Mr J Douthwaite v DW Marshall Ltd — 2019

Mr Douthwaite was employed by DW Marshall Ltd as a driver from 8 February 2016. The tribunal found that about 90% of his work was driving. After a long period of back-pain absence in 2018, the respondent recruited an additional driver and told him he would be a relief driver/warehouse worker. The tribunal preferred the claimant's evidence about that meeting, found that his role had been changed, and held that this was a fundamental breach of contract. It also found that the respondent's refusal to let him return to work when he had a GP fit note to drive and a consultant letter, while insisting on access to private medical records, was unnecessary and unreasonable; if there were fitness concerns, the respondent could have used occupational health under its policy.

The claimant raised grievances on 25 September, 12 October and 21 October 2018, contacted ACAS on 31 October, and resigned on 22 November 2018 when it became clear that he would not be allowed back on the basis he sought and that he would not be paid wages or sick pay. The tribunal found that he had not affirmed the contract and that he resigned because of the respondent's breaches, so the unfair dismissal complaint was well-founded. The redundancy payment claim was dismissed.

On remedy, the tribunal found that the claimant had taken reasonable steps to mitigate his loss by obtaining some ad hoc agency work and seeking further driving qualifications. It awarded £15,945.7 for unfair dismissal, made up of a £1,080 basic award and a £14,865.7 compensatory award. The compensatory award included immediate loss of £9,267 after £1,393 earnings, future loss of £4,920, £350 for loss of statutory rights and £328.7 pension loss; the prescribed element was £9,267 for the period 23 November 2018 to 10 June 2019. It also awarded £820 for notice pay and £1,640 for outstanding holiday pay, bringing the total awards to £18,405.7.