Mr David Creek v Ressance Limited — 2021

Mr Creek was the Respondent's Director of Construction on a salary of £100,000. The tribunal found that concerns arose in late 2019 and early 2020 about significant overspends and programme slippage on projects RL52 and RL3-20, that Mr Henderson and Mr Crook attempted to get clarity from him, and that Mr Creek was then suspended on 20 March 2020 and subjected to a disciplinary process. During that process further allegations were added, including concerns about staff treatment, health and safety, and two personal loans obtained by Mr Creek, one from a direct report and one connected with a subcontractor. Mr Creek resigned on 3 May 2020, the day before the final disciplinary hearing, saying he did so because of repudiatory breaches of the implied term of trust and confidence.

The tribunal rejected the contention that the disciplinary and grievance handling amounted to a fundamental breach. It held that an investigatory interview with Mr Creek was not obligatory under paragraph 5 of the ACAS Code of Practice, and that the absence of such a meeting did not amount to a breach of contract, particularly where Mr Henderson had already met Mr Creek several times about the overspends. It also found that the grievance and disciplinary matters were effectively the same issues, so the eventual grievance hearing did not itself demonstrate breach. The tribunal said that the decision not to appoint an independent HR consultant set the standard too high for a small company dealing with its own technical processes, and that the complaints about non-disclosure of emails were not made out because Mr Crook had taken reasonable steps to resolve access problems before the resignation.

On the substance, the tribunal accepted Mr Crook's evidence that Mr Creek had routinely acted as though he had greater authority than he actually had, had made adjustments without proper reporting, and had allowed the budgets on the projects to overrun without properly warning the Board of the scale of the problem. It found no substantive defence to the allegations of failing to follow company systems and failing to control the overspend, and concluded that had the disciplinary process run its course the dismissal would probably have been procedurally and substantively fair. Applying the constructive dismissal principles from Western Excavating and the implied term of trust and confidence from Malik v BCCI, the tribunal held that the matters relied on by Mr Creek did not amount to a repudiatory breach. The complaint of constructive dismissal was therefore dismissed, and the breach of contract claim fell away with it.