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

The Employment Appeal Tribunal dismissed the respondent employer's appeal against an employment tribunal decision that the claimant had been constructively unfairly dismissed and had suffered an unlawful deduction from wages. The tribunal had found that the employer wrongfully stopped the claimant's pay and breached the implied duty of trust and confidence by refusing to allow his return to work unless he signed a statement about notifying the DVLA. The EAT upheld the tribunal's factual findings and legal conclusions, including that the claimant had been fit to drive according to the DVLA and occupational health, that the employer's late-imposed requirement to sign the letter was inappropriate, and that the combined acts of withholding pay, refusing to allow return and threatening disciplinary action were repudiatory.

The tribunal also made a Polkey finding that there was a 25% chance the claimant's employment would have ended within six months absent the employer's unfair conduct; the EAT did not disturb that probabilistic conclusion. Key legal considerations included section 95(1)(c) and section 98 of the Employment Rights Act 1996, principles on constructive dismissal, the implied term of trust and confidence, and the test for entitlement to wages when an employee is "ready, willing and able" to work.

Background and parties: The claimant, employed from April 2015 as a relief lorry driver, was absent from November 2018 following episodes of dizziness and medical investigation. The respondent is a supplier of building materials. The claimant was referred to occupational health, obtained DVLA renewal of his licence and received occupational health confirmation in August 2019 that he was fit to resume driving.

Procedural posture and nature of the claim: After a reserved merits hearing the employment tribunal upheld claims of constructive unfair dismissal and unlawful deduction from wages (for the period from 23 August 2019 until resignation). The respondent appealed to the Employment Appeal Tribunal on multiple grounds; the EAT heard the appeal and dismissed it.

Facts and key events: Following medical investigations, the claimant informed the DVLA of his symptoms and the DVLA issued a licence renewal. At a 9 September 2019 return-to-work meeting the employer asked the claimant to sign a draft letter confirming he had reported a "sudden dizziness experienced in November 2018". The claimant declined to sign the draft, offering to sign an amended accurate statement. The employer then stopped his pay, treated him as absent without authorisation and warned of possible disciplinary action. The claimant resigned on 9 October 2019 and amended his tribunal claim accordingly.

Issues before the EAT: (i) whether the tribunal erred in finding the claimant was "ready, willing and able" to return to work and thus entitled to pay; (ii) whether contractual clauses or managerial discretions justified the employer's conduct (including reliance on clause 10(b) of the Pay and Conditions Agreement and authorities such as Braganza and Agarwal); (iii) whether there was a breach of the implied duty of trust and confidence; (iv) whether the true reason for dismissal was capability or some other substantial reason; and (v) the correctness of the tribunal's Polkey assessment of prospects absent unfair conduct.

Court's reasoning: The EAT held that the tribunal had correctly posed and answered the "ready, willing and able" question and had not been diverted by the claimant's preference to return as a local driver. The tribunal's interpretation of clause 10(b) as concerned with workplace "fitness of conditions" rather than personal medical fitness was correct. The EAT rejected the argument that contractual preconditions or a managerial deeming clause authorised withholding pay in circumstances where the employee had medical confirmation and DVLA clearance. On the implied term, the EAT accepted the tribunal's assessment that the combined conduct (withholding pay, refusal to allow return on the imposed terms and threats of disciplinary action) lacked reasonable and proper cause. The tribunal was also correct to treat fitness concerns as contextual rather than the operative reason for the repudiatory conduct. Finally, the EAT found no basis to disturb the tribunal's 25% Polkey probability assessment.

Appeal dismissed. The Employment Appeal Tribunal held that the employment tribunal did not err in finding constructive unfair dismissal and an unlawful deduction from wages. The EAT upheld the tribunal's factual findings that the claimant had DVLA and occupational health support to return, that the employer's insistence upon the unsigned letter and subsequent withholding of pay and threats amounted to repudiatory conduct, and that a 25% chance existed that the employment would have ended within six months absent the respondent's breaches.

Appeal from an employment tribunal (reserved judgment after a full merits hearing by EJ Hargrove, Ms W Richards Wood and Mrs M Rowntree) which found constructive unfair dismissal and unlawful deduction from wages. EAT dismissed the employer's appeal. Neutral citation: [2022] EAT 98.