Mr D Bowden v Opsec Security Limited — 2023

Mr Bowden was employed as Operations Director EMEA and was also a statutory director of Opsec. The tribunal found that, from March 2020 onwards, his role was progressively reduced without consultation: an interim General Manager was appointed, he was subordinated to Mr Keller, responsibilities such as Grove Park, customer services, ELT participation, contract sign-off, expenditure authority, and other management functions were removed or curtailed, and he was later described as Operations Leader or Head of Group Operations. The tribunal accepted that by April 2021 he no longer reported to the CEO, was no longer on the ELT, and had been left with a significantly diminished role focused on factory operations.

The tribunal applied the implied term of trust and confidence, the constructive dismissal principles in Western Excavating, Malik, Lewis and Omilaju, and the causation approach in Meikle and Kaur. It held that the changes amounted to a significant diminution of Mr Bowden’s role implemented over time without his consent, and that Opsec’s express variation clause was not a licence to impose major changes carte blanche. The tribunal accepted that Opsec was globalising and responding to Covid, but found that transparency and consultation were required and that the piecemeal removal of duties was not reasonably and properly caused. Some of Mr Bowden’s allegations were not proved, including the alleged 24 September 2020 remarks and the alleged Covid comment, but the overall cumulative course of conduct still amounted to a repudiatory breach.

On resignation, the tribunal found that the effective reason Mr Bowden left was the unilateral and non-consensual erosion of his role, not simply the fact that he had another job to go to at Ulster Carpets. It held that his resignation on 22 and 23 April 2021 was in response to the breach and that he had not affirmed the contract in a way that defeated the claim. The tribunal therefore upheld the claim of constructive unfair dismissal and directed that remedy be determined at a separate hearing.