Mrs C Howlett v Primrose Home Help Ltd: 1401053/2024

EMPLOYMENT TRIBUNALS

Case No 1401053/2024

Between

Mrs Caroline HowlettClaimant

Primrose Home Help LimitedRespondent

Before

Employment Judge Beever

In person for claimant

Date 10 October 2025

JUDGMENT

[1]The Claimant’s claim of unfair constructive dismissal contrary to section 94 of the Employment Rights Act 1996 is not well founded and is dismissed.

REASONS

[1]The claimant appeared in person and the respondent was represented by a lay employee of the respondent. The matter was heard by CVP on 9 September 2025. The parties concluded their cases and the Tribunal reached a decision and gave an oral reasoned judgment. The Claimant’s claim was dismissed.

[2]No request for written reasons was made at the hearing. The written judgment dismissing the claim was sent to the parties on 3 November 2025. By a request dated 5 November 2025 the Claimant requested written reasons. These are the written reasons.

The Issues

[3]By a claim form dated 20 April 2024, the claimant brought claims of unfair dismissal and unlawful age discrimination. The claim of unlawful age discrimination was subsequently dismissed by EJ Midgeley on its withdrawal by the claimant.

[4]The issues that the Tribunal was required to determine were set out in the Case Management Order of EJ Midgeley of 20 February 2025. These were discussed and explained to the parties that the outset of the final hearing and it was reaffirmed that these were the relevant questions that the Tribunal would answer in reaching its decision.

[5]The parties agreed that this was a claim of constructive unfair dismissal and that the claimant was relying on a breach of the implied term of trust and confidence; the final straw for the claimant being a meeting with Mrs Moulding where Mrs Moulding is alleged to have asked the claimant whether she wanted two weeks’ notice or to leave then and there.

[6]The questions for the Tribunal to determine were therefore: 1. Constructive unfair dismissal1.1 The Claimant claims that the Respondent acted in fundamental breach of contract in respect of the implied term of the contract relating to mutual trust and confidence. The breaches were as follows;1.1.1 Between October 2023 and January 2024, the respondent did not offer of the claimant hours of work which were at the level of those specified in her contract

1.1.2 Between October 2023 and January 2024, the respondent did not implement an agreed change to the claimant’s days of work

1.1.3 At a meeting on 16 January 2024 The respondent did not review the claimant’s hours, but instead at the end of the meeting Mrs Moulding asked the claimant whether she wanted two weeks’ notice or to leave then and there. (The last of those breaches was said to have been the ‘last straw’ in series of breaches, as the concept is recognised in law).

1.2 The Tribunal will need to decide:1.2.1 Whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and

1.2.2 Whether it had reasonable and proper cause for doing so.

1.2.3 (If the breach is not of the implied term of mutual trust and confidence) The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

1.3 Did the Claimant resign because of the breach? The Tribunal will need to decide whether the breach of contract was a reason for the claimant’s resignation.

1.4 Did the Claimant wait too long before resigning and affirm the contract?

1.5 in the event that there was a constructive dismissal, was it otherwise fair within the meaning of s. 98(4) of the Act?

The Facts

[7]The Tribunal heard evidence from the claimant and also Mrs Moulding and Mrs Cole for the respondent. Each gave a witness statement and was cross-examined. There was a bundle of 72 pages.

[8]These are the facts as the Tribunal has found them on a balance of probabilities and as far as is necessary for the purpose of determining the claim.8.1 The claimant worked as a carer home help for the respondent since 21 August 2019 under the terms of a contract that provided for her to work 8hr shifts on 2 days per week, Tuesday and Thursday.

8.2 On 24 October 2023, Mrs Cole, an employee responsible for rota and shift rostering, wrote to the claimant to say that she was “struggling rostering in your calls” [53]. This meant that Mrs Coles was finding it difficult to meet the claimant’s shift hours. This was expressed to be because of the claimant, “not wanting to go to BB and SR’s longer visit”. This is a reference to the claimant not attending to service users BB (on account of the complex level of care that BB needed, and BB needing several hours of the claimant’s shift) and SR (on account of it needing to be a longer visit which the claimant was hindered in doing because of a physical injury to the claimant).

8.3 Mrs Cole offered a solution: she proposed looking at Wednesdays as an alternative and also that there would be a further discussion in a forthcoming review meeting. Mrs Cole told the Tribunal that a Wednesday shift was implemented for a period – of a least a month or so. The claimant also accepted that over that period she did not visit BB albeit that by January 2024 she was visiting BB again.

8.4 The task of operating the rota was a dynamic one: Mrs Cole stated that at any one time it was a case of juggling users’ requirements and available staff. Staff illness and absence was a constant, and Mrs Coles did generally put out on WhatsApp seeking volunteers for extra shifts. The claimant accepted in evidence that this was the case. Mrs Cole also said that for example, in early January 2024, the claimant had a full Tuesday and Thursday shift as well as a Friday shift. The claimant did not dispute this, but could not recall.

8.5 By the end of 2023, the respondent had developed concerns about the claimant’s performance and Mrs Moulding, the owner of the respondent, planned to undertake a performance review with the claimant.

8.6 In the meantime, an urgent situation arose.

8.7 On 5 January 2024, the claimant emailed Mrs Cole [67]. It related to a service user, KH, and her medication. In the email, the claimant referenced putting the medication in KH’s mouth and that, “she gritted her teeth each time”. The Tribunal makes no finding of fact as to exactly what happened: for the purpose of these proceedings, it is sufficient to note what the claimant said had happened at the time.

8.8 The respondent viewed this disclosure as a serious matter. Mrs Moulding’s witness statement says that it was, “very concerning” as it appeared that, “one of our staff had force fed a client medication. We decided a meeting needed to take place with the claimant ASAP”. Mrs Moulding been absent for a significant time on sickness absence and had returned into a backoffice role but that this emerging incident was viewed as potentially serious enough that Mrs Moulding took up an active role in this respect.

8.9 A meeting took place on 16 January 2024. The Tribunal accepted Mrs Moulding’s characterisation of this meeting being the “planned review meeting but brought forward in the light of the urgency”.

8.10 Prior to the meeting, Mrs Moulding was provided by Mrs Coles with a list of clients that the claimant did not or could not attend to. Mrs Moulding sought to provide reflective and genuine evidence to the Tribunal. She accepted that at that meeting she was not fully “up to date” given her prior sickness absence. This manifested itself for example in Mrs Moulding mistakenly suggesting to the claimant that the claimant had had a car accident in connection with one service user visit.

8.11 Mrs Moulding went into that meeting on 16 January 2024 intending to discuss 2 matters with the claimant:

(i) the difficulty that the respondent had in placing clients with the claimant, examples of which can be evidenced by the list from Mrs Coles and also the claimant’s own desire to avoid driving in the dark afternoon/evenings, and

(ii) the urgent situation regarding KH. In the latter regard, the Tribunal accepted Mrs Moulding’s evidence that she said to the claimant (who did not recall) that the situation regarding KH may need to be referred to the Care Quality Commission (CQC).

8.12 Mrs Moulding accepted that she anticipated that it was going to be a difficult meeting. Despite that, in evidence, Mrs Moulding also accepted with real frankness that she was “not prepared” and that she had not “planned it” and that she was “rusty” and “did make mistakes”. Mrs Moulding found the meeting to be an emotional one: this was at least in part because of her own health situation, but also because (as the Tribunal finds) Mrs Moulding was fond of the claimant, that “the claimant was a good employee” and “we liked you”. This was evidence that was consistent with the claimant’s own evidence that the meeting was in fact a “nice” meeting between them.

8.13 The Tribunal finds that Mrs Moulding did describe the KH incident to the claimant in the meeting (this is because it was serious to Mrs Moulding and she was most unlikely to ignore not least because of the CQC implications and it is highly likely that she would bring it up and discuss it). The claimant does not have a recollection of it.

8.14 The Tribunal accepted the fuller recollection of Mrs Moulding. Mrs Moulding did say to the claimant words to the effect that she might need to report the incident to CQC. In response, the Tribunal finds that the claimant did acknowledge to Mrs Moulding that she (the claimant) had “got it wrong”. The claimant described herself as a “silly-billy”. The claimant disputed that but the Tribunal accepted Mrs Moulding’s clearer (and reflective) evidence.

8.15 Mrs Moulding recounts that the claimant said to her, “I think it’s my time; Nick [the claimant’s husband] has been telling me to give it up for a long time; I will just go quietly”. Specifically, in answer to a question from Mrs Moulding in the meeting which was “Q: what shall I tell staff”, the answer was “A: we can agree that you just tell them I retired”.

8.16 Mrs Moulding recalls that it was emotional and the claimant and Mrs Moulding then hugged.

8.17 The claimant recounts that at the meeting there was a list of clients in front of Mrs Moulding, but that she was not shown any names on the list. Of the names that she managed to see on the list, she did not recall any apart from one. The claimant recounts that her “hours” were not talked about at all, but the claimant in cross examination was able to recall that the “list” was talked about and the (mistaken) allegation about a car accident was also discussed. The claimant denies any discussion about CQC.

8.18 The claimant recounts that she was unexpectedly asked in the meeting whether she “would be giving 2 weeks’ notice or leaving immediately” to which the claimant said that she would go immediately and that it was after that decision was taken that she recalled that she then reasoned to Mrs Moulding that “Nick had wanted her to go”.

8.19 The Tribunal has taken full account of the claimant’s differing recollection of the meeting. Mrs Moulding impressed the Tribunal as a witness who not only had a clearer and more consistent recollection but also was a witness that was prepared to acknowledge her mistakes and shortcomings. Her evidence that she found the meeting emotional, was fond of the claimant and hugged her is at odds with the claimant’s recollection of an ultimatum to leave. The claimant’s evidence is unclear in material respects: she does not recollect any discussion about CQC or of any names on the list and is not able to provide a compelling narrative about Mrs Moulding’s otherwise unexplained ultimatum that was unexpectedly delivered.

8.20 The Tribunal does not find that Mrs Moulding gave the claimant any indication that she needed to leave, whether in two weeks or immediately or otherwise. It was the claimant that raised the question of leaving, and it was Mrs Moulding who asked her when she might leave. It was the claimant who said she would leave and who said that her husband had wanted her to go for some time.

8.21 Following the meeting, Mrs Moulding came into the office. Mrs Cole told the Tribunal that there was an immediate conversation between Mrs Moulding and Mrs Cole in which Mrs Moulding told Mrs Cole that she was in fact “relieved” and that the claimant had after all made the meeting easy as she had resigned. This evidence is contemporaneous corroboration of Mrs Moulding’s version of events.

The Law

[9]The law relating to constructive dismissal is well settled. See Western Excavating v Sharp. In order for a claimant to succeed, it must be shown:9.1 That there was a breach of contract so serious as to entitle an employee to resign from his employment;

9.2 that resigning was (at least in part – see Wright v North Ayrshire

[2014] IRLR 4

- in response to the breach of contract; and

9.3 that in resigning the claimant did not delay or act otherwise so as to affirm the breach of contract.

[10]A claimant who relies on a breach of the implied term of trust and confidence needs to establish conduct which amounts to a breach of an obligation that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Malik v BCCI

[1997] IRLR 462

[11]The focus is on the conduct of the employer. Subjective intention is irrelevant: Leeds Dental Team Ltd v Rose

[2014] IRLR 8

; it is for the tribunal to assess whether the employer’s acts or omissions, when considered objectively, amount to conduct in breach of the term of trust and confidence. That said, there is no rule as to what might or might not be a breach: in Leeds Dental, “the circumstances are so infinitely various that there can be and is no rule of law saying what circumstances justify and what do not”, and that “in other words, it is a highly context-specific question”.

[12]The “last straw” need not be of itself a breach of contract but must when viewed in conjunction with other facts be considered sufficient to warrant the resignation to be treated as a constructive dismissal. Such a last straw might not always be unreasonable but it must be an act in a series whose cumulative effect was to amount to a breach of the implied term and the act must contribute something to the breach: Omilaju v Waltham Forest

[2004] EWCA Civ 1493

. Discussion and Conclusions

[13]This claim is based on three allegations, as set out in the issues above. The Tribunal addresses each in turn. Between October 2023 and January 2024, the respondent did not offer of the claimant hours of work which were at the level of those specified in her contract

[14]The nature of the claimant’s role reflected the fact that the needs of the respondent and of its service users was dynamic and changing. The claimant did not work with BB. BB was at times in need of care that occupied several hours of the claimant’s day. The claimant was offered the potential (and in some limited respect at least actually implemented) of an alternative day shift. The claimant was offered from time to time the opportunity for other shifts and/or overtime shifts via WhatsApp communications from Mrs Cole. These features indicate that from time to time the claimant’s hours may have been liable to have fallen below the specified contract hours.

[15]Equally, the Tribunal also finds that the situation was fluid. It changed frequently and was liable to change from week to week. In January 2024, for example, the claimant’s work is likely to have exceeded her contract hours albeit that the Tribunal took into account that it has not been provided with any rota or specific spreadsheet of hours.

[16]This changing picture was the subject of at least 2 company-wide update emails; nor was it the subject of any grievance or complaint of the claimant prior to termination of her employment.

[17]The frequency with which the claimant’s hours may have fallen below the specified hours cannot be pinpointed or identified. To the extent that in any given week the claimant’s hours did fall below the specified hours, the Tribunal finds that the respondent sought to offer the claimant alternative opportunity to make up the hours and from time to time the claimant did in fact work or had the opportunity to work in excess of her specified hours.

[18]Taken as a whole, the Tribunal is not persuaded that the claimant was offered hours that were less than specified and to the extent that she was, there was an effective opportunity to the claimant to take up alternative hours. The claimant did not complain let alone raise a grievance. Between October 2023 and January 2024, the respondent did not implement an agreed change to the claimant’s days of work

[19]The suggestion of implementing a change to the claimant’s day of work came from the respondent. It was introduced as a supportive measure towards the claimant and was a way to reduce the impact on the claimant arising from the fact, as indicated in Mrs Cole’s email, that the respondent was struggling to meet the claimant’s hours.

[20]The respondent implemented a change to Wednesday for at least a period of time in late 2023. The precise period is unknown; it is likely to have been at least one month according to Mrs Cole’s recollection. Its purpose was evidently to support the claimant and bridge a gap in her working hours. As a suggestion emanating from the respondent, the claimant co-operated with it.

[21]It is inaccurate to characterise it as an “agreed change”. It falls far short of an agreed change that is capable of being described or interpreted as a change in the claimant’s contract or as an event that is capable of or likely to be a breach of contract. At a meeting on 16 January 2024 The respondent did not review the claimant’s hours, but instead at the end of the meeting Mrs Moulding asked the claimant whether she wanted two weeks’ notice or to leave then and there.

[22]The Tribunal finds that at the meeting on 16 January 2024, Mrs Moulding did review the claimant’s hours, and more particularly reasons for the respondent’s difficulty in meeting those hours. This was after all the purpose of the “list” of clients and it was also the underlying purpose of discussing (mistakenly) the car accident. The Tribunal finds that the claimant has failed to recollect a material part of what happened at the meeting.

[23]The claimant’s recollection is of a discussion about a “list” and a discussion including KH albeit not one in which CQC was mentioned. The claimant’s recollection is that unexpectedly Mrs Moulding informed the claimant that she was to leave and asking whether she was going to give 2 weeks’ notice or leave immediately. On any view of this recollection, this appears to have come out of the blue and with little or no context. The claimant could not recall the list of names or any discussion about hours. The claimant was unable to draw a link between what was discussed and the alleged instruction to leave except to suppose that it must have been intended by Mrs Moulding before the meeting.

[24]The respondent’s version is that the meeting was urgently called as a response to the KH situation, in which the claimant had responded and acknowledged that she had been a “silly billy” and that she had commented that it was “time to go” referring also to her husband. The claimant did not dispute she made reference to her husband’s thoughts on the matter.

[25]The Tribunal is persuaded by Mrs Moulding’s evidence. She gave evidence with great care and perspective, acknowledging frankly that she had been “not prepared” and had been “rusty”. She was a witness who provided a clear account of events and was plainly capable of reflecting and acknowledging different points of view. Secondly, the Tribunal accepted Mrs Moulding’s evidence that she had had a good relationship with the claimant, saw her as a friend, and considered that the claimant was a “good worker”. All of that is inconsistent with the assertion that she would in effect impose an ultimatum of “two weeks’ notice or immediate” termination.

[26]The Tribunal does not find that Mrs Moulding had an intention prior to going into the meeting to discuss let alone require the claimant to leave her employment. The meeting had become urgent. Mrs Moulding was “rusty” and a discussion ensued in which Mrs Moulding did not appreciate or plan for what might happen next. Mrs Moulding however did not, unexpectedly or otherwise, offer the claimant a choice of leaving in two weeks or immediately. What happened was that the claimant made a decision to leave. It was a response to a difficult situation emerging; her acknowledged reference to her husband’s thoughts is entirely consistent with that. Mrs Cole’s evidence of what was said immediately after the meeting is also consistent with Mrs Moulding’s version.

[27]The claimant’s central allegation is not made out. Mrs Moulding did review the claimant’s hours and Mrs Moulding did not require the claimant to leave. The claimant made the decision to leave, and it entirely her own decision. To the extent that Mrs Moulding said anything about “when” that might be, it was entirely in the context of it being the claimant’s decision. Mrs Moulding was concerned enough to want to know what the claimant wanted the staff to be told. Mrs Moulding was greatly upset by the course of the meeting as is evident from her conversation immediately afterwards with Mrs Cole.

[28]Turning to its conclusions, the Tribunal is not satisfied that the respondent has in any material respect acted in breach of contract. To the extent that a breach has occurred, in all the circumstances it does not amount to a repudiatory breach entitling the claimant to resign her employment in consequence.

[29]Whether viewed individually or when viewed as a whole, the tribunal finds that the management by the respondent of the claimant’s shifts and hours and the meeting of 16 January 2024 taken together or separately do not evidence any conduct on the part of Mrs Moulding or Mrs Cole that contribute to a finding that the respondent was in breach of the implied term of trust and confidence. Its actions were with reasonable cause.

[30]The events on the meeting on 16 January 2024 were entirely “innocuous” acts that do not amount to a “last straw”. Mrs Moulding did not refer to the claimant leaving her employment. It was the claimant’s decision to leave. The claimant had worked throughout to 16 January 2024 without complaint about her working hours. The management of the claimant’s hours did not form any operative part of the claimant’s decision to resign. The operative reasons for the claimant’s decision tro resign were the challenges arising in dealing with users’ needs most memorably seen in relation to KH and the considerations brought into play given her own acknowledged comments about what both she and her husband felt regarding whether it was time to go.

[31]The claimant resigned her employment. She was not entitled to do so by reason of any breach on the part of the respondent. Accordingly, her claim fails and it is dismissed. EMPLOYMENT JUDGE BEEVER