Bolomo v ISS Facility Services Ltd

A constructive-dismissal claim may properly be struck out where, after careful evaluation of the available material, it has no reasonable prospect of success. The test is high. It is not met merely because the claim is likely to fail.

An employer's ambiguous proposal, made in a genuine attempt to resolve workplace difficulties and facilitate a return to work, will not amount to a repudiatory breach or the final act in a cumulative breach of trust and confidence where it is innocuous in context. A claimant should seek clarification of a remediable ambiguity. Bare speculation that the employer acted with an improper motive cannot prevent strike-out without an evidential foundation.

The claimant appealed against Employment Judge Glennie's decision to strike out his unfair constructive-dismissal claim.

Earlier Tribunal proceedings had upheld complaints concerning a discriminatory remark, suspension and sick pay. The claimant relied on those matters cumulatively, together with an employer's later proposal that he return to work at different sites, under a different manager, and allegedly for reduced hours.

The proposal followed ACAS-assisted efforts to secure his return to work. The central issue was whether the proposal could arguably constitute a repudiatory breach, or the final straw in a cumulative breach of the implied term of trust and confidence.

1. Appeal dismissed. The Employment Judge was entitled to conclude that the claim had no reasonable prospect of success and to strike it out.

2. The applicable strike-out standard was the high threshold stated in Balls v Downham Market High School & College [2011] IRLR 217. The question was whether the claim had no reasonable prospect of success, not whether it was likely to fail.

3. Even assuming in the claimant's favour that the proposal could be read as offering fewer contractual hours, the surrounding communications showed a genuine attempt by the employer, with ACAS involvement, to resolve the difficulties and enable his return to work. The proposal was ambiguous and made by a human-resources manager seeking to accommodate the medical recommendation. It was not intended as a breach of contract, still less a repudiatory breach.

4. In context, the proposal concerning location and hours was an innocuous step, within the approach identified in London Borough of Waltham Forest v Omilaju [2005] IRLR 35. It could not be the final straw in a series of conduct amounting to breach of the implied term of trust and confidence. Any ambiguity could and should have been resolved by a request for clarification.

5. The assertion that the human-resources manager acted from an improper or collateral motive had no evidential foundation. The Tribunal was not required to permit a claim to proceed on an outcome which, on proper evaluation, was utterly far-fetched.

• Employment Appeal Tribunal: dismissed the claimant's appeal and upheld Employment Judge Glennie's strike-out of the unfair constructive-dismissal claim.
• Employment Tribunal: struck out the claim as having no reasonable prospect of success.