The Claimant was employed as a lorry driver. Following a period of some months, during which he was initially signed unfit by his GP, subject to medical investigations, and referred to the Respondent’s occupational health (OH) team, the Claimant provided evidence that the DVLA now considered him fit to drive and, in light of that, so did OH. At a return to work meeting the respondent asked the claimant to sign a letter confirming that he had reported to the DVLA the “sudden dizziness experienced in November 2018”, which it understood had led to the start of the absence and medical investigations. The Claimant declined to do so, although in further correspondence he indicated that he would be willing to sign an amended, accurate version. The Respondent stopped the Claimant’s pay, indicated that it considered him to be absent without good cause, and warned him that he might face disciplinary action. Following further exchanges, the Claimant resigned. He won his claims at the ET, the ET finding that he had been constructively unfairly dismissed, as the Respondent was in breach of an express term by stopping his wages, and was also in breach of the implied duty of trust and confidence. It went on to find, however, that there was a 25% chance that the Claimant’s employment would have ended within six months of when it did end, without fault on the part of the Respondent. The Respondent appealed.

The EAT dismissed the appeal. The ET had not erred by failing to find that the Claimant was not ready, willing and able to return to his contracted role of relief driver, because he had asked to return as a local driver. It had not found that the Claimant had refused to return as a relief driver, if his preference were not granted. Nor did the ET err in finding that the Respondent was in breach of the express terms of the Claimant’s contract by stopping his pay; nor did it err in finding that it was in breach of the implied duty of trust and confidence, by applying the wrong legal test. The ET was also not wrong to reject the Respondent’s case that the factual reason for dismissal did not amount to capability or some other substantial fair reason. The issue of the Claimant’s capability provided the context for the Respondent’s conduct which caused him to resign, but not the reason for that conduct. Finally, the ET did not err by failing to find that it was 100% certain that the Claimant would never have returned to his contracted role. The Respondent had not shown that a statement by the ET in its decision, about what the Claimant had said in evidence on that point, was plainly wrong.