IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

ANDRE JULIAN THEBAULT

CLAIMANT

 

AND

 

 

HOMEBUYER FINANCIAL SERVICES LTD

RESPONDENT


 

TRIBUNAL JUDGMENT


 

 

 

Reference:                 [2018] TRE 071

 

Hearing Date:                17 January 2019           

 

Before:                            Mrs H G Griffin, Chairman

 

Appearance:

 

For the Claimant:           Advocate H Heath, HJH Law

For the Respondent:     Mr T Riley, HR Now Ltd

                                   

 

THE DECISION

 

The Claimant’s claim of constructive unfair dismissals fails.

 

The Claimant’s claim for wrongful dismissal fails.

 

The Claimant’s claim for breach of contract for unpaid bonus fails.

 

The parties agreed at the hearing that the Respondent owed the Claimant £1,310.34 for unpaid holiday.

 

 

THE REASONS

 

Background

 

The Claimant’s case as formulated in his claim form

1.       By a claim form presented on 13 June 2018, the Claimant brought the following complaints:

a)       constructive unfair dismissal;

b)      wrongful dismissal (failure to give notice to terminate);

c)       unpaid holiday pay; and

d)      breach of contract (failure to pay a bonus on business written by the Claimant during October 2017),

(together “Claims”).

 

2.       The Respondent denied the Claims.

 

3.       I conducted a case management meeting (“CMM”) with the parties on 13 August 2018 after which I sent out case management orders (“Orders”) which included a summary of issues.

 

Issues

 

Constructive Dismissal

4.       The Claimant alleged that he was constructively dismissed, in that he terminated his contract of employment in circumstances in which he was entitled to terminate it by reason of the employer’s conduct. The Claimant claimed that the Respondent acted in fundamental breach of contract in respect of the implied term of mutual trust and confidence. The Claimant claimed that the following alleged acts amounted to such breaches:

 

a)       accusing the Claimant of being a ‘bad example’ to staff by drinking alcohol during meeting with clients having previously granted the Claimant permission for alcohol to be drunk;

b)      accusing the Claimant of being in breach of procedures when he asked clients to sign an otherwise empty ‘fact-find’ data form;

c)       the Managing Director attending the Claimant’s house without invitation on 1 November 2017; and 

d)      the disciplinary and grievance process being unfair because:

 

                     i.            the Respondent did not afford the Claimant the opportunity to be accompanied to a disciplinary hearing; and

                   ii.            the advisor from HR Now Ltd (“HR Now Advisor”) who conducted the grievance hearing was biased.

 

5.       The Respondent:

 

a)       denied that any of the above acts amounted to breaches of contract; and

b)      asserted that the Claimant did not resign in response to the above alleged breaches but because he did not accept that he should receive a final written warning for his conduct.

Wrongful dismissal - Notice pay

6.       The Claimant asserted that he was entitled to damages for breach of contract for his unpaid notice arising from the alleged constructive dismissal.  The Respondent denied this.

 

Holiday pay

7.       At the Hearing, the parties agreed that the Claimant was entitled to holiday pay for the period from 1 January 2018 until his effective date of termination on 18 May 2018 (during which time he was absent on sick leave).  The parties agreed that the Claimant was entitled to receive £1,310.34.

 

8.       The Claimant also claimed an additional 4.5 days holiday pay for his notice period if the Tribunal were to find that he was constructively dismissed.  The Respondent denied this element of the holiday pay claim.

 

Breach of contract – bonus payment

9.       The Claimant asserted that the Respondent was in breach of contract by failing to pay a monthly bonus to the Claimant in October 2017.  The Respondent denied this claim.

 

Documents and evidence

Witness evidence

10.   I received witness statements and evidence under oath from each of the following witnesses:

 

a)       the Claimant;

b)      X, former Compliance Officer;

c)       Michael Barney, Managing Director; and

d)      David Troy, Chairman.

 

Hearing File

11.   The Respondent provided a file of documents in accordance with the Orders.  As set out below, the Claimant provided a file of documents the day before the Hearing.

 

Submissions

12.   Both parties made their arguments orally by way of submissions and the Respondent also filed written submissions.

 



Unless Order and Applications

 

Unless Order

13.   The day before the Hearing, I noticed that the Hearing file did not include the Claimant’s witness statements.  I therefore issued an ‘unless order’ requiring that the Claimant’s witness statements be provided to both the Respondent and the Tribunal by 3.30pm that afternoon.  The Tribunal received the Claimant’s witness statement shortly before the deadline.  The Respondent already had a copy of X’s witness statement.

 

14.   After the Hearing, I learned that the Claimant had, in fact, sent his statement to the HR Now in accordance with the Orders. 

 

Claimant’s File

15.   The day before the Hearing, the Tribunal and the Respondent received a file of documents from the Claimant to be included as evidence at the Hearing. This late filing was in breach of the Orders.

 

Applications

16.   By email on the same day, the Respondent requested an adjournment on the basis that Mr Riley did not have sufficient time to read the Claimant' witnesses’ statements and the documents provided in the newly submitted file.

 

17.   Having considered the Tribunal’s various obligations under the provisions of the Overriding Objective, I rejected the application for an adjournment because:

 

a)       notwithstanding the late filing of the witness statements, the Respondent had already had sight of several versions of the Claimant's statement since September and the latest version did not contain any new or unexpected evidence.  The Respondent would therefore not suffer any significant prejudice; and

b)      the case had already been adjourned once and the Chairman did not consider a further delay in these circumstances to be in accordance with the Overriding Objective.

 

18.   At the Hearing, Mr Riley made further applications to:

 

a)       strike out the Claimant’s claims on the basis that the Claimant had not fully complied with the unless order (because X’s statement was not sent at the same time);

b)      exclude from evidence the contents of the Claimant’s file because it had been filed late; and

c)       to adjourn the Hearing because Mr Riley had not had time to discuss the new paperwork with his clients.

 

19.   For the same reasons as set out above, I rejected each application.  I adjourned the Hearing for 30 minutes to enable Mr Riley to read the documents and to take instructions from his client.

 

Evidence


20.   I considered all of the evidence (both written and oral) provided by each of the witnesses and made the findings of facts as set out below. I only summarise in this judgment the facts which were relevant to the issues as agreed by the parties at the CMM.  Where I have had to resolve factual disputes, I have done so on the balance of probabilities on the basis of my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence, including the documentary evidence.

 

Background

21.   The Respondent is a regulated advisory company which gives investment and insurance advice.  It is regulated by the Jersey Financial Services Commission (“Commission”).

 

22.   The Respondent employed the Claimant as a Client Relationship Manager between 1 March 2009 and 18 May 2018 when the Claimant resigned without notice and claimed constructive dismissal.  The Claimant provided insurance advice only.  He was not qualified to provide investment advice.

 

The Wine Incident – First alleged breach

23.   There was no dispute between the parties that the Respondent had a strict no alcohol policy.

 

24.   On 27 October 2017, the Claimant attended a meeting with clients (“Client Meeting”). On the balance of probabilities, I made the following findings of fact:

 

a)       Mr Barney and the Claimant met in the corridor outside the meeting rooms as the Claimant was taking a bottle of wine and glasses to his clients;

b)      the Claimant informed Mr Barney that he and the Clients wanted to have a drink;

c)       Mr Barney was taken aback by the Claimant’s breach of the ‘no alcohol’ policy but, in order to avoid embarrassment in front of the clients (who expected to have the wine), he reluctantly instructed the Claimant to be discreet as there were other meetings taking place;

d)      the Claimant took Mr Barney’s reluctant agreement to mean that he had been granted ‘express permission’ to drink the wine.

 

25.   Mr Barney reflected overnight and decided that he had to raise the issue with the Claimant. The evidence showed that he intended to do this informally.  Mr Barney sent an email to the Claimant [p39] explaining that:

 

a)       he had had time to reflect on the Claimant’s conduct;

b)      drinking alcohol on the premises was "totally unacceptable behaviour";

c)       the Claimant had put Mr Barney “in a position where [he] could not act in the way [he] would have wanted to … without causing further embarrassment"; and

d)      he would like to have a meeting with the Claimant on Monday morning.

 

26.   The Claimant refused to meet with Mr Barney on the basis that “its just wasting both our time” [p42].  It was clear from the evidence (both contained in the email and at the Hearing) that the Claimant did not wish to discuss the matter with Mr Barney because he did not think it was a serious incident. 

 

27.   The evidence showed that Mr Barney and the Claimant did have a brief and heated discussion during which Mr Barney suspended the Claimant.

 

Fact Find Incident

28.   The Respondent uses "fact-find" forms to collect information from clients. When completed, a fact-find form provides details such as names, addresses, dates of birth, names and dates of birth of children, assets and liabilities, salary etc.

 

29.   A correctly completed fact-find form contains all of the relevant client details and must be signed by both the client and the advisor.  The Claimant was not qualified to provide investment advice and therefore could not sign the form, but I accepted the Respondent’s evidence that there was an arrangement whereby Mr Barney could sign fact-find forms for the Claimant when required.

 

30.   During the Client Meeting, the Claimant instructed his clients to sign an otherwise empty fact-find form [p45-52] (“Fact-Find Incident”)

 

31.   The Respondent considered the Fact-Find Incident to be a breach of internal procedures and commenced disciplinary action.  Following the disciplinary hearing, the Respondent sought advice from Oben Regulatory (“Oben”) on whether the Fact Find Incident amounted to a regulatory breach. By letter dated 5 January 2018 [p69-71], Oben confirmed that, in its view, the Fact Find Incident was:

 

a)       in breach of the Respondent’s internal policies and procedures;

b)      in breach of sections 2.3 and 2.6 of the Code of Practice for Investment Business (“Code”); and

c)       grounds for the Commission to take regulatory action against the Respondent.

 

32.   Oben’s letter concluded as follows:

 

"We consider [the Respondent] should, therefore, treat this matter with the utmost seriousness with reference to, inter alia, its internal disciplinary measures. We further consider, having regard to [the Respondent's] duty of candour with the Commission, that [the Respondent] should apprise the Commission of this issue and the actions it has taken in response."

 

33.   On the balance of probabilities, I accepted Mr Barney’s evidence that:

 

a)       he communicated with the Commission and attended a meeting to notify the Commission about the Fact-Find Incident;

b)      the Commission deemed the Fact-Find Incident to be a breach of the Code; and

c)       the Commission required the Respondent to keep it updated on the outcome of the Claimant’s disciplinary hearing.

 

34.   The Claimant and X gave evidence that, because Mr Barney had not formally reported the Fact-Find Incident to X (Compliance Officer), it could not constitute a breach of the Code. Furthermore, X’s gave evidence that because:

 

a)       there was no date on the document; and

b)      it had not been signed by an adviser

 

the signed fact-find form was useless and could not be relied upon.  In her view, therefore, the Claimant’s act did not put the Respondent in breach of the Code.  X also gave evidence that the Code does not specify that signing a blank document of this nature amounts to a breach of the Code.

 

 

 

Visit to Claimant’s house

35.   On 1 November 2017, the Claimant attended the Respondent's office for a meeting with Mr Barney (“November Meeting”) during which Mr Barney informed the Claimant that there was to be a formal disciplinary hearing on 7 November 2017.  The evidence showed that the November Meeting was fraught and that the Claimant was upset by it.

 

36.   The Claimant asserts that the Respondent should have given him the opportunity to be accompanied by a representative to the November Meeting and that its failure to do so amounted to a breach of the implied duty of mutual trust and confidence.

 

37.   Having instructed the Claimant to leave the office pending the outcome of the disciplinary hearing, Mr Barney then decided that he would prefer to settle matters with the Claimant informally. He telephoned the Claimant but the Claimant refused to speak to him. Mr Barney therefore went to the Claimant’s house to try to “make amends”.  It is worth noting that Mr Barney and the Claimant were previously good friends.

 

38.   The Claimant refused to open the door to Mr Barney.  Mr Barney repeatedly knocked on the door and on at least one occasion called through the letterbox to the Claimant asking him to come and speak to him.  The Claimant called the police.  When the police arrived, Mr Barney was still outside the Claimant’s house.  The Police Constable’s notes of the incident showed that, after speaking to both men, the Police Constable advised Mr Barney that his attendance at the house was "inappropriate" and that he should leave [File 2, p8-9].

 

Disciplinary process

39.   After a delay caused by the Claimant’s absence on sick leave, the Claimant attended a disciplinary hearing (“Disciplinary Hearing”) on 3 January 2018. The allegations were:

 

a)       the Claimant consumed alcohol on the premises during a meeting despite a “subtle reminder" that this should not be done;

b)      the Fact-Find form which the Claimant completed at the Client Meeting was not properly completed and had been signed by the clients in breach of the Respondent's policies and procedures and against internal and external compliance requirements; and

c)       the Claimant refused to meet informally with Mr Barney when requested to do so.

 

40.   Mr Troy conducted the Disciplinary Hearing with a representative from HR Now providing HR support. The Respondent subsequently sent the minutes of the Disciplinary Hearing (“Minutes”) [p55-61] to the Claimant for his comments. 

 

41.   By letter dated 23 January 2018 [p62], the Claimant wrote to Mr Troy complaining that:

 

a)       he had not been allowed a representative at the Disciplinary Hearing; and

b)      the Minutes did not accurately reflect what was said during the Disciplinary Hearing.

 

42.   Mr Troy responded to the Claimant on 30 January 2018 [p65], stating that:

 

a)       the Claimant was afforded the opportunity to bring a representative but chose not to bring anyone; and

b)      the Minutes were intended to "capture the salient points" and not to record every word that was said.  However, Mr Troy offered the Claimant the opportunity to provide amended Minutes by midday on 2 February 2018. The Claimant did not provide any amended Minutes.

 

43.   During his evidence, the Claimant acknowledged that the Respondent did give him the opportunity to bring a representative to the Disciplinary Hearing but he did not do so.  He accepted that the Respondent discharged its duty in this regard and that the onus was on the Claimant to find and bring with him a representative if he wished to do so.

 

44.   By letter dated 14 February 2018 [p66-68], Mr Troy wrote to the Claimant (“Decision Letter”) informing him that he had upheld each of the allegations and that the decision had been taken to issue the Claimant with a final written warning (“Final Written Warning”). The Decision Letter gave the Claimant five days from the date of the Decision Letter to appeal against the decision.

 

Appeal

45.   The Claimant did not appeal against the final written warning.

 

46.   In his evidence, the Claimant complained that the Decision Letter was dated 14 February 2018 but was not sent to the Claimant until 19 February 2018. He therefore had little or no time in which to submit an appeal because the five-day deadline to appeal had already elapsed by the time he received the Decision Letter. His evidence was that this delay was a deliberate ploy by Mr Troy to stop the Claimant from appealing against the Final Written Warning.  The Claimant did not try to contact Mr Troy to clarify the deadline for the appeal or to try to extend that deadline.

47.   On 5 March 2018 (in correspondence with the Claimant’s former lawyer) Mr Troy invited the Claimant to appeal against the Final Written Warning.  He stated that an “independent person” from Oben would hear the appeal.

 

48.   Again, the Claimant did not appeal against the Final Written Warning and gave evidence at the Hearing that any representative from Oben would be biased because they were being paid by the Respondent.  As such, the Claimant considered that the outcome of any appeal would be a “fait accompli”.

 

Grievance

49.   By letter dated 22 March 2018 [p76-78], the Claimant issued a formal grievance (“Grievance”) against Mr Barney. The Claimant attended the grievance hearing (“Grievance Hearing”) on 10 April 2018. It was conducted by the HR Now Advisor. The Respondent provided minutes to the Claimant on 22 April 2018 [p82-87].

 

50.   In his evidence, the Claimant asserted that the Grievance Hearing was rendered unfair because the HR Now Advisor was not impartial.  The Claimant did not provide any evidence in support of his allegation of impartiality.

 

51.   By letter dated 2 May 2018 [p90-93], the Respondent rejected the Grievance.  The Respondent gave the Claimant the right to appeal, but the Claimant did not do so.

 

52.   By email dated 18 May 2018 [p34-35], the Claimant resigned with immediate effect stating that his departure was "due to loss of trust and confidence in the company, its management and the way that I have been dealt with."

 

The Bonus

53.   The parties agreed at the Hearing that there was an oral agreement (“Bonus Agreement”) between the Claimant and the Respondent that:

 

a)       the Claimant was contractually entitled to receive a 25% bonus (“Bonus”) based on the value of new business which was brought in by the Claimant each month; and

b)      the Respondent was contractually entitled to withhold payment of the Bonus in the event of a regulatory breach by the Claimant.

 

54.   The parties agreed that in October 2017 the Claimant brought in £9,186.25 of new business and that ordinarily he would have been entitled to receive a Bonus for October 2017 of £2,296.63.

 

55.   The Respondent refused to pay the Bonus to the Claimant for October 2017 because it asserted that the Fact Find Incident amounted to a regulatory breach and that the Claimant therefore forfeited his right to the Bonus under the terms of the Bonus Agreement.

 

56.   As set out above, the Claimant disputed that his actions amounted to a regulatory breach and asserted that the Respondent was in breach of contract for failing to pay the Bonus.

 

The Law

 

57.   Article 61 of the Employment (Jersey) Law 2003 ("Employment Law") states that an employee shall have the right not to be unfairly dismissed. Article 62(1)(c) of the Law states:

“62.       Circumstances in which an employee is dismissed

(1)        For the purposes of this Part an employee is dismissed by his or her employer if (and, subject to paragraph(2), only if) –

           

(c)        the employee terminates the contract under which he or she is employed (with or without notice) in circumstances in which the employee is entitled to terminate it without notice by reason of the employer's conduct.”

 

58.   In order to establish a successful complaint for constructive dismissal, four conditions must be met:

a)       the employer must be in breach of a contractual term (either an express term or an implied term);

b)      the breach of contract must be fundamental, amounting to a repudiatory breach of contract;

c)       the employee must resign in response to the employer's repudiatory breach of contract; and

d)      the employee must not delay too long in terminating the contract; otherwise the breach may be found to have been waived and the contract affirmed.

(See:  Robinson v States of Jersey, Department of Education, Sport & Culture (JET 1910-028/05); Oprey v Woolworths plc (JET 2604-085/07); Western Excavating (ECC) v Sharpe [1978] ICR 221).

 

Mutual trust and confidence

59.   A breach of contract may be in the form of a breach of an express or an implied term.  The most common implied term is that of 'mutual trust and confidence'.  The test of whether conduct amounts to a breach of this implied term was addressed in Malik v BCCI [1997] UKHL 23, and has been applied by the Tribunal on previous occasions (Carratu v United Fashions Limited JET 110/2011).  In Malik, the House of Lords stated:

… the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

 

60.   Thus, before finding that there has been a breach of trust and confidence, the Tribunal must be satisfied both that:

 

a)       there was conduct which destroyed or seriously damaged trust and confidence between employer and employee; and

b)      the employer’s conduct was done without reasonable and proper cause.

61.   Any breach of the implied term of trust and confidence will necessarily strike at the root of the contract and will therefore always be repudiatory (Morrow v Safeway Stores [2002] IRLR 9).

 

Acceptance and resignation in response to breach 

62.   A repudiatory breach by an employer does not bring the contract to an end automatically.  The contract is not terminated until the point at which the breach is accepted by the employee (Société Générale, London Branch v Geys [2012] UKSC 63).  

63.   The employee must be able to show that he or she resigned in response to the relevant breach.  This does not mean that the breach must be the only cause of the employee’s resignation.  Once a repudiatory breach of contract has been established, an employee can claim constructive dismissal so long as the breach “played a part” and was “one of the factors relied upon” in the employee’s resignation [Nottinghamshire County Council v Meikle [2004] IRLR 703Abbe Cars (West Horndon) Ltd v Ford UKEAT/0472/07Wright v North Ayrshire Council UKEAT/0017/13]. 

 

 

 

Affirmation

64.   If an employee delays too long in resigning in response to an employer’s breach of contract, the employee may be deemed through their conduct to have affirmed that contract with the result that the employee will lose the right to claim constructive dismissal (Western Excavating v Sharp).  However, in Bournemouth University Higher Education Corporation v Buckland 2010 ICR 908, the Court of Appeal stated that, due to the pressure on employees at such times, a careful analysis of the facts is necessary before deciding whether there really has been an affirmation. 

65.   In El-Hoshi v Pizza Express Restaurants Ltd EAT 0857/03, the EAT stated that there must be some express or implied event which indicates affirmation.  The EAT stated that mere delay was a neutral act and was not itself capable of amounting to affirmation.  However there may be circumstances where affirmation may be implied by a prolonged delay in resignation (Mari v Reuters Ltd UKEAT/0539/13).

66.   I take from the above cases that an employee’s delay in resigning in response to a repudiatory breach by the employer is one factor which the Tribunal must take into account in deciding whether or not the contract has been affirmed.  However, delay in and of itself will not lead automatically to the conclusion that the employee has affirmed.  Instead, there must be an event which indicates affirmation and the Tribunal must look at all the circumstances to establish whether, on the facts of each case, the employee affirmed the contract through their conduct.

 

Course of conduct and the ‘last straw’

67.   In Maclagan v States Employment Board 79/15 the JEDT confirmed the principle that a course of conduct can cumulatively amount to a repudiatory breach of the implied term of trust and confidence, entitling an employee to resign and claim constructive dismissal.  A ‘last straw’ incident does not, by itself, have to be repudiatory in its nature, but it must contribute (however slightly) to the breach of the implied term of trust and confidence (Lewis v Motorworld Garages Ltd 1986 ICR 157, CA). In circumstances where:

a)       one of the events in the course of conduct was serious enough in itself to amount to a repudiatory breach of contract; and

b)      the employee did not treat the breach as such by resigning

the failure by the employee to resign does not automatically mean that the employee has affirmed the contract (Lewis v Motorworld and Abbey National plc v Robinson EAT 743/99).

 

68.   In Omilagju v Waltham Forest London Borough Council 2005 ICR 481, CA, the English Court of Appeal set out what constitutes a ‘last straw’.  The court stated that a tribunal must only focus on “whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer.”

Conclusion

69.   I carefully considered all of the documentary and oral evidence, and assessed in turn each of the four acts identified by the Claimant as being repudiatory breaches of contract. 

 

Constructive unfair dismissal

Was there a breach of contract which was repudiatory in nature?

 

Wine incident – no breach

 

70.   The claim form identified Mr Barney’s use of the words ‘bad example’ as being a breach of the implied duty of mutual trust and confidence.  However it was clear from the evidence and from Advocate Heath’s questioning that the claim arose from the Claimant’s belief that he had been given express consent to drink alcohol with his clients.  The Claimant asserted that to discipline him having given ‘permission’ caused a breakdown of trust and confidence.

 

71.   Based on the evidence before me (including the Claimant’s manner at the Hearing) I accepted Mr Barney's evidence that he felt that he was placed in an impossible position given that the clients expected to have a drink. I also found that the Claimant should have appreciated that ‘permission’ was not given willingly.

 

72.   I found that Mr Barney was entitled to reflect on the Wine Incident and it was not unreasonable of him to ask to discuss it with the Claimant informally.  The evidence showed that the Claimant stridently refused to engage in any discussion with Mr Barney because he did not consider himself to have behaved inappropriately.  

 

73.   When viewed objectively, I was satisfied that Mr Barney’s suggestion to the Claimant that he was in breach of the alcohol policy was not conduct which would seriously damage or destroy the relationship of trust and confidence between the Claimant and the Respondent.  Equally, given the Claimant’s refusal to discuss the Wine Incident informally with Mr Barney, the decision to investigate the matter through the disciplinary process was a reasonable one.

 

74.   The Wine Incident therefore did not amount to a breach of the implied duty of mutual trust and confidence.

 

Fact Find Incident - no breach


75.   I carefully considered X’s evidence, but also noted that, as Managing Director, Mr Barney was entitled to deal with discreet compliance issues without including the Compliance Officer if he considered it appropriate.  I also noted that:

 

a)       Mr Troy considered the Fact Find Incident at the Disciplinary Hearing;

b)      Mr Troy sought independent advice from Oben before reaching his decision to issue a Final Written Warning; and

c)       the Commission considered the Fact Find Incident to be a regulatory breach of the Code.

 

76.   When viewed objectively, I was satisfied that the manner in which the Respondent dealt with this matter was not likely to seriously damage or destroy the relationship of trust and confidence. 

 

77.   Furthermore, having considered all of the evidence, I concluded on the balance of probabilities that the Claimant did commit a regulatory breach.

 

78.   I therefore concluded that the Respondent’s conduct was appropriate in the circumstances.  The Fact Find Incident did not constituted a breach of the implied duty of trust and confidence.

 

Disciplinary and grievance process – no breach

 

November Meeting

79.   I considered the Claimant’s assertion that the November Meeting was a ‘disciplinary hearing’ and that he was therefore entitled under Article 78A of the Employment Law to be accompanied to the November Meeting.

 

80.   I was satisfied that the November Meeting was a meeting between the Claimant and his line manager at which he was informed that a formal disciplinary process was being commenced. Article 78A only applies for disciplinary hearings.  The November Meeting was a meeting to notify the Claimant that he was to attend a Disciplinary Hearing.  The Claimant did not provide any evidence to suggest that the Respondent was in breach of any internal procedures in this regard.

 

Appeal

81.   I accepted that the date of the Decision Letter was misleading and possibly confusing.  However, the Claimant made no effort to tell Mr Troy that he wished to appeal. Furthermore, despite Mr Troy affording the Claimant the opportunity to appeal in his letter to the Claimant's former lawyer on 5 March 2018, the Claimant still did not appeal against the Final Written Warning.  I therefore concluded that the Respondent appropriately discharged its obligation to the Claimant.  It was the Claimant’s responsibility to pursue an appeal if he wanted to do so. 

 

Grievance

82.   The Claimant asserted that the HR Now Advisor was biased and that the Grievance Hearing was therefore unfair. The Claimant did not provide any evidence in support of this allegation and I therefore rejected it.  I also noted that the Claimant did not appeal against the Grievance outcome.

 

83.   When viewed objectively, the acts identified by the Claimant which occurred in the disciplinary and grievances processes were not likely to seriously damage or destroy the relationship of trust and confidence between the Claimant and the Respondent.

 

84.   There was no breach of the implied duty of mutual trust and confidence in this regard.

 

Mr Barney’s attendance at the Claimant’s house – repudiatory breach

 

85.   I considered whether Mr Barney's attendance and behaviour at the Claimant’s house destroyed or seriously damaged trust and confidence between the Claimant and the Respondent. I accepted Mr Barney's evidence that he wanted to try to "make amends" informally. However given the somewhat fraught nature of the earlier November Meeting and the fact that the Claimant had refused to speak to him on the telephone, Mr Barney's decision to go to the Claimant’s house was unprofessional and inappropriate.  Whilst he may have found the Claimant's behaviour to be frustrating, the Claimant was entitled to expect to be left alone in his own home.

 

86.   Furthermore, having arrived at the Claimant's house and learned that the Claimant did not wish to speak to him and would not open the door, Mr Barney should have left immediately. Instead, he continued to knock on the Claimant’s door, call through the letterbox for the Claimant to open the door and remained outside the house for long enough for the Claimant to both call the police and for the police to arrive at the property.

 

87.   Having considered all of the evidence I was satisfied that Mr Barney’s prolonged attendance at the Claimant’s house and his behaviour over a protracted period (when it was absolutely clear to him that he was not welcome) amounted to conduct which, when viewed objectively, seriously damaged or destroyed the relationship of mutual trust and confidence between the Claimant and the Respondent.

 

88.   As set out above, a breach of the implied duty of mutual trust and confidence is necessarily repudiatory in nature.

 

Was there a course of conduct and ‘last straw’ incident? – no breach

 

89.   The Claimant asserted that all of the above acts constituted a course of conduct which cumulatively breached the implied duty of mutual trust and confidence. However at no point during the Hearing did the Claimant identify a "last straw" act. If the “last straw" was the alleged bias of the HR Now Advisor at the Grievance Hearing (which was the last incident identified by the Claimant as being a breach of contract) then, as set out above, the Claimant did not provide any evidence to support the allegation of bias made against the HR Now Adviser.  

 

90.   I concluded that there was no course of conduct which could cumulatively amount to a repudiatory breach by the Respondent.  Furthermore, there was not a ‘last straw’ incident.

 

Did the Claimant resign in response to the breach?

91.   It was clear from his evidence at the Hearing that the main reasons for the Claimant’s resignation were:

 

a)       that the Respondent had been unreasonable in pursuing the Fact Find Incident; and

b)      that Mr Barney had ‘lied’ about the Wine Incident.

 

92.   However, the documentary evidence showed that the Claimant did raise the issue of Mr Barney's attendance at his house during both the Disciplinary Hearing and in the Grievance. I applied the guidance as set out in Nottingham County Council and concluded that the Respondent’s breach of contract (ie Mr Barney’s prolonged attendance at the Claimant’s house) “played a part” in the Claimant’s decision to resign. 

 

 

 

Did the Claimant affirm the contract?

93.   In reaching my decision on this point, I took particular note of the following facts:

 

a)       the repudiatory breach of contract took place some six months before the Claimant’s resignation;

b)      there was no series of acts or ‘last straw’ incident which could ‘resurrect’ a previous repudiatory breach;

c)       the Claimant participated in the Disciplinary Hearing and chose to file the Grievance in accordance with the Respondent’s internal procedures;

d)      the Claimant only raised a formal grievance about Mr Barney’s conduct some four months after the breach;

e)      the Claimant asserted that he delayed resigning in the hope that the disciplinary and grievance processes would conclude in his favour; and

f)         the Claimant was absent on sick leave between 1 November 2017 and 18 May 2018.

 

94.   I applied El Hoshi and Mari to the facts.  I concluded that, when viewed in the context of the significant delay between the breach and the Claimant’s resignation, the fact that the Claimant engaged in the disciplinary process and (of his own volition) in the grievance process indicated affirmation of the contact by the Claimant.

 

95.   I therefore concluded that the Claimant waived the Respondent’s breach and affirmed the contract. 

 

96.   Consequently, the Respondent did not constructively dismiss the Claimant.  The Claimant resigned and his claim of constructive unfair dismissal fails.

 

Wrongful dismissal


97.   In light of the above finding that there was no constructive dismissal, the Claimant’s claim for notice pay fails.

 

Bonus


98.   The Tribunal had to consider whether, by obtaining client signatures for an otherwise empty Fact Find data sheet, the Claimant committed a regulatory breach entitling the Respondent to withhold the Bonus for October 2017.

 

99.   As set out in paragraph 77 above, I concluded that, on the balance of probabilities, the Fact-Find Incident amounted to a breach of the Code.  The Fact Find Incident was therefore a regulatory breach under the terms of the Bonus Agreement and the Respondent was entitled to withhold payment of the Bonus.

 

100.  Consequently, the Respondent was not in breach of contract when it failed to pay the Bonus to the Claimant and the Claimant’s claim fails.

 

Holiday pay


101.  The parties agreed that the Respondent owed the Claimant holiday pay for the period when he was absent on sick leave between 1 January 2018 and 18 May 2018.  Statutory holiday entitlement continues to accrue during such absences.

 

102.  Therefore the Respondent shall pay to the Claimant £1,310.34.

 

103.  The Claimant’s claim for an additional four days holiday for the period covering the Claimant’s notice period fails.

 

Summary of Award

 

Damages for unpaid holiday pay

£1,310.34

TOTAL AWARD

£1,310.34

 

Mrs H G Griffin, Chairman                                                    Date:           7 February 2019

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Page Last Updated: 08 Feb 2019