L Doherty Mr N Brett v – Consultant Sky In Home Services Limited — 2017

The claimant, Mr N Brett, worked as a field engineer for Sky In Home Services Limited from 2 February 2009. After a January 2016 investigation into customer service and health and safety issues, he was suspended on 23 January 2016, written to on 26 January and 3 February, and later the respondent’s conduct process was paused while his grievance was investigated. The original wages claim was withdrawn, leaving a claim of constructive unfair dismissal under section 95(1)(c) ERA 1996.

The tribunal found that the respondent took health and safety and customer service seriously, that the claimant had been trained on ladder safety and escalation procedures, and that the post-checks carried out by Mr O’Leary gave rise to legitimate concerns. It accepted that the claimant admitted in the investigatory meetings that he had not followed the expected procedures on the relevant jobs, including failing to use an eyebolt and not providing the expected level of customer service. On the evidence, the tribunal rejected the contention that the disciplinary allegations were a witch-hunt.

The tribunal also rejected the argument that the disciplinary process was conducted over an unreasonable period or that the claimant had been left in the dark. It found that the initial investigation timescale was not unreasonable, that the grievance overlapped with the disciplinary issues, and that it was reasonable for the respondent to put the conduct hearing on hold until the grievance was concluded. It further found, as a matter of fact, that Ms Croke told the claimant the conduct proceedings were paused pending the grievance, and that the claimant confirmed the revised notes of the 4 March meeting as accurate.

Applying the constructive dismissal test from Western Excavating and the implied term of mutual trust and confidence from Malik, the tribunal held that the respondent’s conduct was not such as to destroy or seriously damage the trust and confidence the claimant was reasonably entitled to have in his employer. It therefore found that the claimant had not been constructively dismissed within section 95(1)(c) ERA 1996 and dismissed the claim. The judgment records that it was unnecessary to decide why the claimant resigned, although it notes that he had by then obtained other employment and had been warned that dismissal was a possible outcome of the conduct process.