ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4101251/2023 Held at Dundee on 15, 16, 17, 20, 22, and November 2023 Employment Judge W A Meiklejohn Mr Andrew N Douglas v Northern Tool and Gear Co Ltd — 2023

The claimant was employed as a CNC Machinist from 15 July 2013 until he resigned on 28 October 2022. Although the ET1 had referred to holiday pay issues, the claimant clarified at the hearing that he was pursuing only a constructive unfair dismissal claim. The tribunal therefore considered whether the respondent had committed a repudiatory breach of contract, including breach of the implied term of trust and confidence, by the matters complained of across the employment relationship.

The tribunal accepted that there had been a series of disputes and tensions, beginning with the disciplinary issue in October/November 2021 after the claimant refused Mr Strachan's instruction and left the factory. It found the claimant's conduct on 27 October 2021 had been disrespectful and insubordinate, that the disciplinary process complied with the ACAS Code, and that the resulting informal verbal warning was lenient. The tribunal also found that other matters relied on by the claimant, including management's work planning, alleged disrespectful comments, colleague queries at his machine, and alleged dishonesty by Mr Strachan, did not amount to breaches of contract.

The tribunal found that some later matters gave the claimant grounds for complaint, including the incident when Mr Graeme Strachan interrupted a meeting with Ms Carr and the handling of the grievance about holiday use during sickness absence. It noted, however, that the respondent apologised for the earlier interruption, that the grievance and appeal were investigated under the ACAS Code, and that the holiday-pay point was not treated as a deliberate attempt to punish the claimant. It also held that the timing of return-to-work meetings and the refusal to pay beyond SSP did not breach the contract.

Applying the authorities it cited, including Western Excavating v Sharp, Malik v BCCI, BCCI v Ali (No 3), Omilaju and Kaur v Leeds Teaching Hospitals NHS Trust, the tribunal held that none of the alleged acts, taken individually or cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence. It found that the most recent act relied on as the trigger for resignation, Mr Strachan's response on 27 October 2022 to the claimant's request for help understanding the grievance appeal outcome, was not itself a breach and that the earlier matters did not cumulatively create one. The constructive unfair dismissal claim was therefore dismissed and no remedy was awarded.