Member Brown Tribunal Member Henderson Mr L Wilson v Tesco Stores Ltd — 2023

The claimant was employed as an HGV driver and had retained pay following an earlier relocation. In February 2021, while absent through illness, he emailed acceptance of a buy-out of retained pay after being told the acceptance deadline was that day. The tribunal found that this agreement was clear and unambiguous and that the respondent was entitled to rely on it, so later non-payment of retained pay after August 2022 was not an unauthorised deduction from wages.

The tribunal found that one of the claimant's asserted disclosures, his letter of 20 April 2021 about retained pay and a Court of Session interdict, was a protected disclosure. The other asserted disclosures were not qualifying disclosures, principally because they related to the claimant's personal circumstances or did not disclose information. The protected disclosure did not materially influence the respondent's later actions, and it was not the sole or principal reason for dismissal, so the protected disclosure detriment and automatic unfair dismissal complaints were dismissed.

For constructive dismissal, the tribunal found that the respondent's failure to progress the claimant's grievances, including the grievance of 15 September 2022, together with earlier failures to address grievances and the failure to respond to his request to change hours or work, cumulatively breached the implied term of trust and confidence. The claimant resigned in response to that breach and had not affirmed the contract. The tribunal therefore found that he was constructively and unfairly dismissed.