Members: Miss E Coyle Mr R Taggart Paul McWhir v John Miller — 2021

The claimant had worked a 4-on-4-off shift pattern in the respondent's tanker division. On 7 October 2020 he sought time off because his son's hospital discharge had been delayed and he needed to care for his daughter after the pre-arranged childcare arrangement broke down. The tribunal found that, at around 2 pm on that day, he had told the respondent enough about the circumstances to engage s57A ERA 1996. It also found that requiring him to take annual leave or make up the time on another shift was not compliant with that right at that stage.

The tribunal accepted that the claimant resigned because of what happened on 7/8 October 2020, but it held that the respondent's conduct did not amount to a constructive dismissal. Applying Western Excavating and Malik, it found no significant repudiatory breach going to the root of the contract and no conduct calculated or likely to destroy trust and confidence. The respondent had a wider management reason for refusing ad hoc shift swaps, it had tried to offer alternatives, there was no threat of discipline or dismissal, and the claimant could have raised a grievance. The unfair dismissal claim was therefore dismissed.

The separate wages claim succeeded. The respondent had deducted £496.40 from the claimant's final salary for training costs linked to ADR/CPC courses. The tribunal held that the training fee agreements, which said the respondent would 'look to recover' the costs on a sliding scale, did not amount to authority for a deduction from wages under s13 ERA 1996. The holiday pay issue had been resolved before the hearing, and a separate overdeduction of £628.07 for holiday pay was repaid on 18 January 2021.