Atack Mr R Taylor v G & A Barnie Group Limited — 2017

The claimant worked for the respondent from 11 February 2013 and on a Shetland site from May 2016. In July 2016 he became involved in two disputes about apprentices and site management. The tribunal found that the apprentice issue was a matter for management, that the claimant knew he should have sought permission before asking another apprentice to help him, and that Mr Barnie met the claimant on 9 and 10 July 2016 to resolve matters. After that, there were no further problems with the site managers.

In late September 2016 the claimant was assaulted in accommodation provided by the respondent and was taken to hospital. He was later flown from Shetland to Aberdeen and driven to Inverness. He produced fit notes covering late September 2016 into January 2017. On 27 October 2016 the respondent wrote seeking consent to obtain a GP report, explaining that it was to assess fitness for work, likely return to work, reasonable adjustments and the possibility of a phased return. The claimant regarded the letter as aggressive, lost trust and confidence, and resigned by email on 31 October 2016.

The tribunal applied the constructive dismissal approach under section 95(1)(c) of the Employment Rights Act 1996, referring to Western Excavating and the implied term of trust and confidence in Malik, as well as the final-straw principle from Omilaju. It held that none of the matters relied on, singly or cumulatively, amounted to a repudiatory breach of contract. The July incidents were not breaches by the respondent; there was no legal obligation on the respondent to contact the claimant earlier after the assault; the decision to fly him to Aberdeen was explained by travel and safety considerations; and the 27 October letter was a standard ill-health enquiry and not a material breach. The judge also held that, even if earlier matters had been breaches, the claimant had affirmed the contract by continuing to work after July 2016 and could not treat the October letter, which was found to be innocuous, as a final straw. The claim was therefore dismissed.