Mr W Clowes v Represented by: Ms L Hunter - Solicitor Decorall Limited — 2018

The claimant, a painter and decorator with 15 years' service, brought an unfair dismissal claim and also claimed a redundancy payment, but the redundancy claim was later withdrawn as having been made in error. The tribunal therefore dealt with whether he had been constructively dismissed when he resigned in April 2018.

The claimant said there had been a course of conduct over the previous two years involving dissatisfaction with the number and quality of agency staff on contracts including the Gaiety Theatre in Ayr, Maclay residences, work in Brussels, and Castlebank Place. The tribunal found those complaints had not been raised formally or informally at the time, that there had been no complaints from contractors or clients about the quality of work, and that the evidence about the earlier contracts was vague and appeared retrospective.

The tribunal accepted that the 6 April 2018 meeting about labour for Castlebank Place was amicable, but found that on 9 April the claimant raised his voice when Mr Paterson did not arrive at the site at 7.30am, and that on 10 April Mr Paterson criticised that call before the claimant resigned. The claimant later tried to withdraw that resignation, which the respondent accepted, and he was paid statutory sick pay between 11 April and 18 May and outstanding holiday pay to termination.

Applying section 95(1)(c) of the Employment Rights Act 1996 and the implied term of mutual trust and confidence, with reference to Western Excavating v Sharp and Malik v Bank of Credit and Commerce International SA, the tribunal held that the alleged conduct, whether taken individually or together, was not a breach of contract and was not calculated or likely to destroy trust and confidence. It found that the claimant resigned principally because he had been criticised, not because of any material breach by the respondent, and that the 18 May meeting did not change that conclusion. The constructive dismissal claim was dismissed and no award was made.