Albert v Vidionics Security Systems Ltd

In a constructive dismissal claim, an employer’s introduction of additional disciplinary matters at a hearing may constitute a breach of the implied term of trust and confidence, depending on the circumstances. The relevant question includes whether the employee had a fair opportunity to address the matters, particularly where they arose after the original disciplinary notice. An employment tribunal must make clear findings on what occurred, whether any breach was repudiatory, and whether the alleged breach was an effective cause of the employee’s resignation. A tribunal’s conclusion cannot stand where it fails to determine those essential issues.

The claimant brought claims for unfair dismissal and race discrimination. The race discrimination claim was dismissed and was not appealed. The unfair dismissal claim concerned an alleged constructive dismissal arising from disciplinary proceedings about timesheets, together with allegations that the claimant had failed to take a hoist to two call-outs and had driven a vehicle with defective tyres.

The claimant had received advance notice of the timesheet issue, but contended that the hoist and tyre matters were introduced at the reconvened disciplinary hearing without prior notice. He resigned during an adjournment and subsequently confirmed his resignation. The Employment Tribunal dismissed the constructive dismissal claim, but its findings were ambiguous and did not determine whether the additional matters were raised, whether doing so was a breach, or whether any breach caused the resignation.

1. Appeal allowed. The Employment Tribunal’s decision could not stand because it failed to make clear findings on material issues.
2. The tribunal had to determine whether the hoist and defective-tyre allegations were raised at the disciplinary hearing. Its wording was too ambiguous to establish what happened.
3. If those matters were raised, the tribunal had to assess whether doing so was a breach of the implied term of trust and confidence. That assessment required judgment in the circumstances, including that the matters may have arisen after the original disciplinary notice. The Employment Appeal Tribunal did not prescribe the result.
4. The tribunal also had to determine causation: whether any perceived breach was an effective cause of the claimant’s resignation, or whether he resigned for unrelated reasons, including a desire to leave before possible dismissal.
5. The claim was remitted to a differently constituted Employment Tribunal for reconsideration. The remission did not indicate that the claim was bound to succeed or fail. The dismissal of the race discrimination claim remained undisturbed.

• Employment Tribunal: dismissed the claimant’s constructive unfair dismissal claim and his race discrimination claim. The race discrimination dismissal was not appealed.
• Employment Appeal Tribunal: allowed the appeal against dismissal of the constructive dismissal claim and remitted it to a differently constituted tribunal.