Mr S McNicholas v Sky Retail Stores Limited — 2022

The claimant brought a constructive unfair dismissal case and an unlawful disability discrimination complaint. The discrimination complaint was withdrawn at the start of the hearing. On the dismissal claim, the tribunal preferred the evidence of the respondent’s witnesses and contemporaneous documents over the claimant and Terence McKay, whom it found unreliable on key disputed events.

The tribunal rejected the claimant’s allegations that Samirah Ashraf repeatedly called him “trouble,” shouted and banged her hands on a table in the Asda cafe, or accused him of failing to follow an instruction to work in Wigan. It accepted that she shared his mobile number in a WhatsApp group without consent and that the occupational health referral in June 2019 contained comments about his mental health and the public that were criticised as insensitive and not in line with company expectations. The grievance outcome partly upheld the WhatsApp number issue and the referral content, and the appeal upheld the delay in dealing with the grievance while otherwise rejecting the appeal.

The constructive dismissal claim still failed because the tribunal found the claimant remained in employment long after the June 2019 events, later re-engaged with the WhatsApp group during the pandemic, and did not resign until 2 October 2020. It held that the alleged final straw involving Michael Whan did not occur as the claimant said, or was in any event innocuous, and that the claimant had affirmed the contract by continuing to work and by the length of time before resignation. The tribunal said the resignation was instead prompted by other matters, including a first written warning and concern that performance management would resume. No monetary award was made.