IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
ANDRE JULIAN THEBAULT
HOMEBUYER FINANCIAL SERVICES LTD
Reference:  TRE 071
Hearing Date: 17
H G Griffin, Chairman
For the Claimant: Advocate
H Heath, HJH Law
For the Respondent: Mr
T Riley, HR Now Ltd
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 Claimant’s case as formulated in his
By a claim form presented on 13 June 2018, the
Claimant brought the following complaints:
constructive unfair dismissal;
wrongful dismissal (failure to give notice to
unpaid holiday pay; and
breach of contract (failure to pay a bonus on
business written by the Claimant during October 2017),
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.
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:
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;
accusing the Claimant of being in breach of
procedures when he asked clients to sign an otherwise empty ‘fact-find’
the Managing Director attending the
Claimant’s house without invitation on 1 November 2017; and
the disciplinary and grievance process being unfair
the Respondent did not afford the Claimant the
opportunity to be accompanied to a disciplinary hearing; and
the advisor from HR Now Ltd (“HR Now
Advisor”) who conducted the grievance hearing was biased.
denied that any of the above acts amounted to
breaches of contract; and
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
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.
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
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
Documents and evidence
10. I received
witness statements and evidence under oath from each of the following
a) the Claimant;
b) X, former
Barney, Managing Director; and
d) David Troy,
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.
12. Both parties made
their arguments orally by way of submissions and the Respondent also filed
Order and Applications
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.
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.
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.
considered the Tribunal’s various obligations under the provisions of the
Overriding Objective, I rejected the application for an adjournment because:
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
b) exclude from
evidence the contents of the Claimant’s file because it had been filed late;
c) to adjourn the
Hearing because Mr Riley had not had time to discuss the new paperwork with his
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
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
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
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;
alcohol on the premises was "totally
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
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
c) grounds for
the Commission to take regulatory action against the Respondent.
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:
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
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.
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.
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].
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
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
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.
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”.
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 parties agreed at the Hearing that there was an
oral agreement (“Bonus Agreement”) between the Claimant and the
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
the Respondent was contractually entitled to
withhold payment of the Bonus in the event of a regulatory breach by the
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
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
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:
in which an employee is dismissed
the purposes of this Part an employee is dismissed by his or her employer if
(and, subject to paragraph(2), only if) –
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.”
order to establish a successful complaint for constructive dismissal, four
conditions must be met:
employer must be in breach of a contractual term (either an express term or an
breach of contract must be fundamental, amounting to a repudiatory breach of
employee must resign in response to the employer's repudiatory breach of
employee must not delay too long in terminating the contract; otherwise the
breach may be found to have been waived and the contract affirmed.
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  ICR 221).
trust and confidence
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  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.”
before finding that there has been a breach of trust and confidence, the
Tribunal must be satisfied both that:
was conduct which destroyed or seriously damaged trust and confidence between
employer and employee; and
employer’s conduct was done without reasonable and proper cause.
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  IRLR 9).
and resignation in response to breach
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  UKSC 63).
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  IRLR 703; Abbe Cars (West Horndon)
Ltd v Ford UKEAT/0472/07; Wright v North Ayrshire Council
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.
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).
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’
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:
of the events in the course of conduct was serious enough in itself to amount
to a repudiatory breach of contract; and
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).
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.”
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
Constructive unfair dismissal
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
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
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.
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
Disciplinary and grievance process – no breach
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.
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.
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
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
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 –
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.
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.
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
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
93. In reaching my
decision on this point, I took particular note of the following facts:
repudiatory breach of contract took place some six months before the
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
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 Respondent did not constructively dismiss the Claimant. The Claimant resigned and his claim of
constructive unfair dismissal fails.
97. In light of
the above finding that there was no constructive dismissal, the
Claimant’s claim for notice pay fails.
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.
the Respondent was not in breach of contract when it failed to pay the Bonus to
the Claimant and the Claimant’s claim fails.
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.
Claimant’s claim for an additional four days holiday for the period
covering the Claimant’s notice period fails.
Summary of Award
for unpaid holiday pay
Mrs H G Griffin, Chairman