The claimant was employed as a lorry driver. Following a period of some months’ absence signed off by his GP, he was referred to the respondent’s occupational health (OH) team. The claimant then 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 the illness to the DVLA. The claimant declined to do so, (although he later indicated that he would be willing to sign an amended version). In response, the respondent stopped the claimant’s pay as they considered him to be absent without good cause, and warned that he might face disciplinary action. Following further exchanges, the claimant resigned and issued these proceedings. The employment tribunal found that the claimant was constructively unfairly dismissed: the respondent was in breach of an express term by stopping his wages and of the implied duty of trust and confidence. However, it also found there was a 25% chance that the claimant’s employment would have ended within six months of when it did end.

Before the EAT, the respondent argued seven grounds, including one that argued that the claimant had made himself available only for local deliveries on reduced hours and thus offering only part performance. HHJ Auerbach at [64] dismisses that ground as the ET

“was not wrong to take into account, and weigh up, what it recorded the claimant had said to it, in considering the chance that he might have returned in the relief driver role, had the respondent not acted in fundamental breach, and had it also refused his request to be permitted to return as a local driver."

He also goes on to find the tribunal had not erred in finding the respondent was in breach of the express terms of the contract by stopping the claimant’s pay and dismissed the other grounds of appeal.