Mr Mark Kersley v Airvending Limited — 2022

Mr Mark Kersley was employed by Airvending Limited from 11 April 2014 as a service engineer/logistics/cash operator. The dispute arose over the meaning of his contract, especially whether he had to work weekends within a 45-hour week or whether weekend work should be paid as overtime or offset by time off in lieu. After John McCreedy became his line manager in April 2018, the respondent raised concerns about his performance, and on 23 May 2019 the parties discussed a revised contract under which normal hours were 49.5 per week Monday to Friday, weekend working was treated as overtime, and the claimant's salary increased from £20,500 to £22,500.

The tribunal found that the respondent was entitled to raise performance concerns and that the meetings and monitoring complained of did not amount to a breach of contract. It held that the 27 April 2019 email did not show unlawful withholding of pay: Mr McCreedy told the claimant not to incur further overtime until the contractual issue was resolved, but the payslips showed that overtime was paid when due. The 11 September 2019 performance review was found to have been conducted reasonably, the notes were not intended to be a verbatim record, and the claimant was not prejudiced by them. The tribunal also held that there was no contractual or statutory right to be accompanied at the May and September 2019 meetings, and that the draft disciplinary letter prepared in December 2019 was never sent.

Applying section 95(1) of the Employment Rights Act 1996 and the constructive dismissal authorities in Western Excavating (ECC) v Sharp and Waltham Forest v Omilaju, the tribunal concluded that the respondent had not committed a repudiatory breach of contract and had not acted in a way calculated or likely to destroy trust and confidence. It accepted that the claimant genuinely disagreed with the respondent about his contractual obligations and believed he was being treated unfairly, but held that those differing views did not amount to a breach. As at the date of his resignation on 1 January 2020, the respondent had not breached contract, so the claimant's resignation was not a constructive dismissal. The unfair dismissal complaint was dismissed, and no remedy was awarded.