Mr S McCombe v Bollin Group Limited — 2021

The claimant, a Group Accountant employed from August 2015, said that a series of events between May and September 2019 amounted to a repudiatory breach of the implied term of trust and confidence and that he resigned in response. The tribunal accepted that the respondent was carrying out a genuine review of its finance function, prompted by concerns about senior support, the retirement of the previous Group Financial Controller, and comments from auditors and bankers. It found that the 31 May 2019 meeting, at which the claimant was told a review was under way and that his suitability for the senior role was in question, was an open discussion of those concerns rather than a sham or a threat to remove him.

The tribunal rejected the claimant's specific complaints about the conduct of the respondent in June and August 2019. It found that the CEO did not make the alleged remark about getting rid of a marketing director at the 31 May meeting. It also found no intentional exclusion from the insurance brokers meeting, no sinister motive in querying the claimant's expense claim or attendance times, and no bad faith in the competency framework review or the subsequent appraisal discussion. The tribunal accepted that the respondent was genuinely concerned about the claimant's communication, management and leadership abilities, and that those concerns had been raised with him before May 2019.

The tribunal also considered the so-called protected conversations on 5 August and 2 September 2019, and the finance restructure proposals circulated on 7 and 15 August 2019. It found that these were attempts to discuss the claimant's future in the context of a restructure and his possible exit, in circumstances where the claimant was thought to be looking for other work. On 2 September 2019 he was told that a Group Financial Controller would be recruited, that he could apply for that role, and that his own Group Accountant role was being retained as a holding position pending the new structure and further review.

Applying the authorities on constructive dismissal and the implied term of trust and confidence, including Western Excavating, Malik, Woods, Omilaju and Kaur, the tribunal held that neither the 2 September 2019 discussion nor the earlier incidents, taken singly or cumulatively, amounted to a repudiatory breach. It therefore found that the claimant had not been dismissed and that the constructive unfair dismissal claim failed. Because no dismissal was established, the tribunal did not need to decide fairness under section 98 ERA 1996 or any compensation questions.