HANSON QUARRY PRODUCTS EUROPE LIMITED OF HANSON HOUSE v MR PETER LUCK

An employee who is medically cleared and offers to return to work is not rendered unwilling to perform the contractual role merely by expressing a preference for a different role. An employer may withhold wages only where the contract permits it or the employee is not ready, willing and able to work.

A contractual provision concerning the fitness of working conditions does not, on its ordinary meaning, confer a final power to determine an employee’s medical fitness. A requirement for co-operation in medical assessment does not necessarily make payment conditional on compliance.

In constructive dismissal, the relevant reason is the reason for the employer’s repudiatory conduct. Medical capability may provide context, but need not be the reason for dismissal.

The claimant, a relief HGV driver, was absent after episodes of suspected pre-syncope and related medical investigations. The DVLA later confirmed that he met the medical standards for safe driving, and occupational health advised that he was fit to resume normal duties.

At a return-to-work meeting, the respondent asked him to sign a statement that he had reported sudden dizziness in November 2018 to the DVLA. He declined to sign that wording, but said he would sign an accurate amended version. The respondent stopped his pay, treated him as absent without good reason and threatened disciplinary action. He resigned.

The Employment Tribunal upheld complaints of constructive unfair dismissal and unlawful deduction from wages, subject to a 25% Polkey reduction. The respondent appealed on readiness and willingness, contractual entitlement to withhold pay, trust and confidence, the reason for dismissal, and the Polkey assessment.

1. Appeal dismissed. The tribunal was entitled to find that the claimant was ready, willing and able to return to work by 9 September 2019. His preference and request to return as a local driver did not establish that he refused, or would refuse, to return to his contractual relief-driver role if that request were refused.

2. The respondent was therefore not entitled to withhold pay on the basis that the claimant was unwilling to perform his contractual role. The tribunal did not apply the wrong test merely because it also referred to his willingness to work as a local driver.

3. Clause 10(b) of the Pay and Conditions Agreement, concerning management’s decision regarding the fitness of conditions for working, concerned the suitability of workplace conditions. It did not concern an employee’s medical fitness. The other contractual provisions relied on did not authorise making signature of the disputed statement a condition of return to work or payment.

4. The tribunal was entitled to find that stopping wages breached an express contractual term. That breach was fundamental. It was also entitled to find that the combined stoppage of wages, refusal to permit return to work, and threat of disciplinary action breached the implied duty of trust and confidence. The latter finding was not necessary to sustain the constructive-dismissal conclusion, but ground 3 also failed.

5. For the purposes of Employment Rights Act 1996, the reason for constructive dismissal was the reason for the repudiatory conduct which caused the resignation. Concerns about fitness to drive formed the context for the respondent’s conduct. The factual reason found by the tribunal was its reaction to the claimant’s response to the requested statement, not capability or some other substantial reason.

6. The tribunal was entitled to assess the counterfactual Polkey question from all the evidence. The respondent had not shown that the tribunal’s finding of a 25% chance that employment would otherwise have ended within six months was unsupported or perverse.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal’s findings of constructive unfair dismissal and unlawful deduction from wages, including its 25% Polkey assessment.
• Employment Tribunal: Upheld the claimant’s complaints of constructive unfair dismissal and unlawful deduction from wages. It found a 25% chance that the employment would have ended within six months absent the respondent’s unfair conduct.