Mr T Farmer v Mid Cheshire Hospitals NHS Foundation Trust: 1303853/2023
EMPLOYMENT TRIBUNALS
Case No 1303853/2023
Between
Mr T FarmerClaimantMid Cheshire Hospitals NHS Foundation TrustRespondent
Before
Employment Judge BennettIn person for claimantMr Gibson (instructed by Hill Dickinson) for respondentDate 27 September 2024
JUDGMENT
[1]The complaint that the Claimant was unfairly (constructively) dismissed succeeds.[2]By agreement between the parties, the Respondent is to pay the Claimant the total sum of £39,819.45 net in respect of his unfair dismissal.[3]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply.
REASONS
[1]The Claimant worked for the Respondent, a Hospital Foundation Trust, from 7 November 2016. His employment terminated on 31 January 2023. Early conciliation commenced on 24 January 2024 and finished on 6 March 2024. The ET1 was received on 28 April 2024.
The Hearing
[2]The hearing began with a discussion with the parties about preliminary issues. The documents before me consisted of:a. An agreed bundle of 719 pages plus an additional single page comprising the Claimant’s training record which was handed up by the Respondent on the first morning and accepted into evidence;b. The Claimant’s Witness Statement bundle, which included 2 additional pages of email evidence that had been omitted from the agreed bundle;c. The Respondent’s witness statements.[3]The issues in the case were agreed to be as set out below. I stood the hearing down for an hour to allow reading time. Upon reconvening, the Respondent’s representative explained that the Respondent’s witness, Matron Sarah Dawson, who was due to participate remotely, wished to watch the Claimant’s evidence. Thereupon followed a delay as we waited for Matron Dawson to join. Due to her employer having firewalls in place this was not straightforward and so we took an early lunch break. Following the lunch break Matron Dawson had managed to join remotely and we were able to commence the witness evidence.[6]The Claimant put forward witness statements from three witnesses who were not present at the hearing due to ‘family and work commitments’. I explained to the Claimant that the weight I would be able to place on these statements would be reduced if the witnesses were not present to confirm the statements and be cross-examined and he indicated that he understood this.[7]I heard from witnesses in the following order. For the Claimant:a. Mr Timothy Farmer, the Claimant; For the Respondent:b. Ms Sarah Dawson, Matron and the Claimant’s line manager;c. Mrs Rachel Heath, Deputy Head of HR. Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017[8]The Claimant’s witness evidence was measured and clear. He took care to give what he viewed as accurate answers and although this resulted in him being unable or unwilling on some occasions to give a straight-forward yes/no answer it was my impression that his answers were truthful and precise.[9]Similarly I consider that both Matron Dawson and Mrs Heath gave their evidence to the best of their ability. I note that Matron Dawson indicated when she felt unable to answer a question because it was outside of her knowledge, or when she disagreed with a premise that was put to her by the Claimant. I consider that she gave her evidence truthfully. Mrs Heath likewise was clear when there were questions outside of her remit. Unfortunately her involvement in the events in question was very limited and so there were many areas in which she was unable to assist. When she was able to answer a question however I am satisfied that she did so truthfully and carefully.
List of Issues
[10]This was agreed to be as follows, with the following list comprising a summary of the issues which were set out more fully in the ET1 as indicated: Unfair dismissal I. Was the Claimant dismissed?a. Did the Respondent do the following things: i. require the Claimant to continue to work with the Complainant with no adequate steps being taken to protect the Claimant during the currency of the grievance investigation (para 7 ET1); ii. fail to action the Claimant’s request that either he or the Complainant be moved to another department (para 8 ET1); iii. fail to deal with the grievance investigation in a timely manner (para 9 ET1); iv. fail to provide support to the Claimant (or move him) following the conclusion of the investigation (para 10 ET1); v. by 2 August 2022 (6 weeks after the OH Report) fail to implement any of the recommended actions within the OH Report (para 14 ET1); vi. by the Claimant’s return to work on 19 September 2022 fail to implement any of the OH Report recommendations (para 15 ET1); vii. unilaterally decide to move the Claimant to work at the other end of the hospital in the Urology department (para 15 ET1); Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017 viii. require the Claimant to continue managing the Complainant (para 15 ET1); ix. have no end in sight/timescale for ultimate resolution after almost 2 years (para 15 ET1); x. appoint an external mediator rather than the Respondent addressing the issue directly with the Complainant (para 16 ET1); xi. take no steps to move the Complainant despite the investigation outcome and continued hostility from the Complainant (para 17 ET1);b. For each of the above, if proved, did that breach the implied term of trust and confidence? The Tribunal will need to decide whether the Respondent behaved, without reasonable or proper cause, in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent;c. Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation;d. Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that he chose to keep the contract alive even after the breach. II. The Respondent does not seek to argue that there was a potentially fair reason for dismissal in the event that the Claimant is found to have been dismissed.
Findings of fact
[11]Much of the factual background in this case was not in dispute. Where there was disagreement I made my decision on a balance of probabilities.[13]The Claimant worked for the Respondent as a Charge Nurse and Manager of the Ear, Nose and Throat (ENT) Outpatients department from 7 November 2016 until 31 January 2023. This was the Claimant’s first managerial role and the Respondent was aware of this. The number of people in the Claimant’s team varied but during the events in question it consisted of approximately 14 people comprising staff nurses and healthcare support workers.[14]The Claimant’s manager when he started was Matron Sue Sarson. Matron Sarah Dawson then took over this role in around mid-2020.[15]There were personnel issues in the ENT department which started before the Claimant’s arrival and continued once he had started his role there. It Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017 was the Claimant’s evidence, which I accept, that he made good progress in improving the management of the department from the time he started at the end of 2016. Despite this there remained problems by the time of Matron Dawson’s arrival. These problems were largely associated with 3 particular individuals namely Marie Peach, Imelda Slinger, and Cath Beard. HR department[16]The Respondent has an extensive HR function. Managers within the Respondent are encouraged and expected to consult HR regarding issues with staff. I make this finding based on the oral evidence of Matron Dawson and Rachel Heath.[17]Matron Dawson in her oral evidence stated “We are guided by HR, that’s who we go to for advice”. Mrs Heath spoke of “managers and HR working together” to decide whether disciplinary action may be taken in a particular case, and said “if a manager contacted us and a concern was raised we could advise what policy applied and how to proceed”. She also stated, in the course of an answer “…if concerns are raised with us by a manager that there has been bullying or harassment”.[18]I consider that this evidence accords with the Claimant’s account that he was doing his best to follow Trust policy by involving HR whenever there was an issue he was not comfortable with so that he could be advised as to the best way of dealing with it and he could handle the situation with HR’s support and approval. Behaviour of the 3 individuals[19]The Claimant regularly discussed with his HR advisor, Ruth Hough, and his Matron (first Sue Sarson and then Sarah Dawson) about the difficulties he was having in managing the 3 particular employees and their failure to comply with behavioural expectations. He reported any flare-ups and instances of aggression or harassment that he received from the 3 employees to HR, examples being the ‘Christmas Day’ emails which are attached to the Claimant’s witness statement.[20]It was the Claimant’s evidence that, in his regular meetings with Matron Sally Mann and Matron Sue Sarson in or around the end of 2019, he was told by Matron Sally Mann that he and Matron Sue Sarson needed to work together with HR to develop a ‘unified approach’ to address the staff disciplinary issues from the 3 individuals. The Claimant felt unable to deal with the issues himself because he considered that any disciplinary action by him towards the 3 individuals would be futile because experience told him it would simply result in them making counter-allegations against him.[21]The challenging behaviour from the 3 individuals continued and the Claimant continued to seek help in dealing with this from his Matrons and HR, but no substantial progress was being made. Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017 Investigation[22]In or around October 2020 Marie Peach raised a complaint to Matron Dawson in which she said that she had been bullied by the Claimant. There then followed several informal meetings, spread out over the next 4 months, between some or all of Matron Dawson, members of HR, Marie Peach and the Claimant for the purpose of informally discussing and resolving Marie Peach’s concerns. The relationship between Marie Peach and the Claimant appeared during this time to be improving and so a final meeting was scheduled for 1 March 2021. At this meeting Marie Peach unexpectedly brought a trade union representative with her and requested that a formal grievance process be initiated to look into her original allegations.[23]Matron Dawson notified the Claimant of the investigation by letter on 14 April 2021. She explained that she had appointed Kate Skinner, Lead Cancer Nurse, to be investigating officer and that she had asked Kate to provide a report of her findings by 26 May 2021.[24]In the event the Report was not provided by Kate to Matron Dawson until 19 November 2021. Matron Dawson then reviewed the Report and informed the Claimant on 10 December 2021 that the complaints made by Marie Peach were not upheld. This was confirmed to the Claimant in writing on 20 December 2021, some 9 months after Marie Peach initiated the grievance process and more than 12 months after Marie Peach first made her complaints about the Claimant to Matron Dawson.[25]The reasons given for the investigation and Report taking a long time, as set out in Matron Dawson’s witness statement, are firstly because of the number of people that Kate interviewed. 18 investigation interviews were conducted and 1 written statement was considered. The second reason was ‘due to the investigating officer’s clinical role as lead cancer nurse and dealing with the second wave of Covid unfortunately the investigation took a long time.’[26]I note that the Claimant was informed on 30 June 2021 that the investigation was to be expanded to cover a wider investigation into the working relationships within the ENT team. Matron Dawson in her oral evidence suggested that this was in order to ensure that the resulting Report was watertight. I understood this to mean that she wanted the Report to be as thorough as possible to protect the Claimant, so that action could be taken to deal with the problem of Marie Peach’s behaviour without the worry that she would be able to bring further complaints about the Claimant.[27]During the course of the investigation the Claimant and Marie Peach were required to continue working together as normal except that the Claimant was told that he should not have one-on-one contact with Marie Peach and should not carry out her appraisals. This proved enormously difficult for the Claimant as Marie Peach continued her vendetta against him and Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017 the Claimant felt unable to instigate disciplinary action against Marie Peach because of the ongoing grievance investigation.[28]The Claimant was not provided with an indication of how long the investigation would take to be completed. In his second investigation interview he asked how long the process would be and no indication could be given. On 11 November 2021 the Claimant emailed Matron Dawson and HR to notify them of a further incident involving Marie Peach in which she was publicly rude to him. He concluded the email by saying ‘Irrespective of any investigation outcome, please remove one of us from this department next week, I am not prepared to everyday have to negotiate such confrontation, such belligerent accusations in such a toxic environment’.[29]This request was not actioned and the Claimant was required to continue managing Marie Peach up until the report was provided on 10 December 2021 (and beyond). The Report[30]The findings of the investigation, as set out in the Report, were absolutely clear. All of the complaints against the Claimant were found to be without merit. The Claimant received excellent feedback from the majority of his staff. The only exceptions were the 3 individuals, who were universally amongst the rest of the staff considered to be troublesome, disruptive and worse.[31]It is accepted by all that several instances of potentially bullying/ harassing behaviour by the 3 individuals towards the Claimant were highlighted within the investigation documents and the Report.[32]In a letter that was sent to Marie Peach following the Report it acknowledges that ‘there were many comments raised by those interviewed which related to your behaviours and actions which were concerning to me.’ It goes on to state ‘whilst, at this time, I do not intend to take any formal action, I am concerned by the consistency of comments raised and have to advise you that this behaviour must stop’. A meeting was held with Marie Peach in February 2022 to discuss the concerns raised about her behaviour.[33]The Claimant did not at any point explicitly say that he wished to raise a grievance or invoke the Bullying and Harassment Policy in respect of Marie Peach’s behaviour and this was at no point suggested to him by HR or anyone else. However I find that the Claimant did set out his concerns in writing to his seniors/HR on multiple occasions including in the email of 10 November 2021 and when escalating the matter of the Christmas Day email. These were not recognised as grievances nor dealt with under the Respondent’s grievance procedure. Period following the Report outcome Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017[34]One of the conclusions of the Report was that neither party had expressly said that they felt they could not work with the other. The Claimant said, and I accept, that he had not had this question put to him. Nevertheless, on this basis the Report surmised that the working relationship may be able to be repaired and, immediately following the Report outcome, the Claimant and Marie Peach were expected to continue working together with no further input from anyone.[35]Following the Report, Marie Peach’s previous unprofessional behaviour continued. After the Report outcome had been notified to both parties but before Matron Dawson met with Marie Peach to discuss the concerns from the Report, Matron Dawson had to speak with Marie Peach regarding a separate incident in which Marie Peach referred to the Claimant using expletive language.[36]The Claimant went off sick with work-related stress in March 2022. Sickness absence[37]The Claimant’s sickness absence prompted HR, at the behest of Matron Dawson, to arrange internal mediation between the Claimant and Marie Peach. This did not take place until 4 May 2022. There was a further considerable delay after this episode of mediation during which there is no evidence to suggest anything was happening to try and address/progress the Claimant’s situation. Matron Dawson, who remained in contact with the Claimant while he was on sick leave, chased HR for updates regarding next steps.[38]Matron Dawson was a source of great support to the Claimant during this period. It is clear that she did her best to address his concerns, escalating them to HR or to her own manager at various times. She also chased for information and progress reports on his behalf. Matron Dawson kept in close contact with the Claimant throughout this period and my impression is that she helped him to feel that he was not in it alone but rather that this was a problem they were fighting together. I find, from the documentation that I have been referred to and from the oral evidence I have heard, that Matron Dawson, like the Claimant, relied heavily on HR and was led by them as to the best way to handle the situation. She said in her oral evidence “We are guided by HR, that’s who we go to for advice. .. I knew we would get there eventually. It is just how long it took.”[39]I find that Matron Dawson was similarly frustrated with the laboriousness of the process but felt that there was no alternative to continuing to push through, exhausting every process, until a conclusion was reached regardless of how long this may take.[40]The Claimant had two Occupational Health assessments during his sick leave. A report was prepared after each assessment. The first report (dated 22 June 2022) recommended that an individual stress risk assessment was carried out in order to, essentially, help the Claimant to avoid the sources of stress in the workplace. In a very similar vein, the Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017 O ccupational Health report also recommended that discussions take place between the Claimant, management and HR to address and attempt to resolve the specific issues in the workplace that were causing the Claimant’s symptoms. The Occupational Health report is very clear that resolution should be management-orientated.[41]The second Occupational Health report dated 2 August 2022 confirmed that the Claimant had not received any contact from HR since the recommendations of the previous Occupational Health report 6 weeks earlier. The second report essentially repeated the advice given previously, again recommending holding a meeting with the Claimant and HR, and carrying out a stress risk assessment.[42]I find that no stress risk assessment was carried out prior to the Claimant’s return. There is disagreement regarding whether this was postponed with the Claimant’s agreement or not. I find that the Claimant was at this point in a particularly vulnerable position having been off sick for several months and with no progress having been made regarding his potential return to ENT or the situation with Marie Peach and the others. Matron Dawson refers to his confidence needing to be built up. I find that it was the recommendation of HR that the stress risk assessment be delayed but that the Claimant felt he had no option but to agree to this at the time. I nonetheless find that the aim of the stress risk assessment, as stated by the Occupational Health report, was to address the workplace issues that the Claimant was struggling with in the ENT dept. It was clear that the purpose of the Occupational Health recommendations was to identify and resolve the very stresses that the Claimant had repeatedly discussed with his managers and HR. HR did not engage with this issue. Claimant’s return to work[43]The Claimant returned to work on 19 September 2022. I find that, in accordance with Matron Dawson’s email to HR on 30 June (page 480) he wanted to return to ENT but felt unable to do so given the lack of any plan for how he may deal with Marie Peach and the other difficult personalities. In circumstances where the Claimant was well enough to return to work, was shortly due to move onto reduced sick pay if he remained on leave, and had had no real engagement in terms of moving forwards with the managerial issues I find that he had little option but to return to the urology department as suggested by Matron Dawson. It was not suggested at any point that Marie Peach could be moved from ENT.[44]Despite Matron Dawson telling HR that the managers who were covering ENT in the Claimant’s absence were all having issues with the 3 individuals (page 475) and highlighting to HR that there needed to be a resolution of the management situation before the Claimant returned to work (page 480) no progress was made prior to his return.[45]A further external mediation session was proposed and, in the absence of any other proposals, agreed to by the Claimant. This took place on 17 Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017 October 2022. In the meantime the Claimant carried out work for ENT, who were struggling without a dedicated manager, from afar.[46]The external mediation confirmed that the relationship between the Claimant and Marie Peach had irretrievably broken down. I find that this ‘official’ confirmation from the mediator provided HR with the impetus to take the decision to move Marie Peach from the ENT department. Meeting of 3 November 2022[47]There is a lack of clarity about exactly what was said at this meeting. The Claimant does not recall the exact meeting but says he was never told with any certainty that Marie Peach was going to be moved to a different role. He said that many times his managers/HR would express a ‘hope’ of the same, but to his knowledge there was no definite plan with a real timeline for implementation.[48]Matron Dawson and Rachel Heath both believe that the Claimant was told at this meeting that Marie Peach was to be moved to a different role. However they also agreed that no timescale was set. Rachel Heath suggested that there was reference to ‘2 weeks’ but I find that this was not said in the meeting on 3 November 2022 as it is not mentioned in Matron Dawson’s witness statement nor Rachel Heath’s, and the Claimant certainly does not recall it. I find that it may have been suggested in Rachel Heath’s meeting with the Claimant in December after he resigned, as this accords with Rachel Heath’s oral evidence that she said she told him in this meeting that her understanding was that Marie Peach would be moved within 2 weeks and she asked him if he would stay if she could give him certainty as to when Marie Peach would be moved on.[49]I find that at the time of the 3 November 2022 meeting between Matron Dawson and the Claimant there was no clarity regarding either where Marie Peach would be moving to or when she would be moving. I base this finding on the following:a. At the time that Matron Dawson spoke to the Claimant on this day she had not yet spoken to MP;b. It was Rachel Heath’s evidence that there was a meeting between Marie Peach and Lucy from HR and Matron Dawson where “the idea was that [Marie Peach] was going to confirm the move, where she was going, dates etc but she came to the meeting and raised a Freedom to Speak Up concern”. This must have been a meeting after 3 November 2022, as the intention was to discuss with Marie Peach the details of the move not simply to notify her that she was going to be moving. This means that the details cannot have been determined prior to this, at 3 November 2022.c. Rachel Heath also said that, when she met with the Claimant after his resignation, “I didn’t give him a date she was moving but said my understanding was that she was going to move within the next two Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017 weeks. ” This meeting took place approximately a month after the 3 November 2022 meeting, and the details of Marie Peach’s move were still not confirmed, making it unlikely that they had been any clearer at the earlier date. Resignation letter[50]Marie Peach had not moved from her role by 1 December 2022. Following her being told on 3 November that she was to move roles she raised a Freedom to Speak Up concern, as noted above. This caused HR to pause in the implementation of Marie Peach’s move as there was concern that it was impacted by her Freedom to Speak Up request.[51]The Claimant was not contacted by HR, or anyone else, at this time. He was not told of the Freedom to Speak Up request nor given any information or explanation as to why Marie Peach had not moved.[52]On 1 December 2022 the Claimant submitted his letter of resignation to Matron Dawson.[53]Rachel Heath met with the Claimant later in the same week at which time she confirmed to the Claimant that Marie Peach would be moving out of ENT. There was still no firm date by which this would happen. Rachel Heath asked the Claimant if he would consider staying if she could guarantee that Marie Peach would be moved within 2 weeks. The Claimant indicated that even if Marie Peach left he would not be willing to stay on in ENT.[54]There then followed some discussion of potential alternative roles for the Claimant but he confirmed his resignation and his employment ended on 31 January 2023. The law and my conclusions[55]Section 95 (1) of the Employment Rights Act 1996 reads: …’ an employee is dismissed by his employer if… (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of his employer's conduct’...[56]Section 95 (1) was considered by the Court of Appeal in the case of Western Excavating V Sharp [1978] ICR 221 in which the principles of a constructive dismissal were set out. The key principles are that:a. There must be a fundamental breach of contract or a breach going to the root of the contract;b. The claimant must resign in response to the breach; andc. He or she must not delay or it will be said that he or she will have been taken to affirm the contract. Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017[57]In Malik v BCCI SA (in compulsory liquidation) [1997] ICR 606 it was held that contracts of employment contain the following implied term: “The employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee”[59]Any breach of this implied term will amount to a repudiation of the contract. The test of whether there has been a breach is objective. It was suggested on behalf of the Respondent that, as the Respondent clearly valued the Claimant as an employee, there could be no intention to dismiss him. However in Woods v WM Car Services (Peterborough) Ltd 1981 ICR 666, EAT Mr Justice Browne-Wilkinson confirmed: ‘To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract: the tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.’[60]Turning to the alleged breaches of contract by the Respondent. I have found that both before and during the grievance investigation there was a general awareness by HR and the Claimant’s managers of the unreasonableness of Marie Peach’s conduct towards the Claimant and the effect that this was having on the Claimant and the ENT department as a whole. However there was a widespread belief that nothing could be done other than to allow the various processes initiated by Marie Peach to be worked through.[61]It was repeatedly suggested by Mr Gibson in cross-examination that the Claimant should have ‘managed’ Marie Peach better, perhaps by instigating a formal disciplinary process. This suggestion does not engage with the reality of the situation at the time. The Claimant explained at length how he felt that he was stuck in a cycle where, when Marie Peach engaged in unacceptable/insubordinate behaviour and he tried to address this, she would retaliate by making accusations against him or invoking Trust procedures in what he saw as a malicious manner. In these circumstances I find that it was natural and indeed wise of the Claimant to turn to HR for help and support. Whilst it goes without saying that it is a manager’s job to manage the poor performance or behaviour of those he is managing, the situation is less straight-forward when such bad behaviour is deliberately targeted at the manager themselves. In such circumstances it would be undesirable – and maybe even improper - for the manager to proceed to carry out a disciplinary process unilaterally and without the support/approval of the next rung of management or HR. To proceed without the sign-off of these other parties would leave the manager unreasonably exposed.[62]Similarly, it was suggested on behalf of the Respondent that the Claimant should have addressed the instances of poor behaviour by Marie Peach Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017 and the others that were identified in the Report at the time they happened. I find that the Claimant did do this. He did it by contacting HR and implementing the advice they gave him. With hindsight it seems clear that a formal disciplinary process should have been instigated against Marie Peach. I have no doubt that the Claimant would have gladly done this if HR had indicated that it would support him in taking such a step. However this was never suggested to him by HR or anyone else. This is borne out by the conclusion of HR and the manager following the Investigation Report that there ‘was not enough information against Marie Peach to take formal action’.[63]The Report records instances of unacceptable behaviour by Marie Peach. Conversely it praises the Claimant for his conduct and management. The Report is effective in achieving its purpose of investigating and reaching a conclusion regarding Marie Peach’s allegations. However I am satisfied that, given the findings of the Report and the concerns that had been raised by the Claimant previously, a duty arose upon the Respondent to go further.[64]From an objective reading of the Report it is clear that the Claimant was being subjected to bullying and harassing behaviour from the three members of staff. It states inter alia:a. “All staff interviewed…felt that there are three members of the team who do not support the ethos of team working and are obstructive, rude and isolate themselves….” (page 100);b. “Some staff…do not feel Tim is fairly treated and many have discussed how they feel Tim is being bullied by Marie…” (page 100)c. “Marie…would openly discuss how readily she will raise her voice in the dept to Tim and others if she is in disagreement with a decision or situation.” (Page 101)[65]In addition, the wholesale dismissal of Marie Peach’s allegations and the findings that the Claimant was viewed, aside from by these 3 staff, as an excellent manager, should have and did highlight to all involved that the Claimant was the victim of a malicious campaign.[67]There is overwhelming evidence that the three employees, Marie Peach in particular, were an ongoing problem within the department. Their behaviour was routinely contrary to the Respondent’s particular values and, looked at objectively, unacceptable in a workplace. Their poor behaviour was not a result of a conflict of personalities with the Claimant. It was Matron Dawson’s evidence, both in cross-examination and in the contemporaneous documentation to HR, that Marie Peach’s behaviour did not improve at any time, during the Claimant’s absence or otherwise. I am satisfied that there was a complete unwillingness on the part of HR to recognise this unacceptable behaviour and to deal with it. By allowing several ‘trouble-makers’ to call the shots in this way the Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017 Respondent, via its HR function, was in fact failing in its duty to the Claimant.[68]The Claimant says in his witness statement that he was unaware that he could bring a grievance. I find that the Respondent’s failure to treat the Claimant’s concerns as a grievance, or at least to explore this as an option with the Claimant, or to take steps to mitigate the difficulties being experienced by the Claimant due to the ongoing situation whether by moving Marie Peach or otherwise, amounted to a breach of the implied duty of trust and confidence.[69]I reach this conclusion in respect of the period during the investigation when the Claimant made it clear that he was struggling, and the period after the Report was complete.[70]In terms of the length of time that the investigation took, the EAT in WA Goold (Pearmak) Ltd v McConnell and anor 1995 IRLR 516 held that an employer is under an implied duty to ‘reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have’ . This applies equally to the accused as to the accusee. I consider that the time taken for the investigation to be carried out and the Report to be produced was wholly unreasonable in the circumstances. Unjustifiable delay is evident throughout this case even taking into account that it was during a time of Covid and that many of those involved had significant demands on their time. I bear in mind that both the Claimant and Marie Peach were continuing to work in the same department for the duration of the investigation. As the Claimant has pointed out, everyone in the department was aware that something was going on because they were all interviewed. This was not a comfortable time for anyone, to put it mildly. In such circumstances it was essential that the grievance be dealt with swiftly. That it took as long as it did amounts to a breach of the implied term.[71]Further delay and inadequate communication characterised HR’s approach during the Claimant’s sickness absence. The failure to properly engage with the recommendations of Occupational Health in order to address the situation within the ENT department amounted to a further breach of the implied term.[72]I turn to the Claimant’s allegation that the Respondent unilaterally decided to move the Claimant to work at the other end of the hospital. Whilst I have found that the Claimant felt he had no option but to return to Urology at the time, I am not persuaded that this amounts to a breach of the implied term. It is true that it was the Respondent’s failure to grapple with the issues in ENT that meant the Claimant could not return there. But I conclude that the move to Urology was a temporary solution suggested by Matron Dawson with the Claimant’s best interests in mind, and I am satisfied that the Claimant agreed to this. In these circumstances it cannot be said that the Respondent unilaterally moved him there or that working there in itself amounted to a breach of his contract. Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017[73]I am satisfied that the mediation was a further process that HR instigated without properly listening or giving thought to what the Claimant was telling them. The Claimant agreed to the mediation but against a backdrop of failing to act on the Claimant’s concerns about Marie Peach I find that it was destined to be futile and amounted merely to a further hoop that the Claimant was required to jump through by HR in order to try and get to a position where effective action would be taken. Taking into account the very long background to the issues at the time the external mediation took place I am satisfied that, taken with the breaches that came before, this action by the Respondent amounted to a further breach of the implied term.[74]I do not consider that the Claimant’s resignation letter was inconsistent with his being constructively dismissed, as was suggested by the Respondent. It is overwhelmingly clear from the Claimant’s conduct during the hearing that he holds Matron Dawson in the highest regard and it is equally clear that Matron Dawson was supportive to the Claimant during his time in the role. She sympathised with him and understood the difficulties he faced as a result of the agenda that Marie Peach had against him, and the 3 difficult employees more generally. She shared his frustrations about the slowness of the process to resolve the issue. The Claimant’s gratitude to Matron Dawson does not detract from his lack of trust and confidence in the Respondent’s willingness or ability to deal with an intolerable situation.[75]At the time of the Claimant’s resignation there was still no clear timescale for the resolution of the situation with Marie Peach. Although the Claimant had been told that she was to be moved this was more than a month previously and nothing had happened. He had not been told by HR of any reason for the delay. He was unaware of Marie Peach’s Freedom to Speak Up concern. The Claimant had been given expressions of hope repeatedly over the last 2 years that the situation would be soon resolved. This never happened. Each time there was a further hoop to be jumped through. The Claimant had no confidence at all that the Respondent would follow through on its latest assurance and I find that he had very good reason for this lack of faith. There was a shocking failure by the Respondent to deal with this situation either promptly or robustly. I am satisfied that the Claimant is resigning as a result of the Respondent’s failures in this regard. Affirmation[76]In Kaur v Leeds Teaching Hospitals NHS Trust 2019 ICR 1 the Court of Appeal clarified that an employee who claims unfair constructive dismissal based on a continuing cumulative breach is entitled to rely on the totality of the employer’s acts notwithstanding a prior affirmation of the contract, provided that the later act — the last straw — forms part of the series. The effect of the final act is to revive the employee’s right to terminate his or her employment based on the totality of the employer’s conduct. Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017[77]Similar reasoning was adopted by Mr Justice Langstaff in the EAT case of Lochuack v London Borough of Sutton EAT 0197/14 where it was said: ‘The issue which needs to be addressed is whether there has been a repudiatory breach… If some of the alleged incidents are found not to have occurred, a tribunal must have regard to those which it has found did occur and ask objectively whether, in the particular context of the case, they amounted to a breach of contract and whether, in the particular context of the case, that breach was so serious as to be repudiatory. It may be that an employee puts up with a breach of contract which is, properly analysed, repudiatory because he would prefer to retain his employment rather than be cast adrift on the labour market. In such a case he might very well spend a period of time without taking any action, or actually take positive steps which would indicate that he wished the contract to continue notwithstanding the breaches which had occurred. But they would remain breaches. A failure to elect to treat a contract as repudiated does not waive such breaches… If a later incident then occurs which adds something to the totality of what has gone before, and in effect resuscitates the past, then the tribunal may assess, having regard to all that has happened in the meantime — both favourable to the employer and unfavourable to him — whether there is or has been a repudiatory breach which the employee is now entitled to accept. If so, and if the employee resigns at least partly for that reason, it will find in that case that there has been a constructive dismissal.’[78]I consider that it is exactly such a situation here. The Claimant put up with far more than an average employee would have put up with. On multiple successive occasions the Respondent failed to deal with the Claimant’s concerns, with no good reason. Specific breaches of the implied term of mutual trust and confidence occurred as set out at I.a(i)-(vi) and I.a(viii)-(xi) of the List of Issues above. The Claimant did not accept any repudiatory breaches for a very long time - he continued working under his contract and continued engaging with the process. In legal terms, he did affirm the contract. However by December 2022 it became too much for the Claimant. The degree of delay and failure of the Respondent to either move Marie Peach or set out a realistic timescale for this within a reasonable period of the assurance that was given on 2 November 2022 had the effect of reviving the earlier breaches and the Claimant was entitled to treat himself as dismissed.[79]Although it was not explicitly put to me I have considered the effect, if any, of Rachel Heath’s assurance to the Claimant after his resignation regarding Marie Peach’s imminent move. In Bournemouth University Higher Education Corporation v Buckland 2010 ICR 908 the Court of Appeal confirmed that it is not possible for subsequent conduct to remedy what was a breach of the implied term of trust and confidence. I am satisfied that even if this were not the case the general delay and handling of the process by the Respondent was such that the Claimant could have no faith in his problems with the other 2 individuals in the ENT department Case No:1303853/2023 10.8 Reasons – rule 62(3) March 2017 being addressed even if Marie Peach were moved, and this would also have given rise to a breach of the implied term such that he was entitled to walk away and treat the contract as having been brought to an end.[80]This was the end of my decision as to liability. I invited the parties to prepare submissions regarding the ACAS Code for the remedy hearing the following day. In the event the parties arrived at an agreed figure of compensation at the preliminary stage of the remedy hearing and prior to evidence and submissions. The Claimant confirmed that he understood that any figure awarded by the tribunal following a full remedy hearing may be significantly more or less than the agreed sum and he explained that he preferred to leave with an outcome that had been agreed by the Respondent rather than one which had been imposed upon it.[81]For the above reasons the Claimant’s claim of constructive unfair dismissal succeeds and the Respondent is ordered to pay the Claimant compensation in the sum of £39,819.45 net.