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Constructive Dismissal/Conclusions






  • CONTINUED    SECTIONS   56   -   62

  • O.   Conclusion

    It is submitted that the evidence points incontrovertibly towards a sustained campaign against A because of his H&S activities/disclosures. Particularly in the last 18 months of his employment a small number of senior employees (JT, KS, CE and SG) took every opportunity to make life difficult for A. It is submitted that R thereby fundamentally breached A's contract of employment.

    A Constructive Dismissal

    R apparently argues that A was disciplined for the manner in which he conducted himself rather than the fact of his performance of H&S functions/protected disclosures. A relies upon Shillito v. Van Leer (U.K.) Ltd38 and Goodwin v. Cabletel UK. Ltd39.
    By 22nd December 1999, A was on 3 final warnings and facing another disciplinary charge. He was aware that he was being victimised. He resigned on 27th December 1999 (p.993/4). It is submitted that A clearly resigned in response to R' s fundamental breach.

    The Respondent's Time Points

    It is incumbent upon the Tribunal to find a reason for the dismissal. A repeats paragraph 1 above: the constructive dismissal was for an automatically unfair reason alternatively unfair under s.98(4).
    It is submitted that R is unable to argue that A's application was out of time. If the Tribunal accedes to A's argument that he was constructively dismissed either for a H&S reason or for making a protected disclosure, then time runs from 27th December 1999 and the application was presented in time.
    Even if the Tribunal found that A was not constructively dismissed for either a H&S reason or for making a protected disclosure, the evidence demonstrates that there was a regime of victimisation in place that went beyond the final individual act. Furthermore, until the date of his resignation, A was under three final warnings and facing a further disciplinary charge. Reliance is placed on Mennell v. Newell & Wright [1997] IRLR 519. Accordingly, A would be entitled to bring a claim for detriment for H&S reasons/making protected disclosures.

    It is submitted that this case involves victimisation on a scandalous level forcing resignation of an extremely long-serving employee who held the best interests of railway users at his heart. Ultimately, it was his dedication and commitment to railway safety that brought about the victimisation. The Tribunal is respectfully invited to consider the question of costs40 if it finds itself in agreement with any of A's principal arguments.

    13th November 2001
    James Laddie
    Cloisters, Temple, London

    [James Laddie is now with Matrix chambers]
    38 (1997) IRLR 495.
    39 [1997] IRLR 665.
    40 R's defence of these proceedings has been unreasonable and misconceived (it is recognised that this argument depends upon the Tribunal's findings). Further, the Respondent has ignored two court orders for disclosure and further and better particulars.

    [A = Applicant = Mr L Holden
    R = Respondent = Connex South-Eastern
    KS = Mr Ken Skilton
    SG = Mr Steven Gollop
    CE = Mr Chris Edmunds
    JT = Mr John Thompson]

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