Mr Hussain, Union Representative For the v Mr I Lovejoy, Legal Executive — 2020

Mr Rasel Ali worked as a Support Worker in a children's and young persons' home in Bedford. On 23 September 2017 he was involved in an incident with a colleague and two young women in care, who were accepted to be vulnerable. During that incident the young women racially abused him, and he admitted calling one of them a "slut". The first disciplinary investigation recommended action, and Mr Farrimond imposed a final written warning after the hearing on 6 October 2017. The tribunal accepted that the sanction was harsh, but not so disproportionate as to amount to a repudiatory breach of contract.

On appeal, Mr Parker treated the omission of the abusive language from the incident reports as a separate issue and decided that there should be a second investigation. The tribunal found that the incident reports had probably been before the original disciplinary hearing, but that Mr Farrimond had only dealt with the verbal abuse allegation and had not addressed the omission. It rejected the claimant's case that the second investigation was pursued because he had appealed, and held instead that the omission was a separate matter which could properly be investigated in a regulated children's home setting.

The invitation to the second disciplinary hearing on 13 December 2017 was received by the claimant on 15 December 2017 and said that previous disciplinary action would be taken into account. The tribunal held that the late receipt, the reference to previous discipline, and the failure to set out the range of possible sanctions in the letter were not, taken objectively, repudiatory breaches of contract. It found a breach of paragraph 9 of the ACAS Code of Practice in not identifying possible sanctions, but held that this was not enough to destroy trust and confidence. Mr Ali resigned on 15 December 2017, before the second hearing, but the tribunal held that he had not established constructive dismissal and, in any event, had affirmed the contract by delay and by participating in the second investigation. The claims for constructive unfair dismissal and breach of contract as to notice were therefore dismissed. The judge recorded provisional remedy findings only: if liability had been made out, he would have found 60% contributory fault, no ACAS uplift, and no award for loss of statutory rights, but no monetary remedy was made because the claims failed.