Mr J Flannagan v , Lay representative McPherson Ltd — 2024

The claimant, Mr J Flannagan, had worked for McPherson Ltd since 20 January 2004, mainly as a shunter at Diageo's Blackgrange site. The case arose after an altercation on 5 April 2024 with a colleague, Mr Corcoran, in which the claimant called him a liar and repeatedly said "hit me". The respondent investigated after Diageo said it wanted the claimant removed from site, suspended both employees, and later informed the claimant that he would not return to Blackgrange but would instead be offered temporary work and training for a road driving role.

The tribunal accepted that the claimant honestly believed the respondent had lied to him and treated him badly, but found that his evidence was coloured by that perception. Applying the implied term of trust and confidence on an objective basis, and referring to the authorities it cited on constructive dismissal and the last straw doctrine, the tribunal held that the respondent had reasonable and proper cause for how it handled the altercation, the permanent removal from Blackgrange, and the move to road driving. It found the investigation was informal rather than disciplinary, that the claimant was given an opportunity to explain his account, that the letter of concern was not a disciplinary sanction, and that the change in duties was agreed and accompanied by training and support.

The tribunal also rejected the claimant's reliance on the 6 June 2024 email from Diageo's site director, Mr Cai, as a final straw. It held that the email was not conduct by the respondent and did not prove that the respondent had lied about who made the site-removal decision. In conclusion, the tribunal found no fundamental breach of contract, held that the claimant's resignation on 8 June 2024 did not amount to a constructive unfair dismissal under section 95(1)(c) ERA 1996, and dismissed the claim. The notice pay claim was also dismissed because the claimant resigned with immediate effect and was not entitled to notice pay.