Anne Kellet (lay representative) For the v Jody Sallons-Day — 2021

The tribunal found that Mr Day purported to dismiss the claimant on 29 May 2019 for gross misconduct, but that Mr Tanner wrote the next day saying the correct procedures had not been followed and that employment was not terminated. The claimant accepted that reinstatement, continued working, and the tribunal held that the 29 May dismissal was not effective, so his employment continued until he resigned on 23 July 2019. On that basis, the tribunal did not need to decide whether the 29 May dismissal itself was fair.

The tribunal then considered the resignation of 23 July 2019 as a constructive dismissal claim under section 95(1)(c) of the Employment Rights Act 1996. It held that the respondent's conduct from 29 May to 23 July 2019 amounted to a fundamental breach of the implied duty of trust and confidence. The tribunal relied in particular on the removal of the claimant from payroll, the failure to reinstate access to company IT systems, the instruction to remove him from the health insurance policy with effect from 22 May 2019, and the removal of computer equipment from his desk on the weekend of 20 to 21 July 2019.

The tribunal rejected the claimant's reliance on the events of 15 April 2019 as a separate breach. It accepted that Jody Sallons-Day shouted at the claimant on that date, but found that the claimant also shouted back, that there was no deliberate blocking of his exit, and that the incident did not itself amount to a breach of contract. It also found that, after the grievance response, the claimant affirmed the contract by continuing to work, so those events did not found the constructive dismissal claim.

Having found that the claimant was dismissed when he resigned on 23 July 2019, the tribunal held that the dismissal was unfair because the respondent did not advance any potentially fair reason for that dismissal. It also upheld the wrongful dismissal claim by treating the dismissal as giving rise to notice pay, and upheld the holiday pay claim on the basis that four days' holiday pay remained due. The judgment listed the claim for a separate remedy hearing and did not fix the amount of compensation in this decision.