M Kearns (sitting alone) Mr Alan Mackenzie v Accompanied by:15 Mrs Mackenzie Wife D & S Metals — 2018

Mr Alan Mackenzie worked for D & S Metals as a long-distance lorry driver from April 2010 until he resigned on 23 August 2017. The tribunal treated the central question as whether his resignation amounted to a dismissal under section 95(1)(c) of the Employment Rights Act 1996, applying the common law test for repudiatory breach and the implied term of mutual trust and confidence described in Malik v BCCI SA. The claimant said that the respondent’s conduct, taken cumulatively, had destroyed trust and confidence.

The tribunal found that the altercation at the Rosefield Salvage yard on 29 June 2017 involved fault on both sides. It accepted that there was a dispute between the claimant and Ivor Williamson, but concluded that the claimant had helped provoke it by his approach and by challenging Mr Williamson about the telephone exchange, and that the incident was not itself a breach of the implied term. The later exchange with Lewis Williamson on 11 July 2017 was found to be limited and was sorted out by David Gallagher.

The tribunal also held that the final written warning issued on 27 July 2017 was not a breach of contract. Although the claimant said the disciplinary procedure should have started at an earlier stage, the written terms allowed the procedure to be implemented at any stage if misconduct warranted it, and the tribunal found that the complaint from Ivor Williamson and Mark Williamson’s investigation provided reasonable and proper cause for the warning. The route change and removal from the Rosefield work were found to be a contractual and reasonable response to the client’s position, and the reference in the letter to acting "for your own protection" was not an implied threat when read in context.

The tribunal further found that the defect-report incident did not show a change of attitude by Mark Williamson, and that the approximately three-week period taken to arrange an appeal hearing was not unreasonable. Looking at the matters cumulatively, the tribunal concluded that there was no conduct calculated or likely to destroy or seriously damage trust and confidence, no repudiatory breach by the respondent, and therefore no constructive dismissal. As there was no dismissal, the unfair dismissal complaint also failed, and the claim was dismissed.