Claimant v CH & CO Catering Group Limited — 2020

The claimant worked for the respondent from 6 May 2014 and became café manager at Pirbright in December 2015. In autumn 2018 the respondent investigated overtime claims after comparing the claimant's claimed hours with security swipe data. She was suspended on 24 October 2018, investigated for alleged falsification of records and inappropriate conduct, and dismissed for gross misconduct on 26 November 2018. Her appeal succeeded on 14 December 2018, the dismissal was revoked, and she was reinstated with back pay.

The claimant later resigned on 9 January 2019 and said the respondent's conduct had amounted to a fundamental breach. The tribunal approached the case as a constructive dismissal claim and applied the questions identified in Kaur v Leeds Teaching Hospitals NHS Trust, together with the contractual test in Western Excavating (ECC) Ltd v Sharp. It identified the most recent alleged triggering act as Mr Novelle's email of 17 December 2018, but found that email did not require the claimant to work under Mr Parkin and was part of the respondent's efforts to support her return to work, including discussion of alternative vacancies.

The tribunal held that the suspension, the decision to bring disciplinary proceedings, and the way the investigation and hearing were conducted were all supported by reasonable and proper cause because the respondent had evidence suggesting falsification of records and the claimant's honesty was in question. It also held that the dismissal decision itself could not amount to a breach of the implied term of trust and confidence, relying on Johnson v Unisys Ltd. Although some criticisms of the process were accepted on appeal, the tribunal concluded that, viewed cumulatively, the earlier acts still did not amount to a repudiatory breach.

The tribunal further held that, even if there had been an earlier breach, the claimant had affirmed the contract by appealing her dismissal with the aim of getting her job back, and was then reinstated and paid back pay. It therefore found that the claimant resigned rather than being constructively dismissed, so the complaints of unfair dismissal and wrongful dismissal were dismissed.