ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4114331/2019 Hearing Held at Glasgow on 22, 23, 24, and November 2021 Employment Judge: M A Macleod James McQuilken v Represented by Mr A McIntosh Solicitor W & M Watson Packaging Limited — 2022

James McQuilken worked for W & M Watson Packaging Limited as a salesman from 10 February 2017. The dispute centred on whether he had resigned on 12 June 2019 or was later dismissed. The tribunal found that his words and conduct on 12 and 13 June 2019, including leaving the office after saying he had had enough and handing back his phone while saying he would not be going back, were sufficiently unambiguous to indicate an intention to resign at that point.

However, the tribunal held that the respondent did not implement any resignation and that the employment relationship continued after the meeting on 17 June 2019, when Mr Kelly told him he was suspended. The tribunal found that the position between the parties remained confused until 22 August 2019, when the claimant was dismissed by letter. The reason for dismissal was conduct, namely the claimant’s refusal to process orders and, in the respondent’s view, to perform the sales role in the way required.

The dismissal was found unfair because the respondent carried out no meaningful investigation before dismissing him, did not tell him that the 22 August meeting was disciplinary, did not advise him of any right to be accompanied, and did not offer any appeal. The tribunal also found an unreasonable failure to comply with the ACAS Code of Practice and applied a 10% uplift. It rejected a Polkey reduction, but reduced both the basic and compensatory awards by 25% for contributory conduct, finding that the claimant’s conduct from 5 June to 22 August 2019 was obstructive and blameworthy. The claim was presented in time because early conciliation extended the limitation period.