Mr K Williams v Breasley (UK) Limited — 2021

The tribunal heard the case on 1 October 2021, with Employment Judge Smith sitting alone. The claimant pursued a notice pay claim, described in the judgment as wrongful dismissal, and the respondent withdrew its own contract claim at the start of the hearing. The main question was whether the claimant had been constructively dismissed on 17 May 2021 when Mr Khan told him that complaints had been made about aggressive, racial and sexual comments, that he would be moved to a different office, and that contact with staff would go through a third party. The judge rejected the respondent's evidence that these measures were only a suggestion or temporary, and found that the way the matter was presented amounted to a breach of the implied term of mutual trust and confidence from Malik.

Applying the Western Excavating four-stage approach, the tribunal held that the breach was fundamental, that the claimant resigned in response to it by email on 19 May 2021, and that he had not affirmed or waived the breach. The judge rejected the respondent's reliance on Dryden, Braganza and Wednesbury unreasonableness, holding that this was a case of objectionable behaviour rather than the exercise of a contractual discretion. The tribunal therefore held that the claimant had been constructively dismissed.

On the wrongful dismissal issue, the tribunal found that the claimant was contractually entitled to four weeks' notice, that he was not given notice, and that the respondent had not shown it was entitled to dismiss him without notice on the basis of the admitted racial remark. The judge accepted that the remark was capable of causing offence, but said context was important and noted that the colleague concerned was not called to give evidence. Damages were therefore awarded in the net sum of £2,387.80, and the respondent's argument for a reduction based on alleged failure to mitigate by not raising a grievance was rejected. The respondent's counterclaim was dismissed after withdrawal.