan had worked for the respondent since 2004 and had long objected to reporting to Mr Gary Bowen. The tribunal found that his concerns about Mr Bowen were linked to earlier disputes, including whistleblowing-related matters and a period of sickness absence, and that in 2015 the respondent had taken steps to avoid requiring him to report to Mr Bowen. In 2017, following a grievance about reporting lines, the respondent expressly decided that the previous agreement should be honoured.
By 2018 and early 2019 the respondent sought to reverse that position. The tribunal accepted Mr Swan's evidence that he did not genuinely agree to report to Mr Bowen, despite entries in the grievance appeal process suggesting that he "understands" or was "ok" with the arrangement. It found that the respondent knew of the earlier agreement and of the claimant's continuing objection, but nevertheless required him to report to Mr Bowen when the management structure changed. The tribunal rejected the respondent's case that the claimant had been content with the arrangement or that there was a reasonable basis to believe that he was.
Applying the implied term of trust and confidence, the tribunal held that there was no reasonable and proper cause for the respondent's decision and that compelling Mr Swan to report to Mr Bowen was conduct likely to seriously damage the employment relationship. It therefore found a repudiatory breach, accepted that Mr Swan resigned in response to that breach on 10 April 2019, and held that there had been no affirmation of the contract. It then found the dismissal unfair under ERA 1996 s.98(4), concluding that although the respondent's explanation was capable of amounting to a fair reason under s.98(1)(b), it was not reasonable in the circumstances of this case.
The tribunal did not hear remedy evidence at the liability hearing. It recorded that compensation had not been considered and that, if the parties could not agree quantum, the case should be listed for a one-day remedy hearing.
Claims and outcomes
2 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | The tribunal found that requiring the claimant to report to Mr Bowen, after earlier assurances and a 2017 grievance outcome that the agreement would be honoured, was a repudiatory breach of the implied term of trust and confidence. It accepted that the claimant resigned in response to that breach. | Upheld | — | — |
| Unfair dismissal | The tribunal held that the claimant was unfairly constructively dismissed. It accepted that the respondent had relied on a business reason for the reporting-line change, but found that dismissal was not fair under ERA 1996 s.98(4). | Upheld | — | — |
Legal tests applied
5 references- implied term of trust and confidence
- reasonable and proper cause
- Morrow v Safeway Stores PLC [2002] IRLR 9 (EAT)
- ERA 1996 s.98(1)(b)
- ERA 1996 s.98(4)
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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