John Konteng v Interserve (Facilities Management) Ltd Heard by CVP — 2020

John Konteng was employed by Interserve (Facilities Management) Ltd from 1 April 2016 until he resigned on 28 May 2019 from his role as Instore Manager at the Tunbridge Wells Sainsbury's store. He complained that he had been subjected to repeated searches, that Hazel Murray targeted him, and that the disciplinary process which followed events on 7 January 2019 and 20 January 2019 amounted to a breach of trust and confidence.

The tribunal found that the respondent had not acted as alleged on 7 January 2019. It accepted that Ms Murray attended the store unannounced in the ordinary course of her area management duties and that she was entitled to do so. It found that the claimant had not proved that he told Ms Murray about a complaint concerning searches, that her complaint about his conduct led to the disciplinary process, or that the email she sent was created during the disciplinary proceedings rather than before them. The tribunal also accepted that the disciplinary hearing was conducted fairly, with the claimant given the documents in advance and the opportunity to respond.

On the merits of the disciplinary outcome, Mr Carey did not uphold the allegation that the claimant had been verbally abusive on 7 January 2019 and did not proceed with the allegation about that date because the evidence was incomplete. He did find the 20 January 2019 allegation proved, namely that the claimant had worked only about 35 to 45 minutes but claimed for 12 hours, and he issued a first written warning, which the tribunal found was the lowest available sanction and proportionate given the claimant's admitted failure to sign out properly. Mr Pascoe dismissed the appeal after reviewing the process and making attempts to obtain information from Sainsbury's about the searches.

The tribunal held that the implied term of mutual trust and confidence had not been breached and that the claimant had resigned rather than being constructively dismissed. It also rejected the race discrimination claim, finding that the searches were carried out by Sainsbury's management, not the respondent, and that the respondent was not shown to have treated the claimant less favourably because he was black. The claims were therefore dismissed in full, and no monetary remedy was awarded.