Mr C Pickering v B Taylor and Sons Limited — 2021

Mr C Pickering, a long-serving class 2 HGV rigid driver aged 64, returned from furlough on 20 May 2020 onto the Clayton Glass contract. He said the work required him to hand offload glass, often without assistance, and that this caused back pain. The tribunal preferred his evidence to the respondent's inconsistent account and found that he had repeatedly asked Mr Alan Taylor, Mr Glenn Woodward and Mr Andy Gibb to move him off the contract, but was not removed.

The tribunal held that the respondent's refusal to take him off the contract and its failure to engage with alternative duties breached the implied term of trust and confidence. Applying the constructive dismissal principles in Western Excavating and the implied-term authorities in Malik and Morrow, it found that Mr Taylor's response on 23 July 2020, followed by the resignation effective 24 July 2020, meant Mr Pickering resigned in response to the breach and had not affirmed the contract. The respondent's argument that the dismissal was fair for some other substantial reason was rejected under s.98(4) ERA 1996 and the band of reasonable responses test.

The constructive dismissal claim succeeded. The tribunal awarded a basic award of £4,035 and a compensatory award of £7,204.49, made up of £500 for loss of statutory rights and £6,704.49 for 13 weeks' loss of earnings at a net weekly rate of £515.73. It accepted his evidence that he took about three months to find new work and had sought to mitigate his loss during the Covid-19 period.

Separately, by consent, the respondent agreed to pay £63.50 for an overnight allowance and five hours' pay on 24 July 2020, and £331.29 for three days' holiday pay outstanding on termination. The remaining holiday-pay claim, which sought the difference between holiday pay calculated on basic pay and on average hours, was held out of time; the tribunal said it had no jurisdiction to hear it and did not extend time under s.23 ERA 1996.