R Massingham Respondent Chrystal Consulting Limited v Respondent — 2022

The claimant had been employed by the respondent since 2000 and had been a director. The tribunal rejected a number of historic allegations relied on for constructive dismissal, including the alleged failure to transfer a 25.5% shareholding, the criticism of his performance, the alleged failure to read out his responses at board meetings, the restructure in 2018, the draft suspension letter, the bonus dispute, the stress-related enquiries, and the grievance process itself. It found no evidence that the claimant made the first two alleged protected disclosures in 2017/2018 or January 2019. The only protected disclosure accepted was the grievance sent by solicitors on 31 May 2019, insofar as it raised concerns about Mr Newsome’s role and the undertakings arising from the 2011 court order.

On the constructive dismissal issue, the majority and minority split on the disciplinary process arising out of the January 2019 MAST incident and on the grievance outcome of 12 July 2019. The majority held that starting disciplinary action against the claimant, and keeping it alive while the grievance was being dealt with, was a fundamental breach of trust and confidence because it was pursued after it became clear that he would not resign. The majority also held that the grievance outcome lacked objectivity because Ms Merrygold, who was involved in the matters under complaint, included her own observations and opinions in the rejection letter. Employment Judge Batten dissented, holding that the disciplinary process had reasonable and proper cause and that the claimant had already decided to leave after accepting alternative employment with Genmed.

The tribunal unanimously dismissed the whistleblowing detriment complaint. It held that alleged detriments said to have occurred before 31 May 2019 could not have been caused by the protected disclosure accepted in the grievance. As to the remaining complaints, the tribunal found that Kingfisher HR did investigate the grievance and that the claimant’s disagreement with the outcome did not itself establish detriment. It found no material link between the protected disclosure and either the grievance outcome or the grievance appeal outcome of 4 September 2019. The detriment claim was therefore dismissed.

For automatic unfair dismissal under s103A ERA 1996, the majority concluded that the claimant’s protected disclosure in the 31 May 2019 grievance was the sole or principal reason for the relevant breach of contract found by the majority, and that the claimant resigned in response to that breach and the grievance appeal outcome. The majority treated the grievance outcome and appeal outcome as part of the series of events that made continued employment intolerable. The minority held that the claimant had affirmed any breaches, that he had already decided to leave in order to take the Genmed job, and that his resignation was not caused by the respondent’s conduct. Liability was found, but remedy was left to a separate hearing.